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Thomas B. v. Lydia D.

October 1, 2009

IN RE THOMAS B., PETITIONER-RESPONDENT,
v.
LYDIA D., RESPONDENT-APPELLANT.



Respondent appeals from an order of the Family Court, New York County (Gloria Sosa-Lintner, J.), entered on or about May 2, 2008, insofar as it denied her mother's objection to the Support Magistrate's finding that the parties' son was emancipated for a six-month period, abated the child support for said period and fixed child support arrears; and an order, same court (Nicholas J. Palos, Support Magistrate), entered on or about May 30, 2008, insofar as it awarded those arrears and terminated the child support provision of the divorce judgment.

The opinion of the court was delivered by: Sweeny, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

David B. Saxe, J.P., John W. Sweeny, Jr., Karla Moskowitz, Rolando T. Acosta and Rosalyn H. Richter, JJ.

The issue presented is whether, by written agreement, two parents may terminate the child support obligation because of the child's full-time employment, without a simultaneous showing of the economic independence of the child. We hold they may not.

Pursuant to a stipulation of settlement entered into as part of the parties' judgment of divorce, petitioner father was obligated to pay annual child support until the parties' child reached the age of 21 or was otherwise "emancipated." The stipulation defined emancipation as, inter alia, "the Child's engaging in fulltime employment; fulltime employment during a scheduled school recess or vacation period shall not, however, be deemed an emancipation event."

A petition for enforcement, dated February 6, 2006, was brought by respondent mother to enforce the child support provision of the stipulation. Petitioner thereafter brought a petition for downward modification, dated November 11, 2006, seeking termination of his child support obligations on the grounds of the child's "emancipation and/or abandonment," retroactive to the date of emancipation. He also sought a refund of any overpayment of child support.

Respondent thereafter moved to dismiss the petition for downward modification, which motion was granted to the extent of dismissing the cause of action alleging abandonment. The court determined that issues of fact remained regarding whether the child was in fact emancipated, and if so, when that event occurred.

Petitioner thereafter moved for summary judgment on the issue of emancipation. He argued that under the terms of the stipulation of settlement, the child became emancipated by reason of his full-time employment at a music store from July through December 2005. He also moved for a suspension of his support obligation, for a refund of any overpayment, retroactive to the date of emancipation, and for dismissal of respondent's enforcement proceeding.

Respondent opposed the motion, arguing that during the time in question, the child was living in a halfway house as part of his treatment for substance abuse. His employment at the music store was one of the conditions of that treatment. She also argued that the child was not economically independent, as he received financial support from her in addition to her payment of 100% of his unreimbursed medical expenses.

The Support Magistrate granted petitioner's motion in toto, finding that the child's full-time employment as of July 2, 2005 was an emancipation event pursuant to the stipulation of settlement, directed the refund of all child support received for the period beginning August 1, 2005, and holding respondent liable for petitioner's counsel fees. Finally, he dismissed respondent's enforcement petition.

In arriving at his decision, the Magistrate stated that "full-time employment" should be given its "common meaning," and that "[w]orking and being compensated for a work schedule that runs from 10:00 a.m. to 5:00 p.m. five days a week with a paid lunch break is a standard thirty-five hour work week which, when worked by an individual, is considered full-time employment."

Respondent filed written objections with Family Court, arguing that the decision regarding both emancipation and retroactive abatement of arrears was contrary to long established case law. She further argued that the award of attorney's fees was erroneous. The court reinstated the summary judgment motion and petitions and remanded the matter, holding that the Magistrate had not adequately addressed the issue of emancipation, particularly with regard to the issue of whether the parties intended that the child be economically independent to be considered emancipated. Moreover, the Magistrate was directed to consider the child's status from January 2006, when he ceased working at the music store, through September 25, 2007, the date of his 21st birthday.

In a supplemental decision, the Magistrate additionally held that in the context of child support, it was standard practice for courts to deem an individual a full-time employee when working and being paid for 35 to 40 hours per week. He further found that respondent did not raise a triable issue of fact that the parties intended the child to be economically independent in order to be deemed emancipated. With respect to the period from January 2006 through September 25, 2007, the Magistrate held there would have been a support obligation but for the fact that the occurrence of emancipation resulted in a termination of the support order. As there was no de novo order of support once the child became "re-unemancipated" due to the loss of his full-time employment, respondent had no obligation to provide support. Finally, he ...


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