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.
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.
In 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…