| Labanowski v Labanowski |
| 2008 NY Slip Op 02527 [49 AD3d 1051] |
| March 20, 2008 |
| Appellate Division, Third Department |
| Amy B. Labanowski, Now Known as Amy Parker,Respondent-Appellant, v Jeffry E. Labanowski,Appellant-Respondent. |
—[*1] Assaf & Mackenzie, P.L.L.C., Troy (Melody A. Mackenzie of counsel), forrespondent-appellant. Abbie Goldbas, Law Guardian, Utica.
Spain, J. Cross appeals from an order of the Supreme Court (Sise, J.), entered March 6, 2007in Warren County, which, among other things, partially denied defendant's motion to terminatehis child support obligation.
Plaintiff (hereinafter the mother) and defendant (hereinafter the father) are the parents ofthree children. Around the time of the parties' separation, their children became estranged fromthe father. In April 2003, after a full hearing, Supreme Court (Aulisi, J.) found the mother to bein contempt for her "willful failure, either by omission or commission" to comply with thevisitation orders of the court. On appeal, this Court—in February 2004—affirmedthe contempt finding, but modified the punishment (4 AD3d 690, 694 [2004]).[FN1][*2]
In March 2004, a divorce settlement resolving all pendingmatters was reached in Supreme Court and placed on the record in open court with the ultimategoal of reuniting the two youngest children with the father. In October 2004, a judgment wasentered reflecting all aspects of the parties' stipulation, including the agreed-upon provisions thatboth parties withdraw all pending motions and petitions, that their previously agreed-upon jointcustody arrangement would continue, that the father pay child support for the two youngestchildren, Vatoria (born in 1988) and Joshua (born in 1990) (hereinafter the children) until theyare 21 or are sooner emancipated, and that the mother shall be responsible for 100% of thechildren's college expenses. On the advice of therapists who examined the children, the partiesagreed in their stipulation and judgment that the father's parenting time with the children "shallbe placed on hold while the therapists move forward with the children with therapy with theultimate goal of providing a true and fair opportunity for the children and the [f]ather tore-establish their relationship and for the children to be healed." Notably, the stipulation andjudgment fail to set any specific timetable or conditions for lifting the "hold."
The stipulated judgment also, among other things, suspended Supreme Court's previousjudgment of willful contempt against the mother, giving her an opportunity to purge herself. Bothparties agreed to take the children as dependents for tax exemption purposes in alternate yearsand were relieved of any obligation to reimburse the other for any unpaid child support arrears orunreimbursed medical expenses as of March 9, 2004; from that day forward, the parents agreedto share equally all of the children's unreimbursed medical expenses.
In May 2006, more than two years after the stipulated suspension of his access to thechildren, the father moved for termination of his child support obligations as to each ofthem—ages 17 and 15 at that time—based on their abandonment. In opposition, themother asked Supreme Court to dismiss the father's application and cross-moved for an ordermodifying the judgment of divorce by granting her (1) the exclusive right to claim the children astax exemptions and (2) an order directing that the father retroactively modify his past three years'tax returns to allow the mother to claim the children as dependents for those years in return forher paying all their unreimbursed medical expenses retroactive to the date of the settlement.
Without the benefit of a hearing, Supreme Court (Sise, J.) granted the father's motion only asto Vatoria, then 18 years old, terminating her child support as of her 18th birthday, but denied thefather's motion as to Joshua because he was not yet of employable age. The court also denied themother's cross motion based on her failure to establish a substantial change in circumstances. Thefather and the mother now each appeal.
