| Matter of Drumm v Drumm |
| 2011 NY Slip Op 07330 [88 AD3d 1110] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Bernadette M. Drumm, Appellant, v William R.Drumm, Respondent. |
—[*1] Wardlaw Associates, P.C., Saratoga Springs (Donna E. Wardlaw of counsel), for appellant.
Egan Jr., J. Appeals (1) from an order of the Family Court of Saratoga County (Abramson,J.), entered April 26, 2010, which, in a proceeding pursuant to Family Ct Act article 4, dismissedpetitioner's objections to the order of a Support Magistrate as untimely, and (2) from an order ofsaid court, entered May 21, 2010, which, upon reargument, adhered to its prior decision.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorcedparents of three children, Miranda, Nicholas and Matthew (born in 1990, 1994 and 1997,respectively). In May 2006, the parties entered into a separation agreement, pursuant to the termsof which they agreed to share physical custody of their children and to divide equally, amongother things, the cost of the children's health insurance and any uncovered medicalexpenses.[FN1]In apparent contemplation of that arrangement, the parties agreed to waive any child support "at[that] time." Although not entirely clear from the record, it appears that Miranda and Nicholasthereafter elected to reside primarily with the mother, prompting the parties to enter intostipulations of settlement that referred various issues to Family Court, including child support forMiranda and Nicholas and the parties' respective obligations for the children's health care costs.[*2]The separation agreement, as modified, was incorporated butnot merged into the parties' May 2009 amended judgment of divorce.[FN2]
In September 2009, the mother and the father entered into an order on consent wherein theyagreed to, among other things, grant each other a "right of first refusal" during any period of timewhen the parent having physical custody of Matthew would be absent for five hours or longer. Asthe father often was required to work on weekends, he offered—and the mother frequentlyaccepted—the additional parenting time with Matthew. Shortly after entering into thisstipulation, the mother commenced this modification proceeding contending that, having availedherself of the opportunity to spend more time with Matthew, she now had physical custody ofhim more than 50% of the time and, as such, was entitled to child support.
Following a hearing, the Support Magistrate found, among other things, that the mother'sdecision to exercise her right of first refusal did not alter the parties' shared custody arrangementas to Matthew and, therefore, the mother was not entitled to child support for him. The SupportMagistrate further determined that Miranda became emancipated in June 2008 when shegraduated from high school and obtained full-time employment and limited any award of supportfor Miranda accordingly.[FN3]Family Court, sua sponte, dismissed the mother's subsequent objections to the SupportMagistrate's order as untimely and, upon reargument, adhered to its prior decision. These appealsby the mother ensued.
We reverse. Preliminarily, the record before us does not support Family Court's finding thatthe mother's objections were filed outside the 35-day window set forth in Family Ct Act §439 (e). Accordingly, Family Court erred in refusing to entertain the mother's objections on themerits.
As to a remedy, although the record before us does not lend itself to a simple recalculation ofthe parties' child support obligations—particularly in view of the various inconsistenciesthat exist between the Support Magistrate's written decision, findings of fact and resulting order,and the corresponding lack of clarity regarding the underlying award of child support—therecord is sufficiently developed to permit us to review the merits of the mother's specificobjections. Therefore, in the interest of judicial economy, we will address the mother's argumentson appeal and remit this matter to Family Court for a recomputation of the parties' child supportobligations and, if necessary, the taking of additional proof on this issue.
With regard to the mother's request for child support for Matthew, the mere fact that themother elected to exercise her right of first refusal with respect to this particular child did notfundamentally alter the parties' shared custody arrangement. At best, the mother's election in thisregard resulted in her choosing to spend an additional three or four days each month with her son.In our view, regardless of the burden of proof employed, this minor and entirely voluntary[*3]"change in circumstances" is insufficient to warrant the mother'srequest for child support as to this child.
We do, however, find merit to the mother's objection regarding Miranda's allegedemancipation. A parent is statutorily obligated to support his or her child until the age of 21(see Family Ct Act § 413 [1]) unless the child is sooner emancipated, whichoccurs, insofar as is relevant here, when the child "attain[s] economic independence throughemployment" (Matter of Bogin v Goodrich, 265 AD2d 779, 781 [1999]; see Matter of Smith v Smith, 85 AD3d1188, 1188 [2011]).[FN4]The fact that a child may work full time is not determinative, as a child cannot be deemedeconomically independent if he or she still relies upon a parent for significant economic support(see Matter of Thomas B. v LydiaD., 69 AD3d 24, 30 [2009]). This remains true even where, as here, the child in questionno longer resides with one of the parties, "so long as the child is still dependent on one of [them]for a significant portion of his or her support" (Matter of Thomas B. v Lydia D., 69 AD3dat 30; see Matter of Bogin v Goodrich, 265 AD2d at 781; compare Matter of Lowe v Lowe, 67AD3d 682, 683 [2009]).
Here, although the father testified that Miranda went to work full time after graduating fromhigh school, the record falls short of establishing that she has achieved economic independence.Notably, there is no documentation of Miranda's salary or expenses or the degree to which shecontinues to receive financial support from her mother. Accordingly, the Support Magistrate'sdetermination in this regard cannot stand.[FN5]
We also are persuaded that the Support Magistrate erred in failing to achieve some level ofparity between the parties by consistently using their respective projected incomes for 2009 incomputing child support. Although the Support Magistrate's decision to utilize the mother'sprojected income for 2009 instead of her actual income for 2008 was well founded (due tononrecurring income that the mother received in the prior year), no similar explanation wasoffered for electing to use the father's actual 2008 income instead of his projected—andpresumably higher—income for 2009. Thus, while we have no quarrel with the SupportMagistrate's overall consideration of the various child support factors outlined in Family Ct Act§ 413 (1) (f), the record nonetheless fails to disclose a valid reason for failing to utilizesimilar income valuations for both parties when computing their respective support obligationsfor [*4]Miranda and Nicholas. The mother's remainingarguments, to the extent not specifically addressed, have been examined and found to be lackingin merit.
Mercure, J.P., Peters, Stein and Garry, JJ., concur. Ordered that the orders are reversed, onthe law, without costs, and matter remitted to the Family Court of Saratoga County for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: The parties' separationagreement also contemplated providing health insurance for the children past the age of majorityto the extent that the underlying policy would so permit.
Footnote 2: Miranda apparently moved inwith her maternal grandmother in June 2009.
Footnote 3: The Support Magistrate alsoconcluded that in light of Miranda's emancipation, the parties no longer had any obligation toprovide health insurance for her or contribute to her uncovered medical expenses.
Footnote 4: To the extent that the parties'separation agreement defines emancipation as, among other things, a "child establishing apermanent residence away from his or her custodial parent," we need note only that "the partiescannot contract away the duty of child support" (Matter of Thomas B. v Lydia D., 69 AD3d 24,30 [2009]).
Footnote 5: Although Miranda reached theage of majority during the pendency of this appeal, Family Court must, upon remittal, computethe parties' child support obligation for Miranda prior to her 21st birthday, together with theirrespective obligations for her health insurance premium—at least to the extent thatinsurance coverage for her still may be available (see n 1, supra)—as wellas her uncovered medical expenses, if any, in accordance with the terms of the parties' separationagreement.