| Matter of Burr v Fellner |
| 2010 NY Slip Op 04377 [73 AD3d 1041] |
| May 18, 2010 |
| Appellate Division, Second Department |
| In the Matter of Paul Burr, Appellant, v Jacqueline M.Fellner, Respondent. |
—[*1]
In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Putnam County (Rooney, J.), dated June 1, 2009, which denied hisobjections to an order of the same court (Kaufman, S.M.), dated March 27, 2009, which, after ahearing, granted his petition for a downward modification of his child support obligation only tothe extent that it modified his child support obligation for the parties' son.
Ordered that the order dated June 1, 2009, is affirmed, without costs or disbursements.
It is fundamental public policy in New York that parents are responsible for their children'ssupport until age 21 (see Family Ct Act § 413; Matter of Roe v Doe, 29NY2d 188, 192-193 [1971]; Matter ofGold v Fisher, 59 AD3d 443, 444 [2009]). Nevertheless, under the doctrine ofconstructive emancipation, "a child of employable age who actively abandons the noncustodialparent by refusing all contact and visitation" may forfeit any entitlement to support (Matterof Alice C. v Bernard G.C., 193 AD2d 97, 109 [1993]; see Matter of Gold v Fisher,59 AD3d at 444; Family Ct Act § 413). However, "[a] child's reluctance to see a parent isnot abandonment, relieving the parent of any support obligation" (Radin v Radin, 209AD2d 396 [1994]). Children are also emancipated if they become economically independent oftheir parents through employment, entry into military service, or marriage (see Alice C. vBernard G.C., 193 AD2d at 105). " 'The burden of proof as to emancipation is on the partyasserting it' " (Matter of Gold v Fisher, 59 AD3d at 444, quoting Schneider vSchneider, 116 AD2d 714, 715 [1986]).
Contrary to the father's contention, he failed to meet his burden of establishing that hisdaughter is emancipated. The father failed to demonstrate that she abandoned the relationshipwith him (compare Radin v Radin, 209 AD2d 396 [1994], and Matter of Alice C. vBernard G.C., 193 AD2d at 110, with Matter of Commissioner of Social Servs. vJones-Gamble, 227 AD2d 618, 619 [1996], and Matter of Chamberlin v Chamberlin,240 AD2d 908, 909-910 [1997]). The father also failed to establish that his daughter withdrewfrom parental control and supervision (see Matter of Alice C. v Bernard G.C., 193 AD2dat 109). Furthermore, there was insufficient evidence to establish that she was economicallyindependent of her parents (see Matter of Alice C. v Bernard G.C., 193 AD2d at 106).Accordingly, the Family Court properly denied the father's objections to the Support Magistrate'sorder denying that branch of his petition for a downward modification of his child supportobligation which pertained to his child support obligation for the parties' daughter.[*2]
Finally, the father failed to rebut the presumption that theapplication of the guidelines contained in the Child Support Standards Act (see FamilyCt Act § 413) yielded the correct amount of child support (see Matter of NorthGuilford County v Campbell, 305 AD2d 686, 687 [2003]; Matter of Picciullo vCollein, 226 AD2d 643, 643-644 [1996]; Matter of Keay v Menda, 210 AD2d 483[1994]; see e.g. Michael N. G. v Elsa R., 199 AD2d 81 [1993]; Matter of Maddox vDoty, 186 AD2d 135 [1992]). Dillon, J.P., Santucci, Hall and Lott, JJ., concur.