Generally, in this state, a parent is obligated to support a child until the child turns 21 yearsof age (see Domestic Relations Law § 240 [1-b] [b] [2]; Family Ct Act § 413[1] [a]). However, "a child of employable age, who actively abandons the noncustodial parent byrefusing all contact and visitation, without cause, may be deemed to have forfeited his or herright to support" (Matter of Chamberlin v Chamberlin, 240 AD2d 908, 909 [1997];see Matter of Rubino v Morgan, 224 AD2d 903, 903-904 [1996]; Cohen vSchnepf, 94 AD2d 783, 783-784 [1983]), a [*3]conceptsometimes referred to as "the doctrine of self-emancipation" (Sobie, Supp PracticeCommentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 413, 2008Cum Pocket Part, at 15-19). "[A] noncustodial parent seeking to suspend child support paymentshas the burden to establish the lack of justification for the child's refusal to maintain contact"(Matter of Wiegert v Wiegert, 267 AD2d 620, 621 [1999]; see Matter of Ogborn vHilts, 269 AD2d 679, 680 [2000]), and a child's justified refusal to continue a relationshipdue to a parent's malfeasance, misconduct, neglect or abuse, will not be consideredself-emancipation (see Matter of Wiegert v Wiegert, 267 AD2d at 621). Additionally,where "the custodial parent has unjustifiably frustrated the noncustodial parent's right ofreasonable access, child support payments may be suspended" despite the age of the child(ren)(Matter of Smith v Bombard, 294 AD2d 673, 675 [2002], lv denied 98 NY2d 609[2002]; see Foster v Daigle, 25AD3d 1002, 1004-1005 [2006], lv dismissed 6 NY3d 890 [2006]; Usack v Usack, 17 AD3d 736,737-740 [2005]), although not where young children are likely to become impoverished (seeUsack v Usack, 17 AD3d at 739-740; Matter of Kershaw v Kershaw, 268 AD2d 829,830 [2000]). Notably, in circumstances as here, where a parent consents—with a goaltoward reunification—to an order limiting contact or visitation, the parent may betemporarily precluded from claiming abandonment, although such a claim could be raised afterthe period specified in the agreement/order or, if one is not specified, after a reasonable period oftime (see e.g. Matter of Marotta v Fariello, 207 AD2d 450, 451-452 [1994]).
Here, the parties settled all their differences in Supreme Court in 2004 when the fatheragreed, among other things, to pay child support. In our view, any alleged change incircumstances would have to be established by the father based on events subsequent to thatagreement, a period in which the father had initially consented that his access to the childrenwould be suspended while therapists worked with them, although, unfortunately, no durationallimit was established and no court date set to assess progress or reevaluate. On the record beforeSupreme Court, little was known about what had occurred since the stipulated settlement and itwas not clear who bore responsibility for the lack of progress in establishing a positiverelationship between the children and their father—one or both of the parents, the childrenor others. Proof may or may not show that the children refused to cooperate with therapists orunreasonably and unjustifiably continued to refuse to have contact with their father thereafter.Such a determination should only be made after a full hearing[FN2](see Bartlett v Bartlett, 197 AD2d 821, 822 [1993]). Accordingly, the determination onthe father's application to terminate child support should be reversed and the matter remitted toSupreme Court for a full evidentiary hearing at which the children, represented by a new lawguardian, should be given an opportunity to be heard.
Finally, Supreme Court properly denied the mother's cross motion to modify the [*4]judgment of divorce to allow her to take the tax deduction eachyear. Indeed, such an agreement cannot be modified absent a showing that there has been anunanticipated and unreasonable change in circumstances (see Matter of Brescia v Fitts,56 NY2d 132, 138 [1982]; see alsoMatter of Cox v Cox, 20 AD3d 527, 528 [2005]). The fact that being able to claim bothchildren as deductions would allow for more financial aid is not a change in circumstancesbecause this fact was in existence and readily ascertainable when the agreement was made, inwhich she agreed as part of a multifaceted arrangement to bear all college expenses. WhileVatoria's decision to attend the college a year earlier may be considered a minor change incircumstances, considering that the mother agreed to bear all college costs and that collegeattendance by both children was anticipated, no substantial change justified modification of theterms agreed to by the parties.
Cardona, P.J., Peters, Lahtinen and Kane, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as granted respondent's motion to terminatechild support as to Vatoria; said motion denied to that extent and matter remitted to the SupremeCourt for further proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.
Footnote 1: This Court's decision alsoaffirmed Supreme Court's finding that the eldest daughter, Cassandra, who was 20 years of age atthe time and who is not a subject of this appeal, had constructively emancipated herself and wasno longer entitled to child support (4 AD3d at 695-696).
Footnote 2: The issues in this case implicatea child's right to adequate support. It is, thus, troubling that the Law Guardian assigned inSupreme Court to represent the children took no position on the father's motion to terminate theirchild support. To be distinguished, a separate Law Guardian assigned by this Court to representthe children on this appeal has opposed the termination or suspension of child support as to eachof the children.