Harvey, J. (dissenting). We respectfully dissent.
In our view, Supreme Court did not abuse its discretion in determining that defendant demonstrated "a substantial change in circumstance” (Domestic Relations Law § 236 [B] [9] [b]) that justified modifying the parties’ judgment of divorce "so as to relieve Defendant from any further obligation to pay *1027college or higher education expenses for the parties’ daughter”. It must be remembered that because the separation agreement in this case merged into the divorce decree, this is not simply a matter of strict contract interpretation. Accordingly, while it is true that defendant did undertake to pay for both his children’s college educations, it is not reasonable to require him to bankrupt himself to meet that obligation. Plaintiff does not contradict defendant’s assertion that defendant has already spent over $93,000 in paying for four years of his son’s college education and two years of his daughter’s schooling. There can be little dispute that college expenses, especially at private institutions such as those selected by the parties’ children, have soared beyond a point that could have been reasonably foreseen at the time these parties made their agreement. It is unfortunate that defendant’s savings could not have been stretched further, but defendant’s proof on the record indicates that without the excess moneys heretofore provided by the college fund, his diminishing income is insufficient to pay his daughter’s expenses without going further into debt. Consequently, it is our view that defendant presented sufficient evidence of changed circumstances to justify the modification made by Supreme Court.
Mikoll, J. P., concurs. Ordered that the order and amended judgment are reversed, on the law, with costs, and motion denied.