Opinion
Index No. 350047/2014
10-23-2023
P.Y., Plaintiff, v. C.Y., Defendant.
Counsel for Plaintiff Cohen Clair Lans Greifer & Simpson LLP By: Jad Greifer, Esq. and Benjamin Lilien, Esq. Counsel for Defendant Mantel McDonough Riso, LLP By: Kevin McDonough, Esq. Geralyn Mary Cook, Esq. By: Geralyn Cook, Esq. Counsel for the Child LoPreto + Levy, LLP By: Virginia Lopretto, Esq.
Counsel for Plaintiff
Cohen Clair Lans Greifer & Simpson LLP
By: Jad Greifer, Esq. and Benjamin Lilien, Esq.
Counsel for Defendant
Mantel McDonough Riso, LLP
By: Kevin McDonough, Esq.
Geralyn Mary Cook, Esq.
By: Geralyn Cook, Esq.
Counsel for the Child
LoPreto + Levy, LLP
By: Virginia Lopretto, Esq.
Ariel D. Chesler, J.
The following e-filed documents, listed by NYSCEF document number (Motion 014) 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 191, 193, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223 were read on this motion to/for TERMINATION OF CHILD SUPPORT.
Plaintiff Father moves for a termination of his payment of direct child support to the Defendant mother because the children no longer reside with the Defendant Mother. Defendant argues that since there has been no final change in custody for either of the parties' two children, a permanent residence cannot be established away from her residence. Because it is undisputed that both children have in fact resided away from the mother since March 9, 2022, the motion is granted in its entirety.
The parties have two children, currently aged 19 and 15. Pursuant to the parties' custodial agreements, Defendant was the primary residential custodian for both children and Plaintiff paid direct child support to her.
On December 23, 2015, the parties entered into a Financial Settlement Agreement ('the Agreement") which obligates Plaintiff to pay $11,979 in direct child support each month and to pay for 100% of add-on expenses, such as camps, activities, and college tuition. The Agreement also provides for the termination of direct child support upon the children being emancipated. Specifically, as relevant here, the Agreement provides that emancipation occurs when a child establishes a permanent residence away from the wife. However, a residence at college or study abroad was not to be deemed a permanent residence away from the wife.
It is undisputed that since March 2022 both children have been residing away from Defendant, and specifically resided with Plaintiff. The older child, no longer a minor, splits her time between college and Plaintiff's residence but at no time has she returned to Defendant's residence since March 2022.
Pursuant to the March 9, 2022 order of this Court, the younger child has exclusively resided with Plaintiff, who was granted temporary sole physical custody of that child. Since that order was issued the parties have been directed to, and have, engaged in various therapeutic interventions and processes. During the modification of custody proceedings, the Court has issued various interim and temporary orders pending any hearing on a change of custody.
It is also undisputed that since March 2022, Plaintiff has continued to pay basic child support to Defendant each month even though he was in fact covering all the daily needs and costs of both children who have been living with him. Plaintiff also never requested payment of child support from Defendant during this time. Plaintiff states that he will continue to pay 100% of the children's add-on expenses, including private school, college, tutoring, summer camp, enrichment activities, health related care and the like, and will also pay for all of the needs and support of the children.
The Court has already made a determination on the record and in an Interim Order dated October 12, 2023, regarding the older child. As to that child, there is no legal possibility of a modification of custody as she is over the age of 18. However, it is uncontroverted that she has permanently resided away from Defendant since March 2022. Controlling case law warrants termination of support as to her (see Rocchio v. Rocchio, 213 A.D.2d 535 [2d Dept 1995]["the proof submitted to the Supreme Court supports its determination that the child is now living with the plaintiff when she is not away at college," which constituted a change in permanent residence for the child]; see also Lacy v Lacy, 114 A.D.3d 500 [1st Dept 2014]).
Regarding the minor child, while this Court agrees with Defendant that a hearing is necessary in order to grant a permanent change in custody, an order granting a permanent change in custody is not required in order to change or terminate child support (see Bodzak v. Bodzak (48 A.D.3d 724 [2d Dept 2008]). In Bodzak, the Court found that when the parties' children moved from the mother's home to the father's home, against the mothers wishes, they became constructively emancipated which qualified as a permanent change of residence away from the mother, despite there being no request to modify the separation agreement.
Critically, the Court is Bodzak found that the mother's testimony that the children left her home against her wishes, and that her home was always open to her son and daughter, "does not negate a finding that the children, who never returned to the mother's home, became emancipated from the mother under the defined terms of the separation agreement" (Id at 726).
As in this matter, a final decision changing custody has not taken place, and the children's leaving Defendant's home was against her wishes, but Plaintiff is not prevented from requesting the termination of his child support obligations to the Defendant. It is undisputed that both children have been living exclusively with the Plaintiff since March 9, 2022, no less than 19 months. Defendant is not incurring any expenses for the children, and in fact, Plaintiff is currently paying all the children's expenses.
Defendant makes no argument of the need for support, but rather contends that the termination of support will allegedly disrupt the reunification process between the children and herself. There is no merit to this claim, and the reunification process is unrelated to the issues raised in this motion. Nor is it availing that Defendant thinks terminating support sends a message that she is out of the children's lives. The purpose of child support is, in fact, to pay for the daily financial needs of the children. It is not a financial entitlement of the recipient parent separate and apart from the children. Without Defendant incurring any of the children's expenses it is unnecessary that she continue to receive this payment. It would not only be contrary to the terms of the parties' Agreement to require continued payment of direct support, but also inequitable and unjust. Therefore, Plaintiff's support obligation for both children shall terminate immediately.
IT IS HEREBY;
ORDERED, the motion is granted to the extent that Plaintiff's obligation to pay direct child support to Defendant for both children is hereby terminated.
This constitutes the Decision and Order of the Court.