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In re Monti

Supreme Court of New York, Second Department

June 14, 2017

In the Matter of Diana Monti, respondent,
Gary DiBedendetto, appellant. Docket No. U-4423-09/13H

          Matthew S. Zuntag, Staten Island, NY, for appellant.

          Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Elizabeth I. Freedman of counsel), for respondent.


          DECISION & ORDER

         Appeal by the father from an order of the Family Court, Richmond County (Arnold Lim, J.), dated April 4, 2016. The order denied the father's objections to an order of that court (Janele Hyer-Spencer, S.M.) dated November 9, 2015, which, after a hearing, granted the mother's petition to modify a prior order of support.

         ORDERED that the order dated April 4, 2016, is affirmed, without costs or disbursements.

         The mother and the father are divorced. At issue on this appeal is the father's child support obligation for the parties' youngest child, born June 9, 1994. Pursuant to a March 2012 order of support, the father was directed to pay a certain sum toward the support of the subject child. In September 2012, the child, then 18 years old, moved out of the mother's home, established his own residence, and began paying for all of his own expenses. Thereafter, the father filed a petition to terminate his support obligations. By order dated September 28, 2012, the child was declared emancipated and the March 2012 order of support was suspended. In or around September 2013, the child returned to the mother's home.

         Thereafter, the mother sought to reinstate and modify the March 2012 order of support, alleging that the subject child's return to her home constituted a change of circumstance. During the pendency of this matter, on June 9, 2015, the child turned 21 years old. A hearing was commenced shortly thereafter for purposes of determining the father's retroactive child support obligation, if any. At the conclusion of the hearing, the Support Magistrate determined that the child's unemancipated status had been revived and calculated the father's child support obligation based upon an imputed income of $103, 310. In an order dated November 9, 2015, the Support Magistrate directed the father to pay $337 per week, effective September 23, 2013, to June 9, 2015, for an aggregate retroactive amount of $29, 752.92. The father filed objections to the Support Magistrate's order, arguing that the Support Magistrate erred in concluding that the child was no longer emancipated and erred in imputing income in the amount of $103, 310. By order dated April 4, 2016, the Family Court denied the father's objections. The father appeals.

         The Support Magistrate properly determined that the child was no longer emancipated. "It is fundamental public policy in New York that parents of minor children are responsible for their children's support until age 21" (Matter of Guevara v Ubillus, 47 A.D.3d 715, 716, citing Matter of Roe v Doe, 29 N.Y.2d 188, 192-193; see Family Ct Act § 413; Matter of Natoli v Mueller, 71 A.D.3d 899, 899; Matter of Cricenti v Cricenti, 64 A.D.3d 776, 777). Emancipation of the child suspends a parent's support obligations (see Matter of Roe v Doe, 29 N.Y.2d at 192-193; Matter of Natoli v Mueller, 71 A.D.3d at 899). Under the doctrine of economic emancipation, "[c]hildren of employable age are emancipated if they become economically independent of their parents through employment, and are self-supporting" (Matter of Fortunato v Fortunato, 242 A.D.2d 720, 721, citing Matter of Alice C. v Bernard G.C., 193 A.D.2d 97, 105). Under the doctrine of constructive 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, against the 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 N.Y.2d at 192; see Matter of Barlow v Barlow, 112 A.D.3d 817, 818). "[A] child's unemancipated status may be revived provided there has been a sufficient change in circumstances to warrant the corresponding change in status" (Matter of Bogin v Goodrich, 265 A.D.2d 779, 781; see Matter of Hamdy v Hamdy, 203 A.D.2d 958, 958). The burden of proof is on the party asserting emancipation (see Matter of French v Gordon, 103 A.D.3d 722; Matter of Gold v Fisher, 59 A.D.3d 443, 444). In reviewing a determination of the Family Court, deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses (see Matter of Casey v Kelleran, 148 A.D.3d 800, 801; Matter of VanBeers v VanBeers, 129 A.D.3d 1095, 1095).

         Here, the record supports the Support Magistrate's conclusion that the subject child was neither economically nor constructively emancipated. The evidence demonstrates that the child, who was enrolled in and attending college, voluntarily returned to the mother's home in or around September 2013. Although the child was employed part-time and received an annual sum of $30, 000 from a personal injury settlement, the uncontroverted evidence demonstrated that the child was saving that money for future use and was not utilizing any of that money toward his own living expenses (see Matter of Alice C. v Bernard G. C., 193 A.D.2d at 106; Guiry v Guiry, 159 A.D.2d 556; cf. Matter of Fortunato v Fortunato, 242 A.D.2d 720). The mother paid for all of the household expenses and food, as well as for the child's car insurance, cell phone service, clothing, and personal items.

         The Family Court also properly denied the father's objection with respect to the Support Magistrate's imputation of income. "The level of child support is determined by the parents' ability to provide for their children" (Signorile v Signorile, 102 A.D.3d 949, 951; see Gorelik v Gorelik, 71 A.D.3d 730, 731; Bigler v Bigler, 299 A.D.2d 435; Matter of Zwick v Kulhan, 226 A.D.2d 734). In assessing this ability, "[t]he court is not required to rely on a party's account of his or her finances, and may instead impute income based on the party's past income or demonstrated earning potential" (Siskind v Siskind, 89 A.D.3d 832, 834; see Morrissey v Morrissey, 259 A.D.2d 472, 472-473). Where the party's testimony regarding his or her finances is not credible, "the court is justified in finding a true or potential income higher than that claimed" (Castello v Castello, 144 A.D.3d 723, 725; see Abizadeh v Abizadeh, 137 A.D.3d 824, 825; Mosso v Mosso, 84 A.D.3d 757, 759). The court has considerable discretion in determining whether income should be imputed to a party and the court's credibility determinations are accorded deference on appeal (see Castello v Castello, 144 A.D.3d at 725; Matter of Funaro v Kudrick, 128 A.D.3d 695, 696; Siskind v Siskind, 89 A.D.3d at 834). "Because [i]mputed income more accurately reflects a party's earning capacity and, presumably, his or her ability to pay[, ]... [it] may be attributed to a party as long as the court articulates the basis for imputation and the record evidence supports the calculations" (Matter of D'Andrea v Prevost, 128 A.D.3d 1166, 1167 [internal quotation marks and citations omitted]; see Matter of Gravenese v Marchese, 57 A.D.3d 992, 993; Matter of Ambrose v Felice, 45 A.D.3d 581, 582). Here, the record supports the Support Magistrate's imputation of $103, 310 in income to the father, and thus, the court properly denied the father's objections (see Sharlow v Sharlow, 77 A.D.3d 1430, 1431; Matter of Kasabian v Chichester, 72 A.D.3d 1141, 1142; Matter of Commissioner of Social Servs. v Monica, 10 A.D.3d 260, 260; Kosovsky v Zahl, 257 A.D.2d 522, 523).

         The father's remaining contentions are without merit.

          RIVERA, J.P., CHAMBERS, MALTESE and ...

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