Alice C. v. Bernard G.C.

• Decision Date: 27 September 1993
• Citation: 602 N.Y.S.2d 623,193 A.D.2d 97
• Parties: In the Matter of ALICE C. (Anonymous), Respondent, v. BERNARD G.C. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 623

602 N.Y.S.2d 623

193 A.D.2d 97

In the Matter of ALICE C. (Anonymous), Respondent, v. BERNARD G.C. (Anonymous), Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 27, 1993.

Banno & Guardino, Mineola (Carl C. Banno, of counsel), for appellant.

Marlo & Liebert, Garden City (Lisa K. Liebert and Martha S. Weisel, of counsel), for respondent.

Before BRACKEN, J.P., and BALLETTA, EIBER and COPERTINO, JJ.

EIBER, Justice.

Although a parent's duty to support his or her child until the child reaches the age of 21 years is a matter of fundamental public policy in New York, it has long been recognized that a child may be deemed emancipated, and thus forfeit the right to support, where the child voluntarily and without sufficient cause leaves the parent's home and withdraws from parental control and guidance (see, Matter of Roe v. Doe, 29 N.Y.2d 188, 324 N.Y.S.2d 71, 272 N.E.2d 567). On this appeal, we are asked to consider whether a child who left his father's home following a heated argument to live with his mother, and thereafter had little contact with his father, emancipated himself through his conduct, thus relieving the father of his obligation of support. For the reasons which follow, in the present case we reject the father's contention that his son was emancipated, and conclude that the father remains obligated to provide support for his child.

I

The petitioner Alice C. married the respondent Bernard C. in the State of Michigan on May 1, 1954, when she was 21 years old. Bernard, who was serving in the Navy when he and Alice were first married, subsequently earned his undergraduate degree at the University of Michigan, and attended medical school. The couple later relocated to New York, and had five children; four daughters and one son. In July 1982 after more than 28 years of marriage, Bernard and Alice separated. The parties were thereafter divorced by judgment dated July 31, 1984. In accordance with a stipulation of settlement dated February 3, 1984, which was not merged in the judgment, custody of the parties' two youngest daughters, 16-year-old Amanda, and 9-year-old Alexandra, was awarded to the petitioner mother. Custody of the parties' 13-year-old son Joseph was, however, awarded to the father, Bernard C. Pursuant to the judgment of divorce, Bernard, a physician specializing in internal medicine, was required to pay Alice maintenance in the sum of $150 per week until she reached the age of 65, and to pay the sum of $150 per week "each for the support and maintenance of the parties' infant children, Amanda and Alexandra". In view of the fact that the father was awarded custody of Joseph, no provision for Joseph's support was included in either the stipulation of settlement or the judgment of divorce.

In May 1986 when Joseph was 15 years old, he and his father became involved in a "confrontation", and as a result, Joseph left his father's home to live with his mother and sisters. Following this change in physical custody, the father began voluntarily making payments of $650 per month directly to Joseph, who turned these funds over to his mother to use for his support. However, the father ceased these payments in April 1989 when Joseph was 18 years old. The mother responded by filing a petition to modify the parties' divorce judgment by requiring the husband, inter alia, to pay $250 per week each for the support and maintenance of the two youngest children, Alexandra and Joseph ^*.

The mother's petition alleged that since entry of the judgment of divorce, "there has been a change of circumstances in that [the] child Joseph has returned to the home of the petitioner on or about May of 1986". She further alleged that there had been "a substantial increase in her expenses such as mortgage, taxes, tuition, utilities and the needs of the children". The father countered by filing a cross petition seeking to reduce the mother's maintenance to $75 per week, and to terminate maintenance in 1990 because "the petitioner has had a substantial increase in her earnings, and the respondent has had a substantial decrease in his net earnings".

