Burr v. Fellner
| Decision Date | 18 May 2010 |
| Parties | In the Matter of Paul BURR, appellant, v. Jacqueline M. FELLNER, respondent. |
| Court | New York Supreme Court — Appellate Division |
73 A.D.3d 1041
In the Matter of Paul BURR, appellant,
v.
Jacqueline M. FELLNER, respondent.
Supreme Court, Appellate Division, Second Department, New York.
May 18, 2010.
Paul Burr, Montclair, N.J., appellant pro se.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Putnam County (Rooney, J.), dated June 1, 2009, which denied his objections to an order of the same court (Kaufman, S.M.), dated March 27, 2009, which, after a hearing, granted his petition for a downward modification of his child support obligation only to the extent that it modified his child support obligation for the parties' son.
ORDERED that the order dated June 1, 2009, is affirmed, without costs or disbursements.
It is fundamental public policy in New York that parents are responsible for their children's support until age 21 ( see Family Ct. Act § 413; Matter of Roe v. Doe, 29 N.Y.2d 188, 192-193, 324 N.Y.S.2d 71, 272 N.E.2d 567; Matter of Gold v. Fisher, 59 A.D.3d 443, 444, 873 N.Y.S.2d 139). Nevertheless, under the doctrine of constructive emancipation, "a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation" may forfeit any entitlement to support ( Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97, 109, 602 N.Y.S.2d 623; see Matter of Gold v. Fisher, 59 A.D.3d at 444, 873 N.Y.S.2d 139; Family Ct. Act § 413). However, "[a] child's reluctance to see a parent is not abandonment, relieving the parent of any support obligation" ( Radin v. Radin, 209 A.D.2d 396, 396, 618 N.Y.S.2d 105). Children are also emancipated if they become economically independent of their parents through employment, entry into military service, or marriage ( see
Alice C. v. Bernard G. C., 193 A.D.2d at 105, 602 N.Y.S.2d 623). " 'The burden of proof as to emancipation is on the party asserting it' " ( Matter of Gold v. Fisher, 59 A.D.3d at 444, 873 N.Y.S.2d 139, quoting Schneider v. Schneider, 116 A.D.2d 714, 715, 498 N.Y.S.2d 23).Contrary to the father's contention, he failed to meet his burden of establishing that his daughter is emancipated. The father failed to demonstrate that she abandoned the relationship with him ( compare Radin v. Radin, 209 A.D.2d 396, 618 N.Y.S.2d 105 and
Matter of Alice C. v. Bernard G.C., 193 A.D.2d at 110, 602 N.Y.S.2d 623 with Matter of Commissioner of Social Servs. v. Jones-Gamble, 227...To continue reading
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