Opinion
2017–11890 Index No. 14267/11
04-17-2019
AnnMarie MITAROTONDA, Respondent, v. Frank MITAROTONDA, Appellant.
Johnson & Cohen, LLP, White Plains, N.Y. (Maureen A. Dunn of counsel), for appellant. McCarthy Fingar, LLP, White Plains, N.Y. (Kathleen Donelli and Kristen Pennessi of counsel), for respondent.
Johnson & Cohen, LLP, White Plains, N.Y. (Maureen A. Dunn of counsel), for appellant.
McCarthy Fingar, LLP, White Plains, N.Y. (Kathleen Donelli and Kristen Pennessi of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.
DECISION & ORDERIn a matrimonial action, the defendant appeals from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated September 22, 2017. The order denied, without a hearing, the defendant's motion to terminate his child support obligation with respect to the parties' two sons.
ORDERED that the order is affirmed, with costs.
The parties, who divorced in 2013, have two sons and one daughter. Pursuant to the judgment of divorce, which incorporated, but did not merge, the parties' stipulation of settlement and so-ordered parenting agreement, the defendant was obligated to pay child support for all three children. Subsequently, in December 2016, the defendant moved to terminate his child support obligation with respect to both sons on the ground of constructive emancipation. He also alleged parental alienation on the part of the plaintiff. The plaintiff opposed the motion and asked that an attorney be appointed to represent the sons. The Supreme Court appointed an attorney to represent the sons, who opposed the defendant's motion. In an order dated September 22, 2017, the court denied the defendant's motion, determining that the defendant failed to meet his burden of showing constructive emancipation or parental alienation. The defendant appeals.
It is fundamental public policy in New York that parents are responsible for their children's support until age 21 (see Family Ct Act § 413 ; Matter of Jurgielewicz v. Johnston, 114 A.D.3d 945, 945, 981 N.Y.S.2d 733 ; Matter of Barlow v. Barlow, 112 A.D.3d 817, 818, 976 N.Y.S.2d 573 ). Nevertheless, under the doctrine of constructive emancipation, a child of employable age who, without cause, actively abandons the noncustodial parent by refusing all contact and parental access may forfeit any entitlement to support (see Diaz v. Gonzalez, 115 A.D.3d 904, 905, 984 N.Y.S.2d 65 ; Matter of Lowe v. Lowe, 67 A.D.3d 682, 683, 888 N.Y.S.2d 163 ). However, "[a] child's ... reluctance to see a parent is not abandonment" ( Matter of.Jurgielewicz v. Johnston, 114 A.D.3d at 945, 981 N.Y.S.2d 733 [internal quotation marks omitted]; see O'Rourke v. O'Rourke, 139 A.D.3d 1027, 1028, 31 N.Y.S.3d 600 ). " ‘The burden of proof as to emancipation is on the party asserting it’ " ( Matter of Jurgielewicz v. Johnston, 114 A.D.3d at 945, 981 N.Y.S.2d 733, quoting 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 at 818, 976 N.Y.S.2d 573 ).
"Child support payments may be suspended where the custodial parent unjustifiably frustrates the noncustodial parent's right of reasonable access" ( Matter of Jurgielewicz v. Johnston, 114 A.D.3d at 946, 981 N.Y.S.2d 733 [internal quotation marks omitted]; see Matter of Rivera v. Echavarria, 48 A.D.3d 578, 852 N.Y.S.2d 236 ).
Here, we agree with the Supreme Court's determination, without a hearing, that the defendant's child support obligation with respect to the parties' two sons was not terminated on the ground of constructive emancipation or interference with parental access. The defendant did not request a hearing or object to the submission of the issues based on papers, and thus, he waived that right (see Werner v. Werner, 153 A.D.3d 759, 760, 60 N.Y.S.3d 330 ; Mollah v. Mollah, 136 A.D.3d 992, 994, 26 N.Y.S.3d 298 ; Bandler v. Bandler, 58 A.D.3d 775, 776, 874 N.Y.S.2d 141 ). In any event, the defendant failed to meet his burden of demonstrating, prima facie, that the sons refused all contact with him (see Werner v. Werner, 153 A.D.3d at 759, 60 N.Y.S.3d 330 ; O'Rourke v. O'Rourke, 139 A.D.3d at 1028, 31 N.Y.S.3d 600 ; Marshall v. Marshall, 1 A.D.3d 323, 324, 767 N.Y.S.2d 54 ), or that the plaintiff deliberately frustrated or actively interfered with his relationship with the sons (see Matter of Addimando v. Huerta, 147 A.D.3d 750, 753, 46 N.Y.S.3d 168 ; Matter of Jurgielewicz v. Johnston, 114 A.D.3d at 946, 981 N.Y.S.2d 733 ).
RIVERA, J.P., ROMAN, HINDS–RADIX and LASALLE, JJ., concur.