Opinion
XXX.
Decided April 11, 2008.
This is a post judgment application by the defendant (hereafter husband) for a order adjudicating the parties' son G, born November 30, 1987, emancipated and suspending the husband's obligation to pay support for said child.
The parties were married on October 9, 1982. There are three children of the marriage, to wit: G born November 30, 1987; J born January 22, 1993; and N born June 9, 1994. Both parties are 48 years old.
The parties entered into a stipulation of settlement (hereafter "the stipulation") on September 12, 2006. On December 5, 2006, an addendum to the stipulation was executed. The addendum modified certain equitable distribution provisions of the stipulation. On April 3, 2007, a second addendum to the stipulation was executed. Said addendum modified the child support obligation to the extent it corrected errors in the child support calculation set forth in the September 12, 2006 stipulation. The parties were granted a judgment of divorce on April 23, 2007. The stipulation and addenda were incorporated and did not merge in the judgment of divorce.
In support of his motion for an order adjudicating G emancipated, the husband alleges as follows: he has not seen or spoken to G since September 2005 when G assaulted him, threw him off balance and pinned him to the ground; G was a wrestler in high school; as a result of the assault, he suffered bruised ribs and liver; the wife witnessed the incident; in December 2006, he sent G a Christmas gift that was not acknowledged; he has not received any information relating to G's progress in college.
The wife responds that the husband assaulted G with a tennis racket and the child did nothing more than defend himself by wrestling the husband to the ground and holding him there until he calmed down. She states further that after G released the husband, he came after him a second time and G was forced to again restrain him until he calmed down. She contends that the husband's alleged injuries were self diagnosed. She further states that she attempted to persuade the husband thereafter to apologize to G and attempt to effect a reconciliation, but the husband refused.
The wife points out that the parties' signed a stipulation of settlement on September 12, 2006 (a year after the incident between the husband and G) and thereafter signed a child support addendum on April 3, 2007. At the time the stipulation was signed, the husband and G had not spoken for a year. The Court notes that the husband did not negotiate a release of his statutory obligation to support G in the stipulation of settlement dated September 16, 2006 or the addendum dated April 3, 2007, nor did he raise G's purported emancipation as a defense to the wife's application submitted in October 2007 seeking a money judgment for G's college expenses. The Court further notes that G will be emancipated on November 30, 2008 when he turns 21 years old. (The stipulation of settlement does not require the husband to pay child support for a child over 21 who is a full time college student).
Based upon all of the foregoing, the motion is decided as follows:
The law on emancipation was set forth by the Appellate Division Second Department in Guevara v Ubillus , 47 AD3d 715 , on January 15, 2008, as follows:
It is fundamental public policy in New York that parents of minor children are responsible for their children's support until age 21 (see Family Ct Act § 413; Matter of Roe v Doe, 29 NY2d 188, 192-193; Matter of Cellamare v Lakeman, 36 AD3d 906). "Nevertheless, children of employable age and in full possession of their faculties who voluntarily and without cause abandon their home, against the will of their parents and for the purpose of avoiding parental control, forfeit their right *716 to demand support even if they are not financially self-sufficient" (Matter of Bailey v Bailey, 15 AD3d 577; see Matter of Roe v Doe, 29 NY2d 188, 192-193; Matter of Alice C. v Bernard G.C., 193 AD2d 97, 105). The evidence on the record sufficiently supports the finding that the petitioner, without good cause, abandoned the respondent's home on her 18th birthday in order to avoid parental control and to gain independence from her mother's restrictive household rules (see Matter of Roe v Doe, 29 NY2d 188; Matter of Bailey v Bailey, 15 AD3d 577; Matter of Commissioner of Social Servs. v Jones-Gamble, 227 AD2d 618; cf. Matter of Drago v Drago, 138 AD2d 704, 706).
There are however, two lines of cases relating to constructive emancipation that are clearly distinguishable, and the distinction must be carefully considered by a Court entertaining an application regarding constructive emancipation.
The concept of constructive emancipation was created by the Court of Appeals in 1971 in Roe v Doe, supra, andcontinued in Parker v Stage, 43 NY2d 128, to relieve a parent of the statutory obligation to support a child who had withdrawn from parental control by actually moving out of the parent's home and moving in with a classmate ( Doe v Roe, supra) or a boyfriend ( Parker v Stage, supra). Pursuant to the rule of law established by Roe v Doe, supra and Parker v Stage, supra, in Guevara v Ubillus, supra, quoted above, an 18 year old was denied support upon a finding that she moved out of her mother's home to avoid the mother's restrictive household rules. It is important to note that in this line of cases, the child (or the Department of Social Services on behalf of the child) is a party to the proceeding seeking support.
