Melgar v. Melgar

• Citation: 2015 N.Y. Slip Op. 07127,132 A.D.3d 1293,17 N.Y.S.3d 233
• Parties: Eileen MELGAR, Plaintiff–Appellant, v. Luis MELGAR, Defendant–Respondent.
• Decision Date: 02 October 2015
• Court: New York Supreme Court Appellate Division

132 A.D.3d 1293
17 N.Y.S.3d 233
2015 N.Y. Slip Op. 07127

Eileen MELGAR, Plaintiff–Appellant,
v.
Luis MELGAR, Defendant–Respondent.

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

Oct. 2, 2015.

[17 N.Y.S.3d 234]

Hogan Willig, PLLC, Amherst (Michael J. Colletta of Counsel), for Plaintiff–Appellant.

Mattingly Cavagnaro LLP, Buffalo (Melissa A. Cavagnaro of Counsel), for Defendant–Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DeJOSEPH, JJ.

MEMORANDUM:

Defendant moved in this postjudgment matrimonial proceeding, inter alia, to terminate child support for his daughter on the ground of emancipation. We conclude that Supreme Court erred in granting that part of the motion without conducting a hearing. We therefore modify the order accordingly, and we remit the matter to Supreme Court for a hearing on that part of the motion ( see generally Ortman v. Ortman, 265 A.D.2d 926, 926–927, 695 N.Y.S.2d 805). Initially, we reject plaintiff's contention that the court was without authority to deem the child emancipated because the child was enrolled in college full time for the spring 2014 semester. The parties' Separation and Property Settlement Agreement, which was incorporated in the judgment of divorce, provided that child support would terminate if the child was financially independent and economically self-sufficient, but not if the child was a full-time college student. At the time of defendant's motion, however, the child was not a full-time college student, and it was therefore proper for the court to consider whether the child was emancipated.

“It is fundamental public policy in New York that parents are responsible for their children's support until age 21” ( Matter of Burr v. Fellner, 73 A.D.3d 1041, 1041, 900 N.Y.S.2d 656; seeFamily Ct Act § 413 [1] [a] ). A child may become emancipated before that age where “ ‘the child becomes economically independent through employment and is self-supporting’ ” ( Matter of Cedeno v. Knowlton, 98 A.D.3d 1257, 1257, 951 N.Y.S.2d 412; see Matter of Smith v. Smith, 85 A.D.3d 1188, 1188, 927 N.Y.S.2d 120). “The fact that a child may work full time is not determinative, as a child cannot be deemed economically independent if he or she still relies upon a parent for significant economic support”

[17 N.Y.S.3d 235]

( Matter of Drumm v. Drumm, 88 A.D.3d 1110, 1113, 931 N.Y.S.2d 180; see Matter of Thomas B. v. Lydia D., 69 A.D.3d 24, 29–30, 886 N.Y.S.2d 22). The burden of proof as to emancipation...