Opinion
F-06968-09/15J
05-09-2016
In the Matter of a Proceeding Under Article 4 of the Family Court Act Carmen C., Petitioner v. Tracy F., Respondent.
Carmen C., Petitioner, Pro Se Tracy F., Respondent, Pro Se Michael A. Rosenbloom, Esq., Attorney for the Child
Carmen C., Petitioner, Pro Se Tracy F., Respondent, Pro Se Michael A. Rosenbloom, Esq., Attorney for the Child Dandrea L. Ruhlmann, J.
Petitioner Carmen C. (Mother) filed a modification petition on July 17, 2015 seeking an order vacating child support for the parties' child, Justin F. (DOB:1997) alleging her son "age 18, did not wish to visit with [her]." Justin turned 18 years old in 2015. By cross petitions filed August 21, 2015 and September 4, 2015 respectively, Respondent Tracy F. (Father) seeks an upward modification of child support. Mother's petition was transferred to this Court (see Fam Ct Act § 439[a]; see also Matter of Rubino v Morgan, 203 AD2d 698 [3d Dept 1994], appeal after remand, aff'd, 224 AD2d 903 [3d Dept 1996]; Matter of Mitchell v Remy, 24 AD3d 558 2d [2d Dept 2005]; Matter of Tornheim v Rube, 90 AD3d 1059 [2d Dept 2011][jurisdiction of support magistrate]) to determine the narrow issue of Mother's claim of constructive emancipation and/or alienation (see Matter of Coleman v Murphy, 89 AD3d 1500 [4th Dept 2011] [hearing required if prima facie case established for alienation]). This Court finds that Justin has not abandoned Mother and Father's behaviors while questionable do not constitute parental alienation. Mother's petition thus is denied. Father's petitions are remitted to the Support Magistrate for further proceedings. Procedural History:
The parties have been embroiled in litigation since their divorce in 2001. This Court addressed the custody and visitation of Justin on March 30, 2010, and its decision rendered after trial was affirmed by the New York State Supreme Court, Appellate Division, Fourth Department (Matter of Fox v Coleman, 93 AD3d 1187 [4th Dept 2012]). Mother later applied to Supreme Court for a contempt finding against Father. By order entered June 17, 2014, the Court, by Hon. Richard A. Dollinger, denied Mother's request to hold Father in contempt, however, fined Father $250.00 for breach of his agreement to consult with Mother concerning Justin's education. The Court found that there was no requisite change in circumstances to justify modifying the then current custodial arrangement. Mother next petitioned this Court arguing both that Father was in contempt for failure to pay the $250.00 as Supreme Court ordered, and parental alienation. Father cross-petitioned to modify the custodial order contending Justin no longer required a set visitation schedule with Mother. Father in the interim paid Mother the $250.00 and this Court denied the relief sought by both parties in its decision dated May 26, 2015. Decision:
Justin now attends college in Ohio and participates in sports. Mother is frustrated because planned visits with Justin either have been changed or not happened at all. Mother believes Father hinders her time with Justin. Much of Mother's proof consisted of events occurring after the filing of her modification petition, and this Court hereby conforms the pleadings to the proof (see Matter of Ariel C.W. - H., 89 AD3d 1438 [4th Dept 2011]). Mother testified that she and Justin attended six counseling sessions during the summer, before and after she petitioned to vacate support. After each counseling session they ate lunch together and she allowed Justin to practice driving in anticipation of his future road test. Mother too described her disappointment over a failed visit in July. She and Justin planned to attend a local radio station's concert and at the last minute (Mother believes due to Father's influence) Justin decided to exercise instead. Justin gave her a specific time to call him. She called as requested but he did not answer. She went to the concert late and alone.
Two events were of particular significance to Mother: Parents Weekend and Thanksgiving. In Fall 2015, Justin invited Mother to campus for Parents Weekend. Mother testified her time with Justin that weekend was unnecessarily limited by Father's interference. On Saturday she enjoyed lunch with Justin and they watched the college football game together, still these activities together spanned only about two hours. Father then insisted Justin go with him to get a haircut. Mother testified the next day she and Justin ate breakfast at McDonald's and attended church together before she left campus. Father attended the same church service. After Parents Weekend Mother sent Justin a care package containing his favorite foods, as evidenced by a receipt from a United Parcel Service of America (UPS) Store for shipping expenses from Rochester, NY to Wooster, OH and a $50.00 receipt from Target (Petitioner's Exhibit 4).
