Decided March 25, 2010

Washington v Washington, 56 AD3d 463, reversed.

APPEARANCES OF COUNSEL

Amy S. Nord, Valley Stream, for appellant.

Barry A. Washington, respondent pro se.

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated. [*2]

In this nonjury trial, the parties charted their own course, effectively removing from the case the question whether the trust funds were exhausted and thereby eliminating plaintiff mother's burden on this issue. The Appellate Division erred in holding that no evidence was adduced as to the means and abilities of the parties to contribute to their children's college education expenses. Such evidence was adduced, and we conclude as a matter of law that defendant father had sufficient{**14 NY3d at 779} means to contribute to his sons' college education expenses within the meaning of the parties' separation agreement. Defendant father's remaining arguments in support of affirmance are without merit.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.