Scott R. TREPEL, Plaintiff,
Rosanne TREPEL, Defendant.
Peter Bienstock, Esq., Hennessey & Bienstock LLP, for Plaintiff.
Patricia Ann Grant, Grant & Appelbaum, PC, for Defendant.
[969 N.Y.S.2d 771] LORI
S. SATTLER, J.
Defendant former wife (hereinafter " Defendant" ) moves for an order directing Plaintiff former husband (hereinafter " Plaintiff" ) to continue paying basic child support to Defendant pursuant to the terms of the parties' Stipulation of Settlement (hereinafter " Stipulation" ) incorporated into the Judgment of Divorce entered on December 19, 2003 and seeks $25,942 in purported arrears in basic child support that Plaintiff has not paid since November 2012. She also seeks $7,500 as and for counsel fees on the instant motion and an additional $15,000 in counsel fees to enable her to oppose Plaintiff's appeal of this court's prior order which found that Plaintiff owed Defendant $38,994 in cost of living increases to child support and directed that payment.
Plaintiff opposes the motion and cross-moves for a declaration that the parties' daughter (hereinafter " N." ) was emancipated pursuant to the terms of the Stipulation as of November 2, 2012 and for an award of counsel fees on the motion.
The issue of N.'s purported emancipation is key to both the motion and cross-motion. The governing provision of the Stipulation (hereinafter " Emancipation clause" ) provides as follows:
(1). ... Emancipation shall be deemed to have occurred upon the earliest happening of any of the following:
f. N.'s residing full-time away from the home of the Mother upon and after her 18th birthday, except that residence at boarding school, college or graduate school, or temporarily during summer camp or other organized summer program, shall not be deemed an Emancipation. The period, if any, from N.'s return to residence in the home of the Mother until the earliest of any other emancipation event shall be deemed a period prior to Emancipation for all purposes under this Agreement.
In response to Defendant's demand for payment of child support arrears, Plaintiff asserts that N., who turned eighteen on April 19, 2012, was emancipated as of November 8, 2012. In support of this contention Plaintiff proffers an affidavit of N. in which she states that on October 11, 2012, Defendant told her that she was going to move to Philadelphia to live with her boyfriend, which she did in November 2012. N. reported her mother's intention to Plaintiff on October 12, 2012. Thereafter Plaintiff found an apartment for N., sending her pictures while she was
at school in Atlanta. She signed a lease on November 21, 2012 and moved in over Christmas break from school after she and Plaintiff purchased furniture and household supplies.
N. further states that she does not want to live in Philadelphia, that she intends to return to her new apartment as her permanent residence when not in college and that she will use that address for her drivers license and on tax returns. She does, ...