In the Matter of John Deluca v. Strear–deluca

• Decision Date: 03 May 2011
• Citation: 922 N.Y.S.2d 529,2011 N.Y. Slip Op. 03846,84 A.D.3d 801
• Parties: In the Matter of John DeLUCA, appellant,v.Marcy J. STREAR–DeLUCA, respondent.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 801

922 N.Y.S.2d 529

2011 N.Y. Slip Op. 03846

In the Matter of John DeLUCA, appellant,

v.Marcy J. STREAR–DeLUCA, respondent.

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

May 3, 2011.

The Law Firm of Gary N. Weintraub, LLP, Huntington, N.Y., for appellant.JOSEPH COVELLO, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and L. PRISCILLA HALL, JJ.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Hoffmann, J.), dated October 12, 2010, which denied his objection to an order of the same court (Joseph–Cherry, S.M.), dated June 10, 2010, which, after a hearing, in effect, denied his motion to vacate a child support order dated May 12, 2009.

ORDERED that the order dated October 12, 2010, 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). 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 Gold v. Fisher, 59 A.D.3d 443, 444, 873 N.Y.S.2d 139; Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97, 105, 602 N.Y.S.2d 623). “The burden of proof as to emancipation is on the party asserting it” ( Schneider v. Schneider, 116 A.D.2d 714, 715, 498 N.Y.S.2d 23; see Matter of Gold v. Fisher, 59 A.D.3d at 444, 873 N.Y.S.2d 139).

Where, as here, it is the parent who causes a breakdown in communication with his or her child, or has failed to make a serious effort to contact the child, the child will not be deemed to have abandoned the parent ( see Matter of Alice C. v. Bernard G.C., 193 A.D.2d at 109, 602 N.Y.S.2d 623). The father's sporadic and inconsistent attempts to contact the subject child were insufficient to establish that the child abandoned him ( see Matter of Gold v. Fisher, 59 A.D.3d at 444, 873 N.Y.S.2d 139; Schneider v. Schneider, 116 A.D.2d at 715, 498 N.Y.S.2d 23). Moreover, while the subject child had, at certain times in the past,...