Thanksgiving 2015 was fraught with confusion. Over a Columbus Day recess Mother testified that Justin was at a "camp" for international students who remained at school over the break. Mother testified Justin called her complaining the "camp" was outside and he was cold. Father testified "that never happened" but when cross examined adjusted his testimony stating "I never said he didn't go to camp. I said he wasn't out cold somewhere." To avoid Justin again being stranded on campus, Mother paid her brother, Rodney B., who is employed by an airline to purchase a ticket for Justin to travel home for Thanksgiving. Mother proffered a check dated November 20, 2015 in the amount of $200.00 from Mother to Rodney B. (Petitioner's Exhibit 2). Mother expected Justin to spend half the Thanksgiving holiday with her, however, he spent no time at all with her. Father testified that he traveled to Ohio to retrieve Justin from campus since Justin did not receive the plane ticket in time. Father maintains he encouraged Justin to visit with Mother and blames Mother for failing to pick up Justin from his house. Father further testified that because Justin is on the college's track team, his recesses from college are limited. Father has planned future recesses to coordinate around Justin's collegiate sport schedule. Constructive Abandonment:
In New York parents are responsible to support their children until age 21 (Family Ct Act § 413 [1] [a]; Matter of Roe v Doe, 29 NY2d 188, 192-93 [1971]). Mother bears the burden of proving Justin's constructive emancipation (see Matter of Jurgielewicz v Johnson, 114 AD3d 945 [2d Dept 2014]). A child who is "of employable age and in full possession of [his] faculties, [who] voluntarily and without cause, abandons the parent's home, against the will of the parent and for the purpose of avoiding parental control . . . forfeits [his] right to demand support" (Roe, 29 NY2d at 192 [20 year old daughter attending college was denied child support after disobeying her father's reasonable rules by failing to live on campus and return to the family home over summer break]). Constructive abandonment applies equally to a noncustodial parent; a child "of employable age who actively abandons the noncustodial parent by refusing all contact and visitation, without cause, may be deemed to have forfeited his . . . right to support" (Matter of Saunders v Aiello, 59 AD3d 1090, 1091 [4th Dept 2009], quoting Matter of Chestara v Chestara, 47 AD3d 1046, 1047 [3d Dept 2008];Oneida County Dept. of Social Servs. v Christman, 125 AD3d 1409 [4th Dept 2015]; Cornell v Cornell, 47 Misc 3d 605 [Sup Ct, Monroe County 2015]; Jurgielewicz, 114 AD3d at 945; Matter of Gold v Fisher, 59 AD3d 443 [2d Dept 2009]). Justin has not abandoned his noncustodial parent, Mother. They attended counseling together during the summer. He invited her to Parents Weekend and the visit was positive enough that thereafter she sent him a care package to enjoy at college. Justin also called Mother while housed at the camp over Columbus Day recess (cf. Roe, 29 NY2d at 193). Since Justin began college he may be reluctant to visit with Mother (displayed by his failure to connect with Mother over Thanksgiving) based in part on Father's lack of encouragement. Regardless "[a] child's reluctance to see a parent is not abandonment, relieving the parent of any support obligation" (Saunders, 59 AD3d at 1091). Parental Alienation
Child support payments may be suspended where the "custodial parent has unjustifiably frustrated the noncustodial parent's right of reasonable access'" (Matter of Colicci v Ruhm, 20 AD3d 891, 891 [4th Dept 2005], quoting Matter of Smith v Bombard, 294 AD2d 673, 675 [3d Dept 2002] lv denied 98 NY2d 609 [2002]; see also Matter of Orange County Dept. of Social Servs. v Meehan, 252 AD 588 [2d Dept 1998]; Jurgielewicz, 114 AD3d at 946; Matter of Dempsey v Arreglado, 95 AD3d 1388 [3d Dept 2012], citing Labanowski v Labanowiski, 49 AD3d 1051, 1054 [3d Dept 2008]). To suspend payments Mother must prove Father is "either overtly or covertly undermining visitation'" (Matter of Smith v Smith, 283 AD2d 1000, 1000 [4th Dept 2001], quoting Matter of Catherine W. v Robert F., 116 Misc 2d 377, 378 [Fam Ct, Suffolk County 1982]). Active interference or deliberate frustration by Father of Mother's court-ordered visitation schedule "can, under appropriate circumstances" suspend Mother's child support payments (Coleman, 89 AD3d 1501, quoting Matter of Hiross v Hiross, 224 AD2d 662, 663 [2d Dept 1996]). Child support payments can be suspended if Father "intentionally orchestrated and encouraged the estrangement of [Mother]' or [if Father] actively interfered with or deliberately frustrated [her] visitation rights" (Matter of Curley v Klausen, 110 AD3d 1156, 1157 [3d Dept 2013], quoting Matter of Crouse v Crouse, 53 AD3d 750, 752 [3d Dept 2008]). Father testified that he did not intend to interfere with Mother's time with Justin during Parents Weekend: He like Mother arrived on Saturday and returned to New York immediately after he too attended church on Sunday at Justin's invitation. Father believed Justin was trying his best to accommodate both parents.
This Court finds Father was insincere and not credible when he testified he encouraged Justin to visit with Mother over Thanksgiving (see Matter of Danielle S. v Larry R.S., 41 AD3d 1188, 1189 [4th Dept 2007]; Matter of Whitney v Judge, 2016 WL 1709548 [4th Dept 2016]; Matter of Tucker v Miller, 2016 WL 1709596 [4th Dept 2016]); [court's assessment of the credibility of the witness is entitled to great weight]; still Father's actions do not "rise to the level of deliberate frustration of [Mother's] visitation rights" (Hiross, 224 AD2d at 663 [internal quotation marks and citation omitted]). Father consistently has testified that Justin may visit with Mother at Justin's discretion. The Court is mindful there is a constant undercurrent of embitterment between the parties that hinders Father from truly encouraging Justin to have meaningful contact with his Mother. Nonetheless as Justin is now a young adult of 18 years, the Court finds Father has not engaged in a pattern of undermining Justin's relationship with Mother so as to require this Court to vacate her support obligation. The Attorney for the Child's position also is consistent with a finding of no parental alienation.
Justin is a college student who is occupied not only with academics but with collegiate sports and has less time to spend with his parents. Mother should be allowed to attend all campus and sports activities. Father testified he recently moved to North Carolina. Justin's school recesses should be shared equally between Father's home in Raleigh, North Carolina and Mother's home in Rochester, New York.
NOW, THEREFORE, it is
ORDERED that Petitioner Carmen C. has not proven alienation and her modification petition filed July 17, 2015 to vacate support is denied; and it is further
ORDERED that Respondent's cross-petitions filed August 21, 2015 and September 4, 2015 are remitted to the Support Magistrate for further proceedings. Dated this 9th day of May, 2016 at Rochester, New York. ___________________________________ HON. DANDREA L. RUHLMANN FAMILY COURT JUDGE