At its heart, this decision was based upon the language of the parties’ surviving divorce stipulation of settlement. Under that stipulation, emancipation for child support purposes did include a change of full-time residence away from the Mother. Under the stipulation, emancipation included:
[The daughter’s] residing full-time away from the home of the Mother upon and after her 18th birthday, except that residence at boarding school, college or graduate school, or temporarily during summer camp or other organized summer program, shall not be deemed an Emancipation. The period, if any, from [the daughter’s] return to residence in the home of the Mother until the earliest of any other emancipation event shall be deemed a period prior to Emancipation for all purposes under this Agreement.
The father claimed that his daughter, who turned 18 in April, 2012, was emancipated under this clause as of November, 2012.
On an application by the mother to compel the father to continue paying child support, the father submitted his daughter’s affidavit. According to the daughter, in October, 2012 the mother had told her that she was going to move to Philadelphia to live with her boyfriend, which the mother did in November, 2012. The father then found an apartment for his daughter, sending her pictures of it while away at school at Emory College in Atlanta. The daughter signed a lease in November, 2012 and moved in over Christmas break from school after she and her father purchased furniture and household supplies.
The daughter went on to state that she did not want to live in Philadelphia, that she intended to return to her new apartment as her permanent residence when not in college and that she will use that address for her driver’s license and on tax returns. She acknowledged that she did intend to see her mother and father often when home from school.
The mother claimed that without consulting her, the father had rented the apartment purposefully to circumvent his child support obligation. She contended that this was not contemplated by the stipulation and that the daughter could not be found to reside away from the mother on a full-time basis while a full-time student at Emory.
The mother also claimed that she was struggling financially at the time the daughter left for college. She moved from New York because the father, who had cosigned the mother’s lease, ceased making payments to the mother of voluntary support that he had provided for several years after agreed-upon maintenance was paid in full. The mother claimed that for financial reasons, she gave up her New York apartment, moved first to her boyfriend’s house in Philadelphia and then to her mother’s house. The mother stated that she had now sublet a studio apartment in New York and would move to a two-bedroom apartment upon reinstatement of child support payments.
Justice Sattler ruled that the burden of proof as to emancipation was on the father. Neither party had offered case law construing this precise provision, as opposed to those “referencing a change of permanent residence.” Rather, the father relied on a line of cases relating to agreements where permanent residence was deemed to be an emancipation event. Reliance on such case law, Justice Sattler held, was misplaced. Gallina v. Gallina, 162 AD2d 219, 556 N.Y.S.2d 589 (1st Dept. 1990) Bodzak v. Bodzak, 48 AD3d 724, 853 N.Y.S.2d 166 (2nd Dept 2008) and Rocchio v. Rocchio, 213 AD2d 535, 623 N.Y.S.2d 917 (2nd Dept. 1995). Those cases evaluated the impact of an alleged change in permanent residence and were distinguishable from the standard to be met in the stipulation here.
Rather, the question presented here was what constituted residing full-time away from the mother’s home? Given the daughter’s residence for nine months a year in a dormitory in Atlanta, could the father demonstrate that his daughter resided full-time anywhere else?
The court considered the issue novel, finding no case law where a financially dependent child’s change of residence was to a place other than the residence of the parent seeking termination of support payments.
Justice Sattler noted that increasingly she had been presented with several cases where despite an agreement providing that child support payments do not terminate when a child attends college, the payor parent seek to reduce or terminate those payments. In those cases, a non-custodial parent alleges that the now-18-year-old child prefers to live with him or her, or does not wish to live with the parent who had primary physical custody. Factual support most often includes, as it does here, input from the child him or herself, a fact that this court finds problematic.
Factual support most often includes, as it does here, input from the child him or herself, a fact that this court finds problematic. Eighteen and nineteen year olds are asked to affirm that they have established a new and permanent residence and to assert a claim of independence and stability that the court views as unlikely. More often, a child’s participation may reflect the child’s concern that educational bills may not otherwise be paid or, as here, the attractiveness of proffered expense-free and relatively unsupervised independence.
Here, the daughter stated that the apartment provided by her father was her residence when she was not at school and that she will rarely visit and will never live at her mother’s boyfriend’s house in Philadelphia. Left unaddressed was the circumstance now presented, where the mother no longer lives in Philadelphia and asserted that, but for the father’s cessation of child support payments, she would rent a two bedroom apartment in New York.
Here, the parties’ intent in requiring that only a full-time change of residence constitutes emancipation was illuminated by reference to the use of the term “full-time” elsewhere in the Stipulation. Another provision of the stipulation provided that emancipation would also include “engaging in full-time employment upon and after her 18th birthday” constitutes an emancipation event. The concept of full-time employment was qualified, however, by the further provision that “. . . full-time employment during vacation and summer periods shall not be deemed an Emancipation.”
Examination of the stipulation as a whole made it clear to the Court that the parties intended that basic child support payments to the mother would continue during the period of the daughter’s residence at school. The Court rejected the mother’s [sic] contention that a change in the place where the daughter spent vacations and school breaks while attending school full-time in Georgia, can effectuate an emancipation event pursuant to the terms of the Stipulation.
By renting an apartment for his eighteen year old daughter to use on school breaks and paying all of the expenses of a residence, Plaintiff improperly used self-help to substitute voluntary payments to his daughter for payments to her mother, in contravention of the Stipulation and the Judgment of Divorce.
The father’s argument that his daughter was emancipated while she was residing on a full-time basis away at school, failed in light of the specific language of the stipulation. Accordingly, Justice Sattler found the father was obligated to continue child support payments.
There was no need to embroil the daughter further in her parents’ financial dealings.