In this matter, a mother seeks payment from her ex-spouse for the cost of daycare incurred for their child. The dispute involves unraveling the true nature of the joint custodial arrangement. The mother of the child brought an order to show cause to enforce the judgment of divorce and to obtain a judgment for $7,447.11 - the father's contribution to childcare and unreimbursed health expenses. The mother also seeks attorneys fees and other relief.

The parties were divorced in December 2012. The judgment of divorce incorporated, but did not merge, their separation agreement. The couple have one child, now five years old, and the separation agreement states that the parties have "joint legal and shared physical custody of the infant." Pursuant to the agreement, the parties agreed to share responsibility for the child's daycare and unreimbursed health expenses. In the judgment of divorce, the father agreed to make a pro rata contribution toward the child's medical, dental, and vision insurance. The judgment also provided that all "reasonable childcare expenses" would be paid on a pro rata basis as well. There is no provision in the separation agreement that requires either party to consent or approve childcare arrangements. Conversely, the agreement makes no mention of what childcare arrangements existed on the date of the execution of the agreement, and there is no language permitting either parent to make childcare arrangements without the consent or [*2]approval of the other.

In her application before this court, the mother attests that since the entry of the judgment of divorce she has paid $11,682.98 in child care and unreimbursed health care expenses for the child. The amount of $7,447.11 is the father's 64% share of those expenses. The separation agreement, while making provisions for payment of daycare expenses, does not discuss the circumstances under which either parent can seek reimbursement from the other. With regard to the reimbursement for the pro rata share of certain other expenses, the agreement provides that the mother was required no later than the fifth day of each month to provide an invoice for these expenses to the father. She acknowledges that she did not follow this reimbursement procedure, but argues that it does not obviate the obligation of the father to reimburse her the 64% share of these expenses.

The dispute in this case also involves the party who provided the day care services and the circumstances under which it occurred. The mother states that at a certain time in 2013, she changed the method of providing daycare for the child. She lived with her parents and they were providing care for the child while she worked. The mother then decided that the grandmother, who previously provided uncompensated daily care for the child, should be paid. They agreed that the grandmother would be paid $50 per day for her services, and the mother of the child commenced payments in July 2013. There is no evidence before this court that the mother conferred with the father regarding paying the grandmother. Two months after the payments for daycare began, she notified the father that she was paying these expenses.

As part of her proof in this case, the mother produces a series of checks made payable to the grandmother for the weekly cost of daycare. Importantly, the mother contends that she informed her ex-husband that she had commenced paying the grandmother $50 per day for childcare, via an email dated September 7, 2013. The email does not request that the father pay any portion of the daycare cost. In the email, the mother states that she pays her mother $40 a day. The email suggests that if the father were to pay his share he would be paying $400 a month, and then says, "I haven't asked that of you." Nowhere in the email does the mother ask the father to approve the daycare arrangements.

The father, in his response, notes that the couple have joint custody which requires joint decision-making. The father contends that it was never discussed or agreed that the child's grandmother would be compensated for "spending time with our daughter." The father admits that in the Fall of 2013, there were discussions between the couple regarding preschool for the child. At that point, the father acknowledged that his ex-wife told him that she was paying her mother to provide day care for the child. The father contends that he agreed to pay for the preschool, and the mother agreed that she would continue to pay the grandmother to provide daycare for the child directly without any contribution by him.

The father argues that if he knew that the mother was incurring costs for childcare, he may have been able to modify his work schedule to free up time to attend to his child during the day. As part of his defense, the father subpoenaed information from the grandmother. The grandmother, in a sworn statement delivered to the court, acknowledges that she does not have any invoices for childcare, and there is no proof that any were rendered. She acknowledges that she has been providing day care services at her home [*3]from March 2010 to the present. There is no evidence of any written agreement between the mother and the grandmother regarding the provision of day care services.

In her reply affidavit, the mother acknowledges that her legal address is with her parents in the city of Rochester. She also contends that she did not make any "new decision" regarding the grandmother providing daycare for the child. Her role simply changed from providing occasional babysitting, to daily childcare. The mother argues that the father has been aware since September 2013 that she was paying the grandmother for her services and that the father was comfortable with the level of care that the grandmother has provided. The mother also argues that the amount charged by the grandmother - $50 per day - is a reasonable amount for childcare and that both parents are receiving the benefit from the childcare.

Joint custody is generally used to describe joint legal custody or joint decision making. Bast v. Rossoff, 91 NY2d 723, 728 (1998). At the heart of joint decision-making is a determination that many important decision require the acquiescence and approval of both parents. The spending of post-divorce family resources or incurring additional expenses for the child - not contemplated at the time of the signing of the separation agreement or the divorce - are at the heart of such joint decision-making. The concept of joint decision-making precludes either parent from unilaterally spending available income without approval of the other parent.

In this case, the mother entered into a contract with the grandmother to pay daycare expenses for the child. She had no legal authority to bind her ex-husband to that contract. There is no provision in the separation agreement or the judgment of divorce requiring the father to agree to these expenses or, in the absence of his agreement, to pay them. The mother did have the right to seek a judicial determination ordering the father to pay his proportionate share of those daycare services for the child, if the court concluded that the daycare expenses were in the "best interests" of the child.

In this case, joint decision-making and the father's express approval was required before the mother could commit to pay $200 per week in child care expenses. The mother, as a joint custodial parent, does not have the authority to commit the father to pay these expenses without his approval and there is no evidence that he agreed to pay these expenses. The mother began incurring the expenses in July 2013, two months before she notified the father that she was paying for a service that they had previously obtained for free from the child's grandmother. Even if the September 2013 email is considered a request to the father to pay his proportionate share of these expenses, there is no evidence that he agreed to pay them.

The mother agreed to joint custody with her ex-husband. Joint custody means joint decision-making. The mother was required to obtain an express approval before incurring a $10,000 ($200/wk) annual expense for childcare. To allow one parent to commit the other's financial resources without the express approval of that second parent, violates the concept of joint-decision-making and joint custody. The mother's claim for daycare expenses is denied.

The claim for reimbursement of medical and other expenses is granted. These expenses were reasonable and necessary and the couple, in signing the agreement, understood that the child would from time to time incur these expenses. Because these expenses are expressly permitted under the agreement, the father is obligated to pay his [*4]share.

The wife also claims attorneys fees from bringing this application to the court. While this court has required the father to pay the medical and other expenses, the wife acknowledges that she did not follow the reimbursement protocol set forth in the agreement. Having admitted her non-compliance with the requirements of the agreement regarding the timely submission of these disputed invoices, the court declines to award attorneys fees.

SUBMIT ORDER