Father and Adult SonAt 18, the child becomes and adult. The parents no longer have custody. However, in New York, the parents’ duty to support does not end until the 21st birthday.

On other other hand, the parents’ duty to support may be relieved if a child attains economic independence through employment, entry into military service or marriage. Further, the child may be deemed constructively emancipated if, without cause, they withdraw from parental supervision and control.

Consider Baker v. Baker, a June 12, 2015 decision of the Appellate Division, Fourth Department. The parties’ son was constructively emancipated in June, 2012 when he moved out of the mother’s residence and into an apartment with friends in an effort to avoid the mother’s rules requiring him to attend school and not use illicit drugs. Until then, the father had been paying child support to the mother. However, after “being treated for withdrawal,” the son moved in with the father.

The question for the court was whether the child’s unemancipated status was revived entitling the father to collect child support. Supreme Court, Niagara County Justice Catherine R. Nugent-Panepinto denied the father’s application.

The Fourth Department reversed. The appellate court agreed with the father that the lower court erred in concluding that the child’s return to parental custody and control neither revived his unemancipated status, nor reinstated the support obligations of his parents

A child’s unemancipated status may be revived provided there has been a sufficient change in circumstances to warrant the corresponding change in status. . . . Generally, a return to the parents’ custody and control has been deemed sufficient to revive a child’s unemancipated status.

Although most of the cases concerning a revival of a child’s unemancipated status have involved a child’s return to the home that he or she abandoned versus the home of the noncustodial parent, the Fourth Department concluded that the return to the noncustodial parent’s supervision and control does not preclude a revival of unemancipated status.

The mother argued that because the father had stipulated to the earlier order that the child was emancipated, therefore termination the father’s support obligation, the father was required to establish an unanticipated and unreasonable change of circumstances. However, the Court held that despite the father’s stipulation that the child was emancipated, the child is not bound by the terms of that agreement, and the issue in this case was the child’s right to receive adequate support. Even assuming, arguendo, that the father was required to show an unanticipated and unreasonable change of circumstances, the appellate court would nevertheless have concluded that the child’s substance abuse treatment and return to parental custody and control constituted such a change of circumstances.

In our view, the reversion to unemancipated status under the facts of this case would promote the underlying statutory principles requiring parents to support children until they reach the age of 21.

The Fourth Department therefore reversed, granting that part of the father’s motion seeking an award of child support; remitting the matter to Supreme Court to calculate the amount of child support owed by the mother to the father.

Catharine M. Venzon, Esq., of Venzon Law Firm PC, of Buffalo, represented the father. Leonard G. Tilney, Jr., Esq., of Lockport, represented 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

Divorce Agreementl.jpgIn its February decision in Fragin v. Fragin, the Second Department interpreted a 1995 separation agreement which survived the entry of the parties’ 1995 divorce judgment. Pursuant to that agreement, the ex-wife was obligated to contribute to the basic graduate school expenses of the parties’ unemancipated children. However, in fact and not surprisingly, at the time the children enrolled in graduate school, they were emancipated under the terms of the agreement.

The Court does not provide us with the precise language of the parties’ agreement, if any, which defined that point at which a child would be deemed emancipated. In the absence of such a provision, a child is “unemancipated” for support purposes upon reaching age 21.  It is common, however, for there to be such a defining provision in an agreement. Often, a child will be deemed unemancipated for the purposes of the agreement beyond age 21 if the child is in college. There may be a limit on that extension, however, e.g., reaching age 22 or 23.

Here, it would seem absurd for the agreement to discuss payments for graduate school if such payments were only to be for the graduate-school education of children who were unemancipated at the time of their attendance in graduate school. Most children will not be attending graduate school before their very early 20s, or before they finish college. However, on the surface, this is how the Court appears to have reconciled the provisions of the agreement: there was no obligation to pay graduate school expenses of emancipated children. Accordingly, the ex-husband’s motion to enforce the agreement and compel the ex-wife to contribute to the payment of graduate school expenses was denied.

If I have misconstrued the decision (and the agreement) or the facts, it certainly won’t be the first time, or the last, and I apologize.

Nonetheless, as a general rule, and particularly when interpreting the nuances of an agreement, it would be extremely helpful for the Court to quote the language of all the relevant provisions of the agreement being reconciled.

Another example: In its 2007 decision in Weinberger v. Frankel, the Second Department interpreted a stipulation under which a father obligated himself “to pay his pro rata share of the tuition charged by his younger child’s school, the Adolph Schreiber Hebrew Academy of Rockland. The stipulation limited the appellant’s payments to the pro rata cost of the younger child’s prior school, the Hebrew Academy of Nassau County” (this is a quote from the decision, but apparently not the stipulation as no quotation marks are provided in the decision). After the mother enrolled the child at a school not listed in the stipulation, she sought the father’s share of tuition. Did the stipulation obligate the father to pay his share of the tuition charged by the Hebrew Academy of Nassau County, or did the stipulation obligate the father to pay his share of tuition at any school, but limited to a particular dollar amount; i.e., a sum equal to his share of tuition at the current school? The Court held that naming the school(s) in the stipulation was not a limitation of the schools for which the father agreed to pay, but only a limitation of cost. The father was required to pay.

Splitting hairs? Yes; but that’s what we do. Consider the time and expense needed to resolve these matters for the parties, their counsel, and the court.  Consider the angst of the children.

One of the primary purposes of the publication of judicial decisions should be to announce the effect of certain words or conduct. In that way, we may be guided in the future. Hopefully, and particularly in this time of budget crisis increasingly facing the judiciary branch, each published decision will help to reduce future litigation.