Drago v. Drago
| Decision Date | 28 March 1988 |
| Parties | In the Matter of Kristine DRAGO, Respondent, v. Charles DRAGO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Barry S. Gedan, Bronx, for appellant.
Before THOMPSON, J.P., and WEINSTEIN, RUBIN and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
In a support proceeding pursuant to Family Court Act article 4, the father appeals from an order the Family Court, Nassau County (Mellan, H.E.), entered September 25, 1986, directing (a) payment of $75 per week to the Support Collection Unit, to be increased to $128 per week upon the petitioner daughter's completion of a State-funded program for runaways, and (b) payment of $10 a week toward $575 in arrears. By order of the same court (De Maro, J.) entered October 21, 1986, the father's objections to the order entered September 25, 1986, were overruled.
ORDERED that the order is affirmed, without costs or disbursements.
The petitioner is the eldest child of a marriage that ended in divorce in 1984. By stipulation of the parties incorporated in the judgment of divorce, the mother was given actual physical custody of the children. The father was to continue to support them until they reach the age of 21, contingent upon their continued residence in New York. In June 1986 the petitioner was removed to Florida by her mother. It is undisputed that the father stopped making child support payments for the benefit of the petitioner on July 1, 1986. Shortly thereafter, the petitioner was told by her mother to leave her home and seek refuge with her father. However, the father did not invite the petitioner to live with him. Consequently, she was forced to seek refuge at a State-funded group home where she was allowed to live for six months at no cost. At the insistence of the Department of Social Services, she instituted separate proceedings against her parents to procure support. After an extensive hearing, the Family Court entered an order of support, finding that the petitioner had done nothing to relieve her father of his support obligation.
On the record before us we find no basis for disturbing the findings of the hearing examiner who was in the best position to assess the credibility of the witnesses and the evidence proffered ( see, Arnold v. State of New York, 108 A.D.2d 1021, 486 N.Y.S.2d 94, appeal dismissed 65 N.Y.2d 723, 492 N.Y.S.2d 29, 481 N.E.2d 569). Nor do we find that the hearing examiner's determination was contrary to the credible evidence warranting a different outcome ( see, Matter of McCarthy v. Braiman, 125 A.D.2d 572, 510 N.Y.S.2d 3).
Pursuant to Family Court Act § 413 a parent is obligated to support his or her children until they are 21 years of age. The instant case is distinguishable from those cases where the child voluntarily and without cause leaves the parents' home in order to avoid parental control, resulting in the forfeiture of the right to support ( see, e.g., Matter of Roe v. Doe, 29 N.Y.2d 188, 193, 324 N.Y.S.2d 71, 272 N.E.2d 567; Matter of Parker v. Stage, 43 N.Y.2d 128, 134, 400 N.Y.S.2d 794, 371 N.E.2d 513). The petitioner has made out a clear case of misfeasance and neglect on the part of her parents (see, Matter of Roe v. Doe, supra ).
The father cannot cite his daughter's expulsion from the home of her mother, the custodial parent, as a defense to the payment of support. The record reveals that the mother repeatedly demanded that the daughter move in with her father despite the daughter's protestations that she had "nowhere to go". In fact, the mother provided the daughter with money for the air fare to New York. In addition, the mother's alcohol abuse resulted in an tumultuous home environment for the petitioner. Where, as here, the child had good cause to abandon her parent's home, the support obligation will not be terminated (see, Matter of Roe v. Doe, supra; see also, Matter of Darene H. v. Patricia S., 90 Misc.2d 558, 394 N.Y.S.2d 807).
The record further establishes that the father turned the petitioner away when she requested permission to live with him, citing her prior truancy and inability to abide by rules. Instead, he demanded that she either return to a boarding school she had previously attended, join the military, or select another boarding school. Although it is beyond cavil that a parent may impose reasonable regulations upon a child in return for maintenance and support, the father is not relieved of his support obligation by...
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...custody, which request was approved" (Matter of Knoll v. Kilcher, supra at 687, 473 N.Y.S.2d 887). Furthermore, in Matter of Drago v. Drago, 138 A.D.2d 704, 526 N.Y.S.2d 518, this court concluded that a child who left her alcoholic mother and refused her father's demand to attend boarding s......
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