Opinion
2015-06831. Index No. 40484/09.
08-16-2017
Neil WERNER, appellant, v. Michele WERNER, respondent.
Darren M. Shapiro, Jericho, NY, for appellant. Michael Catalanotto, P.C., Nesconset, NY, for respondent.
Darren M. Shapiro, Jericho, NY, for appellant.
Michael Catalanotto, P.C., Nesconset, NY, for respondent.
CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.
Appeal from an order of the Supreme Court, Suffolk County (Marlene L. Budd, J.), dated April 13, 2015. The order, insofar as appealed from, denied that branch of the plaintiff's cross motion which was to terminate his support obligation with respect to the parties' daughter on the ground of constructive emancipation.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly determined that his child support obligation with respect to the parties' daughter was not terminated on the ground of constructive emancipation. " ‘It is fundamental public policy in New York that parents are responsible for their children's support until age 21’ " (Matter of Jurgielewicz v. Johnston, 114 A.D.3d 945, 945, 981 N.Y.S.2d 733, quoting Matter of Gold v. Fisher, 59 A.D.3d 443, 444, 873 N.Y.S.2d 139 ; see Family Ct. Act § 413 ; Matter of Barlow v. Barlow, 112 A.D.3d 817, 976 N.Y.S.2d 573 ; Matter of Gansky v. Gansky, 103 A.D.3d 894, 962 N.Y.S.2d 255 ; Schulman v. Schulman, 101 A.D.3d 1098, 956 N.Y.S.2d 577 ; Matter of Glen L.S. v. Deborah A.S., 89 A.D.3d 856, 857, 932 N.Y.S.2d 177 ). " ‘However, 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. 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, quoting Matter of Barlow v. Barlow, 112 A.D.3d at 818, 976 N.Y.S.2d 573 ; see Matter of Grucci v. Villanti, 108 A.D.3d 626, 969 N.Y.S.2d 493 ; Schulman v. Schulman, 101 A.D.3d at 1099, 956 N.Y.S.2d 577 ; Matter of Turnow v. Stabile, 84 A.D.3d 1385, 924 N.Y.S.2d 292 ). Here, the plaintiff failed to demonstrate, prima facie, that his daughter had refused all contact and visitation. Accordingly, the Supreme Court properly denied that branch of the plaintiff's cross motion which was to terminate his support obligation with respect to his daughter on the ground of constructive emancipation.
The plaintiff's contention that the Supreme Court should not have denied his cross motion without a hearing is without merit. The plaintiff did not request such a hearing or object to the submission of the issue based on papers, and thus, he waived that right (see 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 ; Pascazi v. Pascazi, 52 A.D.3d 664, 665, 861 N.Y.S.2d 95 ; Messinger v. Messinger, 24 A.D.3d 631, 632, 809 N.Y.S.2d 83 ).
The plaintiff did not did not contest the amount of college expenses sought by the defendant, and therefore, he may not raise this issue for the first time on appeal (see Wexelbaum v. Jean, 80 A.D.3d 756, 757, 915 N.Y.S.2d 161 ; Willsey v. Gjuraj, 65 A.D.3d 1228, 1231, 885 N.Y.S.2d 528 ; Green Apple Mgt. Corp. v. Aronis, 55 A.D.3d 669, 865 N.Y.S.2d 355 ).