Bates v. Bates

• Decision Date: 27 March 1970
• Citation: 310 N.Y.S.2d 26,62 Misc.2d 498
• Parties: In the Matter of William BATES, Petitioner, v. John BATES, Respondent. * Family Court of New York, Westchester County
• Court: New York Family Court

Page 26

310 N.Y.S.2d 26

62 Misc.2d 498

In the Matter of William BATES, Petitioner, v. John BATES, Respondent. ^*

Family Court of New York, Westchester County.

March 27, 1970.

As Amended April 30, 1970.

[62 Misc.2d 499] John P. Farrauto, Yonkers, for petitioner.

Morris H. Halpern, New York City, for respondent.

DECISION

HAROLD L. WOOD, Judge.

By petition dated and verified May 13, 1968, William Bates sought an order of support, under Article 4 of the Family Court Act, as 'the son of the respondent and is attending Miami Dade College, Miami, Florida,' claiming 'inadequate support and refusal to pay college tuition'.

The legal and chronological history of this proceeding albeit somewhat lengthy, is, in the court's opinion, necessary for an orderly resolution of the novel issues here presented.

On July 26, 1968 respondent was arraigned on the petition aforementioned and, neither admitting nor denying the allegations therein contained, consented to the entry of an order, dated July 26, 1968, by Judge Slifkin, a judge of this Court, wherein it was 'ORDERED, that the respondent is to pay Three Hundred ($300.00) Dollars for tuition for September semester at Miami Day (sic) Jr. College, North Miami, Florida, plus he is to put up rent security and he is to pay the sum of Sixty ($60.00) Dollars a month rent to petitioner's landlord direct, and he is to give petitioner the sum of Thirty ($30.00) Dollars a week direct for living expenses. He is also to furnish petitioner with an airline ticket to Florida. (Respondent agrees to do this on condition he is furnished with a transcript of petitioner's marks. If petitioner withdraws from college, he will consider this tantamount to failure.'

On July 30, 1968 petitioner, by petition dated and verified July 30, 1968, made application for an increase modification of the said order of July 26, 1968 stating as a 'subsequent change of circumstances' justifying modification that '$30.00 a week support would be inadequate for petitioner to maintain himself in Florida'.

On August 20, 1968 a lengthy hearing was commenced before Judge Slifkin on the petition for the increase modification and adjourned for continuation to September 17, 1968. On September 17, 1968 a telegram was received by the Court from petitioner's mother advising that petitioner 'is sick bedridden' and requesting, Inter alia, a postponement of his case. As requested, the continuation of the hearing was adjourned to October 21, 1968. However, on October 21, 1968, the Court once again was advised by telegram from petitioner's mother that 'William is sick can't attend.'

Once again, the hearing was adjourned to October 29, 1968, at 2:30 P.M. On that date a telegram from petitioner's mother was again sent to the court, but received at 3:30 P.M., advising that she would appear (on her own independent and pending case in Family Court for support) 'only if judge will direct my husband to pay lawyer's fees for me and my son for a lawyer of calibre of Mr. Bates lawyer. * * * I would like to get a new date for trial set after my Alabama divorce is set aside. Mrs. Joan Bates (William Bates).' Naturally, neither petitioner nor his mother appeared on October 29, 1968. However, respondent, through his attorney and at the Court designated time for the hearing, to wit: 2:30 P.M. (and before the receipt of the telegram) presented certain unsworn facts to the court regarding, inter alia, a purported fraudulent purchase of a 1968 Corvette automobile by petitioner and his mother, alleging that respondent's name was forged upon a retail installment contract for said car.

Based upon the nonappearance of petitioner on the increase modification application, the Court (Slifkin, J.), on the record, dismissed the petition and, further, suspended the original consent order of support. By order, dated October 29, 1968 Judge Slifkin ordered the 'Order of Support, dated July 26, 1968 be and the same is suspended; and the modification petition be and hereby is dismissed with prejudice * * *.'

These proceedings remained quiescent until September 25, 1969 when, by petition dated and verified September 25, 1969, petitioner sought not only to reinstate the suspended order of support of July 26, 1968 but also to increase support to Three Hundred ($300.00) Dollars per week ('* * * according to his father's income and earning capacity)'. Petitioner, further, assigned as justification therefor that 'there has been a change of circumstances in that said support order was suspended on October 29, 1968 and petition (sic) has no visible means of support'.

Extensive hearings were held on this matter before this Court on January 20, 1970 and January 28, 1970. It is one of the contentions of the respondent (vehemently and capably briefed) that this matter must be dismissed because the conduct of the petitioner, as the son of the respondent, has been such as to constitute a complete emancipation relieving the father from the duty of support of his child.

