All hail Sir Richard of Rochester! Chivalry is not dead.
Although opening his January 17, 2015 opinion in Cornell v. Cornell with “Sticks and stones will break my bones, But words will never harm me,” Monroe County Acting Supreme Court Justice Richard A. Dollinger nevertheless held that vile words to a child support-paying mother from her college-aged son were not to be tolerated.
As Justice Dollinger summarized, this case tested whether a son who engaged in vile disparagement of his mother, may strip his father of his right to claim support, including payment of college expenses. The Court held that it did.
No one should be permitted to refer to their mother in such fashion, and then, without recanting or asking for forgiveness, seek the court’s assistance to have that person support their future life. This court will not condone such actions by an unworthy son.
In his motion papers before the Court, the father sought child support from the mother and payment for college expenses. The mother argued that her obligations to pay any support – including the cost of college education – were obviated because of the child’s calculated estrangement from her. She claimed that her son described her as a “douche bag” and an “asshole,” and that this, among other behavior, has caused alienation between her and the son.
The underlying facts were undisputed. The parties entered a separation agreement in 1998 and modified it several times over the next decade. A post-judgment order, issued in 2004, required the father to pay child support because the child then lived with his mother. The child changed residences in September 2013 and the father subsequently moved to terminate his support obligation and sought from the mother. The father now also sought the mother’s proportionate contribution to college costs for the child, which the father claimed to have paid in full.
The child moved in with his father coincidental with the son leaving for community college. He had enrolled as a fulltime student, and decided to live off-campus.
Justice Dollinger acknowledged that under conventional New York law, the child’s residing with his father would otherwise trigger the mother’s obligation to pay support. However, the mother argued that the child, through his comments and attitude toward her, forfeited his right to any support.
While fundamental public policy in New York dictates that parents are responsible for their children’s support until age 21, under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support.
Here, the child was college-aged, and clearly employable. The central issue, then, was whether the child’s conduct in this case could be construed as abandonment. Abandonment is more than a mere reluctance to see a parent. There can be no constructive emancipation if the parent, through his or her own misconduct toward the custodial parent and the child, caused the breakdown in communication with the child. The non-custodial parent must make a serious effort to maintain the relationship with the child.
The evidence before the court established that the child repeatedly used the word “fuck” in discussing issues with his mother. Based just on the mother’s testimony, however, Justice Dollinger could not conclude that this word, although used repeatedly, was “deeply offensive.” The mother never suggested that she was offended or disturbed by her son’s repeated use of this term.
But, Justice Dollinger found the son’s language easily “deeply offensive” upon evaluation of text messages introduced at trial. There, the son referred to his mother as an “asshole” on several occasions, and a “douche bag” on another.
There is no justification for a high school graduate and college-student to refer to his mother in such terms.
Justice Dollinger noted that courts have commented on these two terms and described them as displaying an utter lack of taste and propriety, vulgar and offensive. Other courts have tried to differentiate between language that is merely “vulgar and mildly offensive” and words that are “deeply offensive.”
Justice Dollinger found that the use of these terms was indicative of a substantial hatred and/or disrespect for the mother. A child who utters such terms about his parent cannot realistically expect the court to ignore such conduct and order the maligned parent to pay any form of support for the child.
A child over the age of 18, seeking reimbursement for college expenses, cannot use such language toward a parent and then, either directly or through his other parent, seek child support, and/or payment of college expenses.
In addition, there was substantial and uncontroverted evidence that the child refused all contact with his mother. This acknowledged behavior – ignoring his mother’s entreaties and using despicable language in his reference to her – easily supports the conclusion that the child has abandoned his mother.
Justice Dollinger then considered whether constructive emancipation existed even if the proof failed to establish that the father did not support or condone the child’s alienating behaviors. The Court noted that at least one court held that to suspend his child support payments, a parent was required to show that the other parent intentionally orchestrated and encouraged the estrangement of [the father] from the children or actively interfered with or deliberately frustrated [his] visitation rights.
In the proof here, there was no evidence that the father, who sought the child support and contribution to college expenses, condemned or disciplined his son for using these disgusting terms toward to his former wife and the child’s mother.
Although he was not obligated to refute or condemn these comments, his apparent indifference to them reflects a moral ambivalence that seems unworthy of a parent with an obligation to foster a relationship between the child and his mother.
Finally, Justice Dollinger considered whether the child’s conduct obviated his mother’s obligation, as part of her support, to pay for the son’s college expenses. The Court held that the payment of the son’s college expenses were part of the general support obligation and an extension of the child’s right to support from his parents. It would be incongruous to find that the son’s conduct forfeited his right to child support, but required his mother to pay his college expenses. In Justice Dollinger’s view, any support from the mother was forfeited by the son’s callous comments and intemperate behavior.
The child, having severed his ties to his mother in a despicable fashion, was emancipated as far as the mother is concerned. His conduct caused an alienation which could not be rewarded. The mother has no obligation to pay support for a person – over the age of 18 – who acts in this manner.
Vulgar words, voiced by a son against his mother easily justify discontinuing the mother’s obligation to support the ungrateful child.
John Nacca, of Rochester, represented the mother. Ted A. Barraco, of Rochester, represented the father.