| Matter of Gansky v Gansky |
| 2013 NY Slip Op 01270 [103 AD3d 894] |
| February 27, 2013 |
| Appellate Division, Second Department |
| In the Matter of Andrea Gansky,Respondent, v James Gansky, Appellant. |
—[*1] Andrea Gansky, Stonybrook, N.Y., respondent pro se.
In a child support proceeding pursuant to Family Court Act article 4, the fatherappeals from (1) an order of the Family Court, Suffolk County (Genchi, J.), datedOctober 7, 2011, which denied his objections to an order of the same court (Buse, S.M.),dated July 28, 2011, which, after a hearing, dismissed his petition for a downwardmodification of his child support obligation, and (2) an order of the same court (Cheng,J.), dated March 27, 2012, which, after a hearing, denied that branch of his subsequentpetition which was to terminate his child support obligation on the ground ofconstructive emancipation.
Ordered that the orders dated October 7, 2011, and March 27, 2012, are affirmed,without costs or disbursements.
To establish entitlement to a downward modification of a child support order, a partyhas the burden of showing that there has been a substantial change in circumstances (see Matter of Kasun v Peluso,82 AD3d 769, 771 [2011]; Matter of Brennan v Burger, 63 AD3d 922, 923 [2009]).The credibility determinations of a Family Court support magistrate, who is in the bestposition to hear and evaluate the credibility of the witnesses, are entitled to deference (see Matter of Kennedy vVentimiglia, 73 AD3d 1066 [2010]; Matter of Cordero v Olivera, 40 AD3d 852 [2007]; see also Matter of Mongelluzzo vSondgeroth, 95 AD3d 1332, 1333 [2012]).
Here, the Support Magistrate did not improvidently exercise her discretion indeclining to rely on the father's account of his finances in determining that he failed toestablish a substantial change of circumstances warranting a downward modification. Asthe Support Magistrate's findings were based on credibility determinations and supportedby the record, they should not be disturbed (see Matter of Kennedy vVentimiglia, 73 AD3d at 1066). Accordingly, the Family Court properly denied thefather's objections to the Support Magistrate's order dismissing his petition for adownward modification of his child support obligation.
Furthermore, the Family Court properly denied that branch of the father's subsequentpetition which was to terminate his child support obligation on the ground ofconstructive emancipation. "It is fundamental public policy in New York that parents areresponsible for their [*2]children's support until age 21"(Matter of Gold v Fisher,59 AD3d 443, 444 [2009]; see Family Ct Act § 413; Matter ofRoe v Doe, 29 NY2d 188, 192-193 [1971]). Nevertheless, under the doctrine ofconstructive emancipation, where "a minor of employable age and in full possession of[his or] her faculties, voluntarily and without cause, abandons the parent's home, againstthe will of the parent and for the purpose of avoiding parental control [he or] she forfeits[his or] her right to demand support" (Matter of Roe v Doe, 29 NY2d at 192; see Matter of Glen L.S. v DeborahA.S., 89 AD3d 856, 857 [2011]; Matter of DeLuca v Strear-DeLuca, 84 AD3d 801 [2011]).In contrast, where the parent causes a breakdown in communication with his or her child,or has made no serious effort to contact the child and exercise his or her visitation rights,the child will not be deemed to have abandoned the parent (see Matter of Glen L.S. vDeborah A.S., 89 AD3d at 857; Matter of Gold v Fisher, 59 AD3d at 444;Matter of Alice C. v Bernard G.C., 193 AD2d 97, 109 [1993]).
The burden of proof as to emancipation is on the party asserting it (see Matter ofGlen L.S. v Deborah A.S., 89 AD3d at 857; Matter of Gold v Fisher, 59AD3d at 444). In this case, the evidence in the record sufficiently supports the FamilyCourt's determination that the father failed to meet his burden (see Matter of Gold vFisher, 59 AD3d at 444; Matter of Alice C. v Bernard G.C., 193 AD2d at110). Although there was evidence that the children failed to return the father's telephonecalls for several weeks before he filed his termination petition, such an occurrence showsno more than the children's reluctance to contact him. Reluctance to see a parent is notabandonment (see Matter of Glen L.S. v Deborah A.S., 89 AD3d at 858;Radin v Radin, 209 AD2d 396 [1994]). Moreover, there was ample support forthe court's determination that the father made no serious effort to maintain hisrelationship with the children during the relevant time period (see Matter of Glen L.S.v Deborah A.S., 89 AD3d at 858; Radin v Radin, 209 AD2d 396 [1994]).Rivera, J.P., Hall, Roman and Miller, JJ., concur.