Mark D. v. Brenda D.
| Decision Date | 02 March 2010 |
| Citation | 27 Misc.3d 713,900 N.Y.S.2d 599 |
| Parties | MARK D., Plaintiff v. BRENDA D., Defendant. |
| Court | New York Supreme Court |
Mark D., plaintiff pro se.
Joseph P. Ferri, Garden City, for defendant.
This is a post judgment of divorce application by the plaintiff (hereafter husband) for an order relieving him of his obligation to pay child support on the ground that the parties' daughter has constructively abandoned him.
The law on emancipation was set forth by the Appellate Division Second Department in Guevara v. Ubillus, 47 A.D.3d 715, 850 N.Y.S.2d 503, on January 15, 2008, as follows:
It is fundamental public policy in New York that parents of minor children 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 [1971]; Matter of Cellamare v. Lakeman, 36 A.D.3d 906, 829 N.Y.S.2d 588 [2007] ). "Nevertheless, children of employable age and in full possession of their faculties who voluntarily and without cause abandon their home, against the will of their parents and for the purpose of avoiding parental control, forfeit their right to demand support even if they are not financially self-sufficient" ( Matter of Bailey v. Bailey, 15 A.D.3d 577, 790 N.Y.S.2d 215 [2005]; Matter of Roe v. Doe, 29 N.Y.2d 188, 192-193, 324 N.Y.S.2d 71, 272 N.E.2d 567 [1971];Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97, 105, 602 N.Y.S.2d 623 [1993] ). The evidence on the record sufficiently supports the finding that the petitioner, without good cause, abandoned the respondent's home on her 18th birthday in order to avoid parental control and to gain independence from her mother's restrictive household rules (see Matter of Roe v. Doe, 29 N.Y.2d 188, 324 N.Y.S.2d 71, 272 N.E.2d 567 [1971]; Matter of Bailey v. Bailey, 15 A.D.3d 577, 790 N.Y.S.2d 215 [2005]; Matter of Commissioner of Social Servs. v. Jones-Gamble, 227 A.D.2d 618, 643 N.Y.S.2d 182 [1996]; cf. Matter of Drago v. Drago, 138 A.D.2d 704, 706, 526 N.Y.S.2d 518 [1988] ).
There are however, two lines of cases relating to constructive emancipation that are clearly distinguishable, and the distinctionmust be carefully considered by a Court entertaining an application regarding constructive emancipation.
The concept of constructive emancipation was created by the Court of Appeals in 1971 in Roe v. Doe, supra, and continued in Parker v. Stage, 43 N.Y.2d 128, 400 N.Y.S.2d 794, 371 N.E.2d 513, to relieve a parent of the statutory obligation to support a child who had withdrawn from parental control by actually moving out of the parent's home and moving in with a classmate ( Roe v. Doe, supra ) or a boyfriend ( Parker v. Stage, supra ). Pursuant to the rule of law established by Roe v. Doe, supra and Parker v. Stage, supra, in Guevara v. Ubillus, supra, quoted above, an 18 year old was denied support upon a finding that she moved out of her mother' s home to avoid the mother's restrictive household rules. It is important to note that in this line of cases, the child (or the Department of Social Services on behalf of the child) is a party to the proceeding seeking support.
In 1983, the Appellate Division Second Department, in Cohen v. Schnepf, 94 A.D.2d 783, 463 N.Y.S.2d 29, expanded the concept of constructive emancipation to apply to a child of employable age who continued to reside with, and remained under the authority and control of, the residential custodial parent, but refused to submit to the authority and control of the other parent. . In such cases, however, the child is not truly constructively emancipated, as he or she remains entitled to support from the residential custodial parent. In reality, in any case with a fact pattern similar to Cohen v. Schnepf, supra, ( see, eg, Alice C. v. Bernard G.C, supra; Chamberlin v. Chamberlin, 240 A.D.2d 908, 658 N.Y.S.2d 751; Christine C. v. Robert N.M, N.Y.L.J., March 28, 2008, p. 27), the result of the Court's ruling is not that the child will be forced to support himself or herself, but rather, that the burden of support will fall 100% on the residential custodial parent, without regard to the Child Support Guidelines or an existing contractual obligation set forth in a separation agreement or stipulation of settlement.
A careful reading of Cohen v. Schnepf, supra reveals that the residential custodial parent was largely responsible for the child's abandonment of the other parent, and accordingly, the residential parent was left with the burden of supporting the child. But this is not true in every case inwhich a parent, who is not the residential custodian, seeks the Court's permission to cease contributing to the support of a child between the ages of 18 and 21. The Court must be cognizant of the fact that in certain cases, a order deeming a child constructively emancipated will not effect the child, but will merely serve to place the entire support obligation on the residential custodial parent, who may be blameless vis-a vis the rift between the child and the non-custodial parent ( see, Alice C. v. Bernard G.C., supra ).
The law is well settled that a child support order deriving from a separation agreement incorporated but not merged with a judgment of divorce, may be modified by a court, only "upon a showing ... that an unanticipated and unreasonable change of circumstances has occurred resulting in a concomitant need (emphasis added)" ( Davis v. Davis, 13 A.D.3d 623, 787 N.Y.S.2d 113, quoting Merl v. Merl, 67 N.Y.2d 359, 502 N.Y.S.2d 712, 493 N.E.2d 936; see also, Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791). The concomitant need has been interpreted to include, not...
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Barr v. Denton
...v. Lazaro, 227 A.D.2d 402 (2d Dep't 1996); People ex rel. Minardi v. Cesnavicius, 208 A.D.2d 663, 664 (2d Dep't 1994); Mark D. v. Brenda D., 27 Misc. 3d 713, 715 (Sup. Ct. Nassau Co. 2010). The damages plaintiff claims from such a breach, however, are for his emotional distress. Non-economi......