II

A hearing on the parties' respective applications was commenced in July 1989. At the hearing, the father recalled that Joseph came to live with him shortly after the parties' separation, when he was a 13-year-old eighth grade student. The following year, when Joseph entered high school, his parents decided that he should attend a private school, because it was "closer to where we lived", and better suited "in terms of his needs". During Joseph's first year at his new school, he was an "A" student. However, by early 1986 Joseph was "having growing academic difficulties", and had become "an increasing social problem in the classroom". Joseph's academic performance deteriorated progressively during the winter of 1986, and, according to the father, with the decline in school performance, "our own interactions, father-son, which I thought excellent began to deteriorate". The tension in the father's relationship with his son "accumulated" one evening in May 1986 when he and Joseph began to quarrel over a school homework assignment. Although the father's testimony regarding the argument was somewhat vague, he stated that Joseph's tone of voice began to rise, and that the argument was on the point of turning into a physical confrontation when he advised Joseph that he was going to call the police. While his father telephoned the police precinct, Joseph put on his coat and prepared to leave. As Joseph left the residence, his father warned him, "you go out that door, do not come back". Although the father denied that he had "locked" Joseph out of his home, when questioned as to whether Joseph would have been permitted to reside with him following the altercation, he testified as follows:

"[Q.] Was he permitted to return to reside in your house after he left?

"[A.] He came back * * *

"[Q.] No just answer the questions Doctor, yes or no. Was he permitted to reside in your house after that date?

"[A.] In the presence of the police he would have been allowed back in the house, yes madam.

"[Q.] Was he in fact allowed back in the house?

"[A.] The answer is no, not until the police arrived.

"[Q.] He was not yet 18 at that time?

"[A.] That is correct.

"[Q.] He was not employed?

"[A.] He had a part time job with me.

"[Q.] He was not self sufficient?

"[A.] No madam.

"[Q.] So he had to go live somewhere, correct Doctor?

"[A.] He had to live somewhere yes.

"[Q.] After that date did you not make it your * * * you did not assume the responsibility for where he was going to live, is that a fair statement?

"[A.] I had no control of where he was going to live.

"[Q.] But he was not going to live with you guys?

"[A.] He exercised his own control.

"[Q.] OK, but he was not going to live with you?

"[A.] It seemed that way, yes."

The issue of the father's contact with Joseph after he went to live with his mother was touched upon only briefly during the hearing. Asked whether he had maintained contact with Joseph "on a regular basis" since his move, the father responded "I have tried numerous times". He then added, "I believe I saw him once, actually, last summer at his sister's wedding, but we did not speak".

The father additionally testified during the hearing that his business income in 1984, when the parties divorced, was approximately $99,000. Four years later, in 1988, his business income had increased to approximately $123,000.

Joseph C., then 19 years old, also testified at the hearing concerning the events which led him to leave his father's home in 1986. While Joseph maintained that he could not recall the cause of the quarrel which resulted in his move to his mother's home, he denied that he had "in any way threaten[ed] to use [his] hands" against his father during the altercation. Joseph admitted that, immediately following the argument, he voluntarily left his father's home, and made no efforts to return.

Discussing his relationship with his father, Joseph stated that they "got along superbly" during the first two and one-half to three years that they lived together. Joseph added that he still loved his father, despite their shared tendency to be stubborn. While Joseph admitted that he had made no attempt to contact his father since leaving his father's home, he added that, to the best of his knowledge, his father had made no attempt to contact him.

Joseph additionally testified that he was involved in an accident in 1983 while he was living with his father, and that he was subsequently awarded $41,000 in settlement of a personal injury suit. He received the money on his 18th birthday, after obtaining authorization from his father to withdraw the settlement funds. According to Joseph, his father signed the authorization without offering any advice or instruction about how to use the money, and he did not consult with his father about what to do with the funds. After obtaining the funds, Joseph initially placed $15,000 in an account with Merrill Lynch, and spent $13,000 to purchase a new car. He was later involved in two accidents, requiring the expenditure of an additional $7,000 to repair his car. Joseph further testified that he lent $5,000 to a close friend, who failed to pay him back, and that he spent approximately $1,200 on gifts for three of his sisters. Joseph also spent $2,400 to pay for his room and board and books for his first year at Hofstra University, $2,000 for clothing, and about $600 to purchase a video cassette recorder, refrigerator, and television for his dormitory room. At the time of the hearing, no money was left in the Merrill Lynch account.

Joseph entered Hofstra University in the fall of 1988, and registered for 16 credits during the fall semester, and 16 credits during the spring semester. However, he "had a problem with attendance", and ended up dropping all of his spring courses. He earned only six credits during his...