Jurgielewicz v. Johnston

• Decision Date: 26 February 2014
• Citation: 981 N.Y.S.2d 733,2014 N.Y. Slip Op. 01325,114 A.D.3d 945
• Parties: In the Matter of Stanley R. JURGIELEWICZ, appellant, v. Kris M. JOHNSTON, respondent.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 945

981 N.Y.S.2d 733

2014 N.Y. Slip Op. 01325

In the Matter of Stanley R. JURGIELEWICZ, appellant,

v.Kris M. JOHNSTON, respondent.

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

Feb. 26, 2014.

Darren M. Shapiro, Jericho, N.Y., for appellant.

Robert C. Mitchell, Riverhead, N.Y. (John B. Belmonte of counsel), attorney for the child.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and SYLVIA O. HINDS–RADIX, 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 (Loguercio, J.), dated January 18, 2013, which, after a hearing, denied his petition to terminate his child support obligation on the grounds of constructive emancipation and parental alienation.

ORDERED that the order is reversed, on the facts, with costs, and the petition is granted.

“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;seeFamily Ct. Act § 413; Matter of Barlow v. Barlow, 112 A.D.3d 817, 976 N.Y.S.2d 573;Matter of Gansky v. Gansky, 103 A.D.3d 894, 895, 962 N.Y.S.2d 255;Schulman v. Schulman, 101 A.D.3d 1098, 1099, 956 N.Y.S.2d 577;Matter of Glen L.S. v. Deborah A.S., 89 A.D.3d 856, 857, 932 N.Y.S.2d 177). “However, 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. A child's mere reluctance to see a parent is not abandonment” (Matter of Barlow v. Barlow, 112 A.D.3d at 818, 976 N.Y.S.2d 573;see Matter of Grucci v. Villanti, 108 A.D.3d 626, 626–627, 969 N.Y.S.2d 493;Schulman v. Schulman, 101 A.D.3d at 1099, 956 N.Y.S.2d 577;Matter of Glen L.S. v. Deborah A.S., 89 A.D.3d at 857, 932 N.Y.S.2d 177;Matter of Turnow v. Stabile, 84 A.D.3d 1385, 1386, 924 N.Y.S.2d 292). “ ‘[W]here 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 Glen L.S. v. Deborah A.S., 89 A.D.3d at 857, 932 N.Y.S.2d 177, quoting Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97, 109, 602 N.Y.S.2d 623;see Matter of Barlow v. Barlow, 112 A.D.3d 817, 976 N.Y.S.2d 573;Schulman v. Schulman, 101 A.D.3d at 1099, 956 N.Y.S.2d 577;Matter of Dewitt v. Giampietro, 66 A.D.3d 773, 774, 887 N.Y.S.2d 210). Such a breakdown in communication between a parent and a child may result from the parent's “malfeasance, misconduct, neglect, or abuse” (Matter of Barlow v. Barlow, 112 A.D.3d at 818, 976 N.Y.S.2d 573, citing Matter of Wiegert v. Wiegert, 267 A.D.2d 620, 699 N.Y.S.2d 597). Where a child justifiably refuses to continue a relationship with a parent due to such parental conduct, the child will not be deemed to be self-emancipated ( see Matter of Barlow v. Barlow, 112 A.D.3d 817, 976 N.Y.S.2d 573;Labanowski v. Labanowski, 49 A.D.3d 1051, 857 N.Y.S.2d 737). “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 Barlow v. Barlow, 112 A.D.3d 817, 976 N.Y.S.2d 573;Schulman v. Schulman, 101 A.D.3d at 1099, 956 N.Y.S.2d 577;Matter of Glen L.S. v. Deborah A.S., 89 A.D.3d at 857, 932 N.Y.S.2d 177;Matter of Turnow v. Stabile, 84 A.D.3d at 1386, 924 N.Y.S.2d 292).

In addition, with regard to parental alienation, “[c]hild support payments may be suspended where the custodial parent unjustifiably frustrates the noncustodial parent's right of reasonable access” (Matter of Dempsey v. Arreglado, 95 A.D.3d 1388, 1389, 943 N.Y.S.2d 657;see Matter of Rivera v. Echavarria, 48 A.D.3d 578, 578, 852 N.Y.S.2d 236;Matter of Lew v. Sobel, 46 A.D.3d 893, 895, 849 N.Y.S.2d 586;Matter of Hecht v. Hecht, 222 A.D.2d 589, 635 N.Y.S.2d 280).

Here, the Family Court correctly determined that the father failed to meet his burden of demonstrating that the mother deliberately frustrated or actively interfered with his visitation rights at any time after the parties entered into a stipulation on May 11, 2011, in which the father agreed to continue to provide child support for the subject child ( see Matter of Rivera v. Echavarria, 48 A.D.3d at 578, 852 N.Y.S.2d 236;Matter of Hecht v. Hecht, 222 A.D.2d 589, 635 N.Y.S.2d 280). Accordingly, the Family Court properly declined to grant the father's petition to terminate his support obligation insofar as it was premised on the ground of parental alienation.

However, contrary to the Family Court's determination, the father met his burden of establishing that the subject child was constructively emancipated. This Court's power to review the evidence is as broad as that of the hearing court, and we may render the judgment that is warranted by the facts, bearing in mind that in a close case, the factfinder had the advantage of seeing and hearing the witnesses ( see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809). Here, the father established that a substantial change had taken place in his relationship with the subject child since the father and mother entered into the May 11, 2011, stipulation ( see generallyFamily Ct. Act §...