MEMORANDUM AND ORDER
Appeals (1) from three orders of the Family Court of Rensselaer County (E. Walsh, J.), entered January 3, 2018 and January 17, 2019, which, among other things, partially dismissed petitioners application, in proceeding No. 1 pursuant to Family Ct Act article 4, to modify a prior order of support, and (2) from two orders of said court, entered January 17, 2019 and April 17, 2019, which, among other things, granted petitioners application, in proceeding No. 3 pursuant to Family Ct Act article 4, to hold respondent in willful violation of a prior order of support.
Seemanti Ramanath (hereinafter the mother) and Ganpati Ramanath (hereinafter the father) are the parents of two children (born in 1996 and 1999). The parties were married in 1992 but subsequently divorced. In 2013, the parties entered into a separation and settlement agreement that was incorporated, but not merged, into the judgment of divorce. The settlement agreement provided, among other things, that the parties would equally share in the childrens college expenses and that the consent of both parties would be required as “a condition precedent to the parental obligation to contribute to the costs thereof, which consent shall not be unreasonably withheld.” The mother thereafter filed a modification petition, which was ultimately resolved in a January 2017 order entered on consent. According to that order, the mothers child support obligation was decreased due, in part, to the parties’ agreement to equally split the childrens college expenses.
In August 2017, the mother commenced the first of these proceedings seeking to modify the January 2017 consent order. The mother sought, among other things, the elimination of her obligation to contribute to the childrens college expenses. The father moved to dismiss the modification petition. The mother then filed a violation petition against the father. The Support Magistrate, as relevant here, partially granted the fathers motion by dismissing so much of the modification petition as sought to eliminate the mothers obligation to contribute to the older childs college expenses. The Support Magistrate otherwise denied the motion and ordered a hearing on the issue of whether the mother consented to the younger child attending an out-of-state university and, therefore, had to contribute to such childs college expenses. The Support Magistrate also scheduled a hearing on the mothers violation petition. Prior to the hearing, however, the Support Magistrate dismissed the violation petition on the basis that the mother failed to allege sufficient facts to warrant her requested relief. In two separate January 2018 orders, Family Court denied the mothers objections to the Support Magistrates determinations with respect to her modification and violation petitions.
Meanwhile, the father filed two violation petitions – one in November 2017 asserting that the mother refused to pay, among other things, her share of the younger childs college expenses for the 2017 fall semester and another one in February 2018 alleging that the mother refused to pay her share of the childrens 2018 spring semester college expenses. A combined hearing was eventually held on the remaining part of the mothers modification petition and the fathers violation petitions. Following the hearing, the Support Magistrate denied the mothers request to eliminate her obligation to contribute to the younger childs college expenses. Regarding the November 2017 violation petition, the Support Magistrate held that the mother was in willful violation for failing to pay the younger childs 2017 fall semester college expenses. As to the February 2018 violation petition, the Support Magistrate found that the mother was not in willful violation but nonetheless held that the mother was liable for arrears as to the childrens 2018 spring semester college expenses. The mother filed objections, which Family Court denied in two separate January 2019 orders.
In May 2018, the father moved for counsel fees based upon the willful violation finding. The Support Magistrate granted the motion to the extent of directing the mother to pay $3,406.01 in counsel fees. Family Court, among other things, denied the mothers objections thereto in an April 2019 order. These appeals by the mother ensued.
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Regarding the mothers modification petition, “[a] parent seeking to modify a child support order arising out of an agreement or stipulation must demonstrate that the agreement was unfair when entered into or that there has been a substantial, unanticipated and unreasonable change in circumstances warranting a downward modification” (Matter of Hoyle v. Hoyle, 121 A.D.3d 1194, 1195, 993 N.Y.S.2d 792 [2014]; see Matter of Covington v. Boyle, 127 A.D.3d 1393, 1393, 6 N.Y.S.3d 785 [2015]). In partially granting the fathers motion to dismiss the mothers modification petition, the Support Magistrate found the mother failed to sufficiently allege a change in circumstances so as to eliminate her obligation to pay for the older childs college expenses. Although the mother challenges this determination, her arguments do not appear to address the sufficiency of the allegations raised in her modification petition. Rather, the mother relies on proof from the hearing and points out that she was not provided with the bills in order to pay the older childs college expenses and that she was blocked access to the childrens financial aid applications. Even if true, however, such facts do not constitute the required change in circumstances. The record also supports the Support Magistrates conclusion that the mother sought similar relief in her initial modification petition that resulted in the January 2017 consent order. Upon our review of the mothers modification petition, the Support Magistrate correctly found that she did not sufficiently allege a change in circumstances to permit a modification of her obligation to pay for the older childs college expenses (see Etzel v. Etzel, 22 A.D.3d 906, 908, 803 N.Y.S.2d 219 [2005]).
The mother also asserts that the Support Magistrates determination that she was obligated to pay for her share of the younger childs college expenses because she impliedly consented to such child attending an out-of-state university was erroneous. We disagree. The settlement agreement provided that the consent of both parents to a childs attendance at a college was a condition precedent to each party contributing to the childrens college expenses. The hearing testimony discloses that the father advised the mother that the younger child was going to attend an out-of-state university and that the mother “never withheld consent.” The father also testified that, after he told the mother that the younger child was going to attend an out-of-state university, the mother never told him that she did not consent to such decision. To the extent that the mother contends that she was not adequately consulted about the younger childs decision, as the Support Magistrate found, the settlement agreement did not require that the parties consult with each other concerning where a child eventually matriculated for college. In view of the foregoing, the determination that the mother gave implied consent will not be disturbed (see Matter of Susko v. Susko, 181 A.D.3d 1016, 1018, 118 N.Y.S.3d 810 [2020]; Matter of Heinlein v. Kuzemka, 49 A.D.3d 996, 997–998, 854 N.Y.S.2d 560 [2008]).
Finally, the mother challenges the willful violation finding made against her. Although she contends that any failure to pay was not willful because she was provided with inaccurate or incomplete bills, the record belies this contention. Furthermore, in view of the finding of a willful violation, the imposition of counsel fees to be paid by the mother was mandatory (see Family Ct Act §§ 438[b]; 454[3]). The mothers remaining arguments have been considered and are unavailing.
ORDERED that the orders are affirmed, without costs.
FOOTNOTES
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. The mother did not raise any argument with respect to the January 2018 order dismissing her violation petition. As such, the mothers appeal regarding such order is deemed abandoned (see Matter of Paul Y. v. Patricia Z., 190 A.D.3d 1038, 1040 n. 2, 137 N.Y.S.3d 836 [2021]).
Aarons, J.
Garry, P.J., Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.