Opinion
2014-05-8
Louis M. ATLAS, Plaintiff–Appellant, v. Frances SMILY, Defendant–Respondent.
Advocate & Lichtenstein, LLP, New York (Jason A. Advocate of counsel), for appellant. Frances Smily, respondent pro se.
Advocate & Lichtenstein, LLP, New York (Jason A. Advocate of counsel), for appellant. Frances Smily, respondent pro se.
Order, Supreme Court, New York County (Lori S. Sattler, J.), entered May 1, 2013, which denied plaintiff's motion for an order permitting him to sell the marital residence pursuant to the terms of the parties' stipulation of settlement, and granting him a money judgment, unanimously reversed, on the law, without costs, to the extent of awarding plaintiff a judgment in the amount of $1,943, and remanding the matter for a hearing on the issue of the parties' youngest child's emancipation.
Plaintiff alleges that he is entitled to a money judgment for mortgage payments he made on the marital residence following the emancipation of the parties' children and to compel the sale of the residence. Pursuant to the parties' stipulation of settlement, before plaintiff may ultimately seek to compel the sale of the subject residence, it must be determined that the parties' children have been emancipated and the stipulation of settlement provides that a child is emancipated by, inter alia, “ [p]ermanent residence away from the residence of [defendant] [m]other.” Here, the parties' submissions on the issue of their younger daughter's emancipation disclosed the existence of genuine questions of fact warranting a hearing on the issue ( see Readick v. Readick, 80 A.D.3d 512, 513, 916 N.Y.S.2d 43 [1st Dept.2011];Matter of Forte v. Forte, 304 A.D.2d 577, 758 N.Y.S.2d 130 [2d Dept.2003] ). Although a residence at college does not constitute an emancipation event, there is evidence that the child changed her permanent residence prior to commencing college ( compare Trepel v. Trepel, 40 Misc.3d 1044, 969 N.Y.S.2d 770 [Sup.Ct., N.Y. County 2013] ).
Plaintiff is entitled to a money judgment in the amount of $1,943 based on the uncontested evidence that defendant owed him $3,786.13 for their child's high school tuition, that he received only $1,843.13, and that he notified defendant of her default and gave her time to cure as required by the parties' stipulation. TOM, J.P., ACOSTA, ANDRIAS, DeGRASSE, RICHTER, JJ., concur.