It is common for a divorce settlement agreement to provide that a child will be emancipated if he or she leaves the residence of the custodial parent. The result is the stated reduction in child support payments to the custodial parent. However, if the child not only leaves the custodial parent, but moves in with the non-custodial parent, may that parent obtain child support from the former custodial parent? That will depend on the language, or more particularly, the lack of language of the parents’ agreement.

Such is the lesson of the July 10, 2013 decision of the Appellate Division, Second Department, in Samuelson v. Samuelson. In that case, the parties were divorced in January, 2011. The divorce judgment incorporated the parties’ 2009 surviving stipulation of settlement.

Under that agreement, the father agreed to pay the mother basic child support of $1,150 per month for the parties’ two children until the occurrence of an “emancipation event,” defined to include a “change in custody.” The stipulation further provided that in the event one child was emancipated, the father’s basic child support obligation would be reduced to $846 per month.

Two months after the divorce judgment was entered, the parties agreed to transfer custody of their son from the mother to the father. Several months later, the father moved for an award of child support from the mother, to be “credited against my child support payments re our minor daughter.” The father claimed he was on the verge of personal bankruptcy.

Supreme Court Queens County Justice William Harrington denied the father’s motion, accepting the mother’s argument, and finding that the parties’ obligations were set by their agreement. The father failed to establish an unanticipated and unreasonable change in circumstances, or that the child’s needs were not being met.

The Second Department affirmed. The parties’ agreement was binding. Since the stipulation set forth the plaintiff’s child support obligation in the event of a change of custody of one of the children, a change in custody of one of the children could not be considered unanticipated.


Continue Reading Child Support: When One of the Children Switches Homes

The fact that a father set his daughter up with her own apartment when not away at college could not be used by the father as a basis to discontinue making child support payments to the mother.

Such was the holding in Trepel v. Trepel, a July 12, 2013 decision New York County Supreme Court Justice Lori S. Sattler.

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.


Continue Reading Child Support Continues: Full-Time College Student With Own Apartment When Not At School Does Not Reside "Full-Time Away From the Home of the Mother"

The emancipation of a child does not automatically result in the downward modification of an unallocated order of child support. Rather, the support payor has the burden of proving that the existing  amount of unallocated child support is excessive based on the needs of the remaining unemancipated children.

Such was the holding of the Appellate Division, Second Department, in its May, 2013 decision in Lamassa v. Lamassa.

In this case, the parties had entered into a stipulation of settlement of their divorce action that was read into the record. Then when the parties eldest child turned 18, the father unilaterally, and without a court order, reduced his child support payments. He then further reduced the amount of the support payments each time one of the parties’ remaining three children reached the age of 21 years.

Only then did the father move, in effect, to reduce the amount of child support payments and to cancel child support arrears accruing before that application.

At the hearing before Supreme Court, Richmond County Court Attorney/Referee Fay M. de Grimston, the father testified that as each of the children reached 21 years of age, he reduced the amount of support payments. He claimed that the mother had accepted the checks from him without objecting orally or in writing. The mother denied that she agreed to a reduction of the support payments. She claimed that she did not receive any checks directly from the father, but rather from the children. She asked the children to tell the father that the amount was wrong.

The mother also testified about an (unspecified) attempt to enforce the child support obligation. In addition, three of the parties’ children also testified and stated that the support checks were given to them to pass on to their mother; and that they never saw the father give checks directly to the mother (two of the children were still living with the mother at the time of the hearing).

The Referee concluded that the father was not entitled to a reduction in the amount of the support payments, or to cancellation of support arrears. The father had unilaterally reduced his support payments without court order, but had not provided credible proof of an oral agreement to modify the support obligation.

Affirming the determination that the father was not entitled to retroactive relief, the Second Department held that the father was not entitled to a reduction of the amount of child support payments, or a cancellation of child support arrears:

When child support has been ordered for more than one child, the emancipation of the oldest child does not automatically reduce the amount of support owed under an order of support for multiple children. In addition, a party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children.


Continue Reading Emancipation Of One Child Does Not Automatically Result in a Downward Modification of Unallocated Child Support

Peter_Pan_by_nk_title.pngAt age 18, the child becomes an adult, legally beyond the reach of parental decisions. However, not until age 21 does the legal obligation to support that child come to an end (unless extended by agreement).

A parent’s obligation to support may end (or be suspended) before that, as when a child marries, enters the armed forces, or becomes economically independent.  However, as a practical matter as long as the child remains under a parent’s roof, economic independence may not be found.

Take the June 28, 2011 of the Appellate Division, Second Department, in Smith v. Smith. There, the Court affirmed Suffolk County Family Court Richard Hoffman ‘s denial of a father’s objections to the order of Support Magistrate (and Pace Law School Professor) Cheryl Joseph-Cherry which awarded $200.00 per month child support to the wife/mother.

The parties’ son worked full-time. He paid for his own car insurance and cell phone.  However, the appeallate court found it persuasive that the mother still paid for his food, shelter, clothing, and health and dental insurance.

The decision does not provide greater detail. We don’t know what the child “does” or how much the child earns. Presumably, if the child is in school, we would have been told.

However, the Court did place primary reliance upon the First Department’s 2009 decision in Matter of Thomas B. v Lydia D. That decision, itself placed heavy reliance upon the Second Department’s decision in Matter of Fortunato v. Fortunato, 242 A.D.2d 720, 662 N.Y.S.2d 570 (1997). In Fortunato, the child was found to be emancipated because he was:

working an average of 30 to 35 hours per week … [,] he used his earnings to meet all of his personal expenses, including car insurance payments and telephone charges, and … he voluntarily contributed modest sums to his mother for room and board. Moreover, the son was not attending school, and had no plans to save money for tuition or return to college in the immediate future.


Continue Reading Child's Economic Independence, Not Full-Time Employment, Signals End of Support Obligation