| Matter of Abidi v Antohi |
| 2009 NY Slip Op 06013 [64 AD3d 772] |
| July 28, 2009 |
| Appellate Division, Second Department |
| In the Matter of Oana Abidi, Respondent, v OctavianAntohi, Appellant. |
—[*1] Sanders & Solomon, P.C., Huntington, N.Y. (Michael B. Solomon of counsel), forrespondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Nassau County (Greenberg, J.), dated October 20, 2008, whichdenied his objections to an order of the same court (Bannon, S.M.), dated May 5, 2008, which,after a hearing, denied his application for child support from the mother for the parties' oldestchild for the four months between the time that he filed for a change of custody and the date thatchild turned 21 years old, granted that branch of the mother's petition which was for an upwardmodification of the father's child support obligation for the parties' youngest child based on100% of his "determinable gross income" minus statutory deductions, pursuant to the parties'1999 stipulation of settlement, and awarded the mother an attorney's fee in the sum of $18,000.
Ordered that the order dated October 20, 2008, is affirmed, with costs.
In 1999, the parties entered into a stipulation of settlement on the record in open court inwhich they agreed, in substance, that the father's child support obligation would be recalculatedbased upon his full "determinable gross income" minus statutory deductions, with no incomecap, after he completed his medical residency. The mother commenced this proceeding after itbecame apparent that the father was not going to abide by these terms of the parties' stipulationafter he completed his medical residency.
"Stipulations of settlement are favored by the courts and a stipulation made on the record inopen court will not be set aside absent a showing that it was the result of fraud, overreaching,mistake, or duress" (Matter ofBlackstock v Price, 51 AD3d 914, 914 [2008]; see Hallock v State of NewYork, 64 NY2d 224, 230 [1984]).
The Family Court properly rejected the father's attempt, in effect, to have the stipulation setaside. The father accepted the benefits of the stipulation of settlement, by paying child supportwell below what he would have been required to pay under a strict application of the ChildSupport Standards Act while he was in medical school and completing his medical residency,and he substantially complied with its terms for approximately 10 years. Accordingly, the fatherratified the stipulation by his conduct (see Ricca v Ricca, 57 AD3d 868, 870 [2008]; Korngold v Korngold, 26 AD3d358, 359 [2006]).[*2]
Further, the father's contention that the Family Courterred in failing to impose a cap on the combined parental income upon which his child supportobligation may be based, is without merit. The stipulation of settlement contains no provision forsuch a cap (see Ramon v Ramon,49 AD3d 843, 844 [2008]).
Accordingly, the Family Court correctly determined that the father should pay child supportbased upon his full determinable gross income minus statutory deductions, pursuant to theparties' 1999 stipulation.
The Family Court also properly denied the father's application for child support from themother for the parties' oldest child for the four months between the time that he filed for achange of custody and the date that child turned 21 years old. It is fundamental public policy inNew York that parents of minor children are responsible for their children's support until age 21(see Family Ct Act § 413; Matter of Roe v Doe, 29 NY2d 188, 192-193[1971]). Nonetheless, under the doctrine of constructive emancipation, "a child of employableage who actively abandons the noncustodial parent by refusing all contact and visitation" mayforfeit any entitlement to support (Matter of Alice C. v Bernard G.C., 193 AD2d 97, 109[1993]).
On the instant record there is no basis to disturb the findings of the Family Court. TheFamily Court's credibility determinations are entitled to great deference, as the Family Court isin the best position to assess the credibility of the witnesses (see Matter of Fragola v Alfaro, 45 AD3d 684, 685 [2007]; Matter of Strella v Ferro, 42 AD3d544, 545 [2007]; Matter ofAccettulli v Accettulli, 38 AD3d 766, 767 [2007]; Matter of Musarra v Musarra, 28 AD3d 668, 669 [2006]; Matter of Bailey v Bailey, 15 AD3d577 [2005]). The hearing evidence established that, for no justifiable reason, the oldest childabandoned the mother and refused to have any contact with her, despite her attempts to contacthim. He also declined any support offered by her, including money, and he removed himselffrom her health insurance policy. "To require the [mother] to provide reimbursement for thesupport of a [son] who has renounced and abandoned h[er] would clearly result in an injusticeunder the facts of this case" (Matter of Commissioner of Social Servs. v Jones-Gamble,227 AD2d 618, 619 [1996]; seeMatter of Bailey v Bailey, 15 AD3d 577 [2005]).
The award of an attorney's fee in the sum of $18,000 to the mother was a provident exerciseof the Family Court's discretion (seeMatter of Ana Luisa B. v Paul H.A., 59 AD3d 289 [2009]; Matter of Salerno vSalerno, 300 AD2d 667 [2002]). Skelos, J.P., Angiolillo, Balkin and Belen, JJ., concur.