Investigation by the Court of that proposition discloses it to be most novel and the resolution thereof ordinarily would mandate a substantial review of the testimony adduced. The Court however, chooses to quote part of the facts set forth by respondent's attorney on this issue.

'The father takes the position that the public policy of this State and our nation dictates that an assaultive, cruel, disrespectful, wasteful, ne'er-do-well and deceitful son is not entitled to the largesse and bounty of the father, regardless of the father's finances, because the son has, both in fact and in deed, any by operation of law, emancipated himself and is barred and estopped from seeking or receiving any financial support from his father, particularly in the context of Undisputed evidence that he is but four months from his 21st birthday; is healthy and employable; has made no effort whatsoever to obtain employment; has rebuffed his father's efforts to obtain employment for him in the father's very own business; has not applied himself successfully to either schooling or study, but has withdrawn from several out of state colleges he selected and in which his father had enrolled him, and for all of which expenses, including boarding thereat, the father had paid, aside from a $30. to $50. weekly allowance, and all of which the son has totally dissipated, including the shocking telephone charges of some $3600 he ran up at Bethany College in defiance of his father's and the school's orders to the contrary, after such activity had been discovered.' (Respondent's memorandum, pp. 2, 3; emphasis is original).

Taking this statement of petitioner's conduct at face value (and it must be emphasized that petitioner has explained a good deal of his conduct by other and persuasive testimony), does that constitute such an emancipation of petitioner as to relieve respondent of the duty of support?

It may be cited as a general principle of law that 'the rights and duties * * * arising from the relation of parent and child are reciprocal, the general duty to support, educate and protect the child (rest) on the parents * * * and they having on the other hand in general the right to the custody and control of the child * * * and to his services and earnings * * * to obedience by the child * * *.' 67 C.J.S. Parent and Child § 2b, p. 629.

Emancipation is a renunciation by a parent of the latter's legal duties whereby he surrenders all his parental rights to the child or others. 67 C.J.S. Parent and Child § 88, p. 812. In determining whether a child has been emancipated it is the intention of the Parent which governs and, further, it is the intention of a parent who has control and/or custody of the child involved. See St. Croix v. St. Croix, 17 A.D.2d 692, 229 N.Y.S.2d 969; Spurgeon v. Mission State Bank, C.C.A.8, 151 F.2d 702; Fiedler v. Potter, 180 Tenn. 176, 172 S.W.2d 1007.

Whether or not a parent emancipates his minor child, however, rests with the parent and not with the child. Rounds Bros. v. McDaniel 133 Ky. 669, 118 S.W. 956; Wadoz v. United National Indemnity Co., 274 Wis. 383, 80 N.W.2d 262.

'Emancipation 'is a product primarily of some act or omission of the parent, and cannot be accomplished by an act of the child alone.' 39 American Jurisprudence 702, Section 64; Roxana Petroleum Co. v. Cope, 132 Okl. 152, 269 P. 1084, 60 A.L.R. 837.' Schirtzinger v. Schirtzinger, 95 Ohio App. 31, 32, 117 N.E.2d 42, 44.

Intent to emancipate may be express or oral or implied from the parent's conduct, Town of Plainville v. Town of Milford, 119 Conn. 380, 177 A. 138; Crosby v. Crosby, 230 A.D. 651, 246 N.Y.S. 384; Cohen v. Delaware L. & W.R. Co., 150 Misc. 450, 269 N.Y.S. 667; it may be effected by implication of law, as distinguished from voluntary act of parent, as by the conduct of the parent inconsistent with his performance of his parental obligations or by assumption of the infant of a status inconsistent with subjection to control and care of the parent. Murphy v. Murphy, 206 Misc. 228, 133 N.Y.S.2d 796.

Emancipation has been implied where a father able to support a minor son forces the latter to leave home and work elsewhere to sustain himself (Smith v. Gilbert, 80 Ark. 525, 98 S.W. 115); where a parent, through his own actions, becomes so degraded and dissolute that morals and decency excuse his child from living with him (Nichols v. Harvey & Hancock, 206 Ky. 112, 266 S.W. 870; where a child has been deserted or abandoned by a parent (Spurgeon v. Mission State Bank, supra).

There is no presumption of emancipation; rather, so long as the child is a minor, the presumption is that he is not emancipated (Cafaro v. Cafaro, 118 N.J.Law 123, 191 A. 472; Straver v. Straver, 59 A.2d 39, 26 N.J.Misc. 218) and the burden of proving emancipation of a minor by the parent is upon him who asserts and relies thereon (Spurgeon v. Mission State Bank, supra; Cafaro v. Cafaro, supra; Straver v. Straver, supra; Carricato v. Carricato,...