Summary
refusing all contact and visitation may constitute abandonment
Summary of this case from Cornell v. CornellOpinion
2012-12-26
Scott SCHULMAN, appellant, v. Robin Marlene SCHULMAN, respondent.
Michael N. Klar, Carle Place, N.Y., for appellant. Adam H. Moser, Rockville Centre, N.Y., for respondent.
Michael N. Klar, Carle Place, N.Y., for appellant.Adam H. Moser, Rockville Centre, N.Y., for respondent.
, J.P., MARK C. DILLON, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In a matrimonial action in which the parties were divorced by judgment entered May 4, 2010, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (O'Connell, J.H.O.), entered September 29, 2011, as denied that branch of his motion which was to terminate his child support obligation with respect to the parties' oldest child.
ORDERED that the order is affirmed insofar as appealed from, with costs.
“It is fundamental public policy in New York that parents are responsible for their children's support until age 21” (Matter of Gold v. Fisher, 59 A.D.3d 443, 444, 873 N.Y.S.2d 139;seeFamily Ct. Act § 413; Matter of Roe v. Doe, 29 N.Y.2d 188, 192–193, 324 N.Y.S.2d 71, 272 N.E.2d 567;Matter of Glen L.S. v. Deborah A.S., 89 A.D.3d 856, 932 N.Y.S.2d 177). “Nevertheless, under 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” (Matter of Turnow v. Stabile, 84 A.D.3d 1385, 1386, 924 N.Y.S.2d 292, quoting Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97, 109, 602 N.Y.S.2d 623;see Matter of Burr v. Fellner, 73 A.D.3d 1041, 1041, 900 N.Y.S.2d 656). However, “ ‘where it is the parent who causes a breakdown in communication with his child, or has made no serious effort to contact the child and exercise his visitation rights, the child will not be deemed to have abandoned the parent’ ” (Matter of Gold v. Fisher, 59 A.D.3d at 444, 873 N.Y.S.2d 139, quoting Matter of Alice C. v. Bernard G.C., 193 A.D.2d at 109, 602 N.Y.S.2d 623). Moreover, “ ‘[a] child's reluctance to see a parent is not abandonment, relieving the parent of any support obligation’ ” (Matter of Turnow v. Stabile, 84 A.D.3d at 1386, 924 N.Y.S.2d 292, quoting Radin v. Radin, 209 A.D.2d 396, 396, 618 N.Y.S.2d 105;see Kordes v. Kordes, 70 A.D.3d 782, 783, 893 N.Y.S.2d 633). “The burden of proof as to emancipation is on the party asserting it” ( Schneider v. Schneider, 116 A.D.2d 714, 715, 498 N.Y.S.2d 23;see Matter of Gold v. Fisher, 59 A.D.3d at 444, 873 N.Y.S.2d 139).
Contrary to the plaintiff's contention, he failed to meet his burden of establishing that his oldest child was constructively emancipated. The proof submitted by the plaintiff in support of his motion failed to demonstrate that he made sufficient attempts to maintain a relationship with the child, or that the child abandoned the relationship with him ( see Matter of Burr v. Fellner, 73 A.D.3d at 1042, 900 N.Y.S.2d 656;Matter of Saunders v. Aiello, 59 A.D.3d 1090, 1091, 875 N.Y.S.2d 656;Radin v. Radin, 209 A.D.2d at 396, 618 N.Y.S.2d 105;Matter of Alice C. v. Bernard G.C., 193 A.D.2d at 110, 602 N.Y.S.2d 623).
The plaintiff's remaining contention is without merit.
Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was to terminate his child support obligation with respect to the parties' oldest child.