Chamberlin v. Chamberlin

• Decision Date: 19 June 1997
• Citation: 658 N.Y.S.2d 751,240 A.D.2d 908
• Parties: In the Matter of Linda S. CHAMBERLIN, Respondent, v. Boyd M. CHAMBERLIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 751

658 N.Y.S.2d 751

240 A.D.2d 908

In the Matter of Linda S. CHAMBERLIN, Respondent, v. Boyd M. CHAMBERLIN, Appellant.

Supreme Court, Appellate Division,

Third Department.

June 19, 1997.

Billinson, Weinshenker & Balducci (Elizabeth A. Burns, of counsel), Syracuse, for appellant.

Paul N. Tavelli, Ithaca, for respondent.

Before CARDONA, P.J., and MERCURE, CREW, WHITE and CARPINELLO, JJ.

CREW, Justice.

Appeal from an order of the Family Court of Tompkins County (Sherman, J.), entered January 25, 1996, which, inter alia, denied respondent's cross application, in a proceeding pursuant to Family Court Act article 4, to terminate respondent's support obligation with respect to the parties' older son.

The parties were married in 1972 and have two sons, born in 1977 and 1983, respectively. Following the parties' divorce in 1985, respondent was directed to pay $70 per week in child support until such time as the older son (hereinafter the child) attained majority, became emancipated or died, at which time respondent's weekly obligation was to be reduced by $30. Thereafter, in May 1991, the parties stipulated to a $30 per week increase in support, bringing respondent's total child support obligation to $100 per week.

Petitioner subsequently commenced this proceeding in August 1995 seeking an upward modification in support, and respondent cross-petitioned to terminate his support obligation with respect to the child, contending that the child had abandoned him. At the conclusion of the hearing that followed, the Hearing Examiner issued his report and, ultimately, Family Court determined, inter alia, that the child's actions would not relieve respondent of his support obligation as long as the child continued to be a full-time student and reside in petitioner's home. This appeal by respondent followed.

To be sure, a parent has a statutory obligation to support his or her child until such time as the child reaches 21 years of age (see, Family Ct. Act § 413[1][a] ). It is well settled, however, that "while the duty to support is a continuing one, the child's right to support and the parent's right to custody and services are reciprocal" (Matter of Roe v. Doe, 29 N.Y.2d 188, 193, 324 N.Y.S.2d 71, 272 N.E.2d 567), i.e., in exchange for child support, a parent may impose reasonable regulations upon his or her child (see, id.). To that end, 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 or her right to support (see generally, Hiross v. Hiross, 224 A.D.2d 662, 663, 639 N.Y.S.2d 70; Radin v. Radin, 209 A.D.2d 396, 618 N.Y.S.2d 105; Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97, 109, 602 N.Y.S.2d 623; Cohen v. Schnepf, 94 A.D.2d 783, 784, 463 N.Y.S.2d 29).

Here, the conflict between respondent and the child may be traced to an incident that occurred in April 1989, at which time the child was 11 years old. While visiting respondent, the child overheard respondent and a friend having a conversation, during which the friend made a statement about one of the children in the house and respondent laughed. Embarrassed by the comment and by respondent's reaction, the child decided that he no longer wished to have a relationship with respondent.

The credible evidence at the hearing established that respondent thereafter apologized to the child and, together with the friend who made the offending comment, explained to the child that the statement had not been directed at him personally. Respondent's spouse also attempted to reason with the child and encouraged him to resolve this misunderstanding with respondent, as did petitioner. Notwithstanding the child's steadfast refusal to participate in scheduled visitations, respondent continued to ask the child to attend visitations and repeatedly attempted to engage the child in conversation, only to be met with one-word responses. Respondent and his spouse also unsuccessfully sought counseling in an effort to foster a positive relationship between respondent and the child. Finally, the record indicates that, with the exception of the child's 18th birthday, respondent provided the child with gifts on his birthday and at Christmas and invited the child to participate in holiday...