In the Matter of Glen L.S. (anonymous) v. (anonymous)

• Decision Date: 09 November 2011
• Citation: 89 A.D.3d 856,932 N.Y.S.2d 177,2011 N.Y. Slip Op. 08160
• Parties: In the Matter of GLEN L.S. (Anonymous), respondent,v.DEBORAH A.S. (Anonymous), appellant. (Proceeding No. 1).In the Matter of Deborah A.S. (Anonymous), appellant,v.Glen L.S. (Anonymous), respondent. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 856

932 N.Y.S.2d 177

2011 N.Y. Slip Op. 08160

In the Matter of GLEN L.S. (Anonymous), respondent,

v.DEBORAH A.S. (Anonymous), appellant. (Proceeding No. 1).In the Matter of Deborah A.S. (Anonymous), appellant,

v.Glen L.S. (Anonymous), respondent. (Proceeding No. 2).

Supreme Court, Appellate Division, Second Department, New York.

Nov. 9, 2011.

Barrocas & Rieger, LLP, Garden City, N.Y. (Kieth I. Rieger and Michael L. Fried of counsel), for appellant.Sari M. Friedman, P.C., Garden City, N.Y. (Allyson D. Pereg and Katherine Kocienda of counsel), for respondent.

ANITA R. FLORIO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ.

In related support proceedings pursuant to Family Court Act article 4, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Nassau County (Dane, J.), dated March 16, 2011, as denied her objections to an order of the same court (Watson, S.M.), dated December 16, 2010, which, after a hearing, granted the father's petition to vacate the child support provisions of the parties' stipulation of settlement, which was incorporated but not merged into the judgment of divorce entered September 13, 1996, based on the constructive emancipation of the parties' child, and denied stated branches of the mother's cross petition, which, inter alia, sought a de novo review of the father's child support obligation retroactive to January 1, 1997.

ORDERED that the order dated March 16, 2011, is modified, on the law and the facts, by deleting the provision thereof denying the mother's objection to so much of the order dated December 16, 2010, as granted the father's petition to vacate the child support provisions of the parties' stipulation of settlement, which was incorporated but not merged into the judgment of divorce entered September 13, 1996, based on the constructive emancipation of the parties' child, and substituting therefor a provision granting that objection and vacating the provision in the order dated December 16, 2010, granting the father's petition; as so modified, the order dated March 16, 2011, is affirmed insofar as appealed from, without costs or disbursements.

“It is fundamental public policy in New York that parents are responsible for their children's support until age 21” ( Matter of Gold v. Fisher, 59 A.D.3d 443, 444, 873 N.Y.S.2d 139; 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). Nevertheless, under the doctrine of constructive emancipation, where “a minor of employable age and in full possession of [his or] her faculties, voluntarily and without cause, abandons the parent's home, against the will of the parent and for the purpose of avoiding parental control [he or] she forfeits [his or] her right to demand support” ( Matter of Roe v. Doe, 29 N.Y.2d at 192, 324 N.Y.S.2d 71, 272 N.E.2d 567; see Matter of DeLuca v. Strear–DeLuca, 84 A.D.3d 801, 801, 922 N.Y.S.2d 529; Family Ct. Act § 413). “In contrast, where it is the parent who causes a breakdown in communication with his [or her] child, or has made no serious effort to contact the child and exercise his [or her] visitation rights, the child will not be deemed to have abandoned the parent” ( 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). “ ‘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; see Matter of DeLuca v. Strear–DeLuca, 84 A.D.3d 801, 922 N.Y.S.2d 529).

Although the Family Court is in the best position to assess the credibility of the witnesses ( see Matter of Commissioner of Social Servs. v. Jones–Gamble, 227 A.D.2d 618, 619, 643 N.Y.S.2d 182), here, there is an insufficient basis in the record to support the Family Court's determination that the parties' son unjustifiably refused contact and visitation with his father.

The testimony elicited at the hearing established the father's claim that his son chose not to speak with him on the telephone and did not return his text messages following an altercation between the two in February 2008. However, the evidence also revealed that the altercation between the two prompted the son to state that “he wanted to commit suicide” and resulted in therapeutic intervention. Based on these mental health concerns, the son, via his mother, requested that the father not contact him so that he could “sort out” the issues, indicating a temporary reluctance on the son's part to contact the father.

The father acknowledged that he made no effort to enforce visitation with the assistance of the court. The father made no efforts to contact the son through the school other than one telephone call to a guidance counselor, and admittedly never attempted to visit the son at his mother's home after the incident. Indeed, all attempts at communication by the father ceased in October 2009, eight months after the incident. The father made no attempts to contact his son during his...