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
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JOSEPH J.
MALTESE, BETSY BARROS, JJ.
DECISION & ORDER
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.
that the order dated April 4, 2016, is affirmed, without
costs or disbursements.
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.
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.
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).
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.
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).
father's remaining contentions are without merit.
RIVERA, J.P., CHAMBERS, MALTESE and ...