In 1983, the Appellate Division Second Department, in Cohen v Schnepf, 94 AD2d 783, expanded the concept of constructive emancipation to apply to a child of employable age who continued to reside with, and remained under the authority and control of, the residential custodial parent, but refused to submit to the authority and control of the other parent. (Although a parent is obligated to support a child until the age of 21, a Court lacks the authority to address custodial issues of parental access and decision-making once a child attains the age of 18 [ see, FCA 413; DRL 2; Matter of Lazaro v Lazaro, 227 AD2d 402]. However, residential custody remains a relevant consideration for the Court pursuant to DRL 240 [1-b] in determining child support issues regarding a child between the ages of 18 and 21, and this decision will therefore refer to a parent as a residential or non-residential custodial parent). In such cases, however, the child is not truly constructively emancipated, as he orshe remains entitled to support from the residential custodial parent. In reality, in any case with a fact pattern similar to Cohen v Schnepf, supra,( see, eg, Alice C. v Bernard G.C, supra; Chamberlain v Chamberlain, 240 AD2d 908; Christine C. v Robert N.M, NYLJ, March 28, 2008, p 27), the result of the Court's ruling is not that the child will be forced to support himself or herself, but rather, that the burden of support will fall 100% on the residential custodial parent, without regard to the Child Support Guidelines or an existing contractual obligation set forth in a separation agreement or stipulation of settlement.
A careful reading of Cohen v Schnepf, supra reveals that the residential custodial parent was largely responsible for the child's abandonment of the other parent, and accordingly, the residential parent was left with the burden of supporting the child. But this is not true in every case in which a parent, who is not the residential custodian, seeks the Court's permission to cease contributing to the support of a child between the ages of 18 and 21. The Court must be cognizant of the fact that in certain cases, a order deeming a child constructively emancipated will not effect the child, but will merely serve to place the entire support obligation on the residential custodial parent, who may be blameless vis-a vis the rift between the child and the non-custodial parent ( see, Alice C. v Bernard G.C., supra).
The law is well settled that a child support order deriving from a separation agreement incorporated but not merged with a judgment of divorce, may be modified by a court, only "upon a showing . . . that an unanticipated and unreasonable change of circumstances has occurred resulting in a concomitant need (emphasis added)" ( Davis v Davis , 13 AD3d 623 , quoting Merl v Merl, 67 NY2d 359; see also, Boden v Boden, 42 NY2d 210). The concomitant need has been interpreted to include, not only unmet financial needs of a child, but also the financial need of a payor parent who unexpectedly loses a job or becomes disabled ( see, Davis v Davis, supra; Cox v Cox, 108 AD2d 777). As a payor parent seeking to be relieved of a support obligation on the ground of constructive emancipation has no "concomitant financial need" for such relief, this Court holds as a matter of first impression, that an alleged unanticipated and unreasonable abandonment of said parent by a child is not grounds for a court to reapportion the parents' child support obligations set forth in a separation agreement or stipulation of settlement that has been incorporated and not merged in a judgment of divorce.
Separation agreements and stipulations of settlement almost universally provide detailed definitions of emancipation events, and parents are free to include the abandonment of a non-residential parent by a child over the age of 18 as an emancipation event. Despite the well settled rule of law prohibiting a Court from interfering with contractual allocations of child support obligations between parents, except upon a showing of unanticipated change of circumstances and concomitant need ( see, Merl v Merl, supra; Boden v Boden, supra), courts have nevertheless entertained applications seeking to modify the allocation of contractual child support obligations, on the ground that a child has been constructively emancipated ( see, eg, Verdrager v Verdrager, 294 AD2d 353; Alice C. v Bernard G.C. supra; Cohen v Schnepf, supra), without any consideration of the fact that the Court was modifying the parties' contract or the fact that the contract did not provide that the abandonment of a parent by a child was an emancipation event.
In the case at bar, the parties' stipulation sets forth well defined emancipation events that serve to terminate the husband's obligation to pay child support. Despite the fact that the husband and G had not spoken for a year prior to the execution of the stipulation, the stipulation does not include abandonment of a non-residential parent by a child as an emancipation event. Knowing full well that he and G has been estranged for a year, and that his son effectively wanted nothing to do with him, the husband, nevertheless, entered into a stipulation of settlement wherein he agreed to pay direct support, college, uncovered medical and other expense for G. The abandonment therefore, if it existed at all, was already well established prior to the execution of the stipulation of settlement and the continuation thereof does not constitute an unanticipated change of circumstances.
As set forth herein above, absent a contractual provision defining abandonment of a parent by a child as an emancipation event, a Court is not empowered to disturb the provisions of a separation agreement or stipulation of settlement allocating the parties' respective child support obligations. In the instant case, even if the Court did possess such authority, the existence of the alleged abandonment for a year prior to the execution of the stipulation of settlement and the husband's inability to establish any unanticipated change of circumstances mandate the denial of his application. Indeed, upon signing the stipulation of settlement, the husband was clearly cognizant of the relevant facts and assumed the risk that any perceived or actual abandonment would continue unabated.
The husband's application is denied on the further ground that he admittedly made virtually no effort to communicate with G and mend the estrangement ( see, Raphael v Raphael, 309 AD2d 721; Verdrager v Verdrager, supra; Kinney v Simonds, 276 AD2d 882; Radin v Radin, 209 AD2d 396; Alice C. v Bernard G.C., supra; Lipsky v Lipsky, 115 AD2d 361).
Accordingly, the husband's application is denied.