Opinion
2015-10-2
Eileen MELGAR, Plaintiff–Appellant, v. Luis MELGAR, Defendant–Respondent.
Hogan Willig, PLLC, Amherst (Michael J. Colletta of Counsel), for Plaintiff–Appellant. Mattingly Cavagnaro LLP, Buffalo (Melissa A. Cavagnaro of Counsel), for Defendant–Respondent.
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”( 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 is on the party asserting it ( see Matter of Barlow v. Barlow, 112 A.D.3d 817, 818, 976 N.Y.S.2d 573).
Although defendant submitted evidence in support of his motion that the child was working full time, he did not submit proof that the child was economically independent. There was no proof regarding where she lived or who paid her bills ( cf. Cedeno, 98 A.D.3d at 1257, 951 N.Y.S.2d 412; Smith, 85 A.D.3d at 1188, 927 N.Y.S.2d 120), and it was therefore error for the court to grant that part of the motion without a hearing. Indeed, “[t]he determination of economic independence necessarily involves a fact-specific inquiry” (Thomas B., 69 A.D.3d at 29, 886 N.Y.S.2d 22).
Defendant's allegations in support of his motion also raise an issue of fact concerning constructive emancipation. Although the court did not address that issue in its decision, defendant properly raises it on appeal as an alternative ground for affirmance ( see Parochial Bus. Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241). “[U]nder 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” (Barlow, 112 A.D.3d at 818, 976 N.Y.S.2d 573; see Burr, 73 A.D.3d at 1041, 900 N.Y.S.2d 656). However, “where it is the parent who causes a breakdown in communication with the 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” (Barlow, 112 A.D.3d at 818, 976 N.Y.S.2d 573; see Matter of Gansky v. Gansky, 103 A.D.3d 894, 895, 962 N.Y.S.2d 255; Thomas B., 69 A.D.3d at 28, 886 N.Y.S.2d 22). Here, defendant asserted in support of his motion, and plaintiff did not dispute, that there is no relationship between defendant and the child, but the cause of the breakdown in communication has not been established. We therefore conclude that a hearing should be held on that issue as well.
Finally, we reject plaintiff's contention that the court abused its discretion in denying that part of her cross motion seeking counsel fees. A court must review the financial circumstances of the parties in determining whether to award counsel fees ( see Wilson v. Wilson, 128 A.D.3d 1326, 1327, 7 N.Y.S.3d 751) but, here, plaintiff failed to include a statement of her net worth in support of her application therefor ( see22 NYCRR 202.16[k][2]; Gass v. Gass, 91 A.D.3d 557, 558, 936 N.Y.S.2d 887; Kremler v. Kremler, 199 A.D.2d 901, 902–903, 605 N.Y.S.2d 550). Plaintiff may renew her application for counsel fees and submit the required information after the hearing on the motion ( see Matter of Fischer–Holland v. Walker, 12 A.D.3d 671, 672, 784 N.Y.S.2d 890).
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in its entirety and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Erie County, for a hearing.