| Schulman v Schulman |
| 2012 NY Slip Op 09041 [101 AD3d 1098] |
| December 26, 2012 |
| Appellate Division, Second Department |
| Scott Schulman, Appellant, v Robin Marlene Schulman,Respondent. |
—[*1] Adam H. Moser, Rockville Centre, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment entered May 4, 2010,the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (O'Connell,J.H.O.), entered September 29, 2011, as denied that branch of his motion which was to terminatehis child support obligation with respect to the parties' oldest child.
Ordered that the order is affirmed insofar as appealed from, with costs.
"It is fundamental public policy in New York that parents are responsible for their children'ssupport until age 21" (Matter of Gold vFisher, 59 AD3d 443, 444 [2009]; see Family Ct Act § 413; Matter ofRoe v Doe, 29 NY2d 188, 192-193 [1971]; Matter of Glen L.S. v Deborah A.S., 89 AD3d 856 [2011])."Nevertheless, under the doctrine of constructive emancipation, 'a child of employable age whoactively abandons the noncustodial parent by refusing all contact and visitation' may forfeit anyentitlement to support" (Matter ofTurnow v Stabile, 84 AD3d 1385, 1386 [2011], quoting Matter of Alice C. vBernard G.C., 193 AD2d 97, 109 [1993]; see Matter of Burr v Fellner, 73 AD3d 1041, 1041 [2010]).However, " 'where it is the parent who causes a breakdown in communication with his child, orhas made no serious effort to contact the child and exercise his visitation rights, the child will notbe deemed to have abandoned the parent' " (Matter of Gold v Fisher, 59 AD3d at 444,quoting Matter of Alice C. v Bernard G.C., 193 AD2d at 109). Moreover, " '[a] child'sreluctance to see a parent is not abandonment, relieving the parent of any support obligation' "(Matter of Turnow v Stabile, 84 AD3d at 1386, quoting Radin v Radin, 209AD2d 396, 396 [1994]; see Kordes vKordes, 70 AD3d 782, 783 [2010]). "The burden of proof as to emancipation is on theparty asserting it" (Schneider v Schneider, 116 AD2d 714, 715 [1986]; see Matter ofGold v Fisher, 59 AD3d at 444).
Contrary to the plaintiff's contention, he failed to meet his burden of establishing that hisoldest child was constructively emancipated. The proof submitted by the plaintiff in support ofhis motion failed to demonstrate that he made sufficient attempts to maintain a relationship withthe child, or that the child abandoned the relationship with him (see Matter of Burr vFellner, 73 AD3d at 1042; Matter ofSaunders v Aiello, 59 AD3d 1090, 1091 [2009]; Radin v Radin, 209 AD2d at396; Matter of Alice C. v Bernard G.C., 193 AD2d at 110).
The plaintiff's remaining contention is without merit.[*2]
Accordingly, the Supreme Court properly denied thatbranch of the plaintiff's motion which was to terminate his child support obligation with respectto the parties' oldest child. Rivera, J.P., Dillon, Roman and Cohen, JJ., concur.