June 1, 2019
Appellate Division, Second Department
Domestic Relations Law 253 does not provide that a defendant must provide plaintiff with a Get
In Cohen v Cohen, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 2112972, 2019 N.Y. Slip Op. 03764 (2d Dept.,2019) Supreme Court, in
effect, directed the defendant to provide the plaintiff with a Get (a Jewish
religious divorce decree) prior to receiving any distribution of marital
property. The Appellate Division reversed. It pointed out that Domestic
Relations Law 253 does not provide that a defendant
in an action for divorce, where the marriage was solemnized by a member of the
clergy or a minister, must provide the plaintiff with a Get. Since the court
should not have directed the defendant to provide the plaintiff with a Get, the
penalties imposed due to the defendants failure to
do had to be vacated.
Motion to dismiss under CPLR 3012(b) denied
where settlement discussions satisfy requirement of reasonable excuse for
failing to serve a timely complaint.
In Patouhas v Patouhas, 2019 WL 2202430
(2d Dept.,2019) plaintiff commenced an action for a divorce on March 1, 2016,
by service of a summons with notice upon the defendant. In a notice of
appearance dated March 10, 2016, the defendant demand[ed] a
copy of the Complaint and all papers in this action be served upon [him] at the
address provided. In a letter dated April 1, 2016, counsel for the plaintiff
acknowledged receipt of the notice of appearance, noted that the parties had
engaged in discussions concerning a resolution of the matter, and requested
certain disclosure. Defendant moved by
notice of motion dated April 20, 2016, to dismiss the action based upon the
plaintiffs failure to serve a complaint in
accordance with CPLR 3012(b). On April 26, 2016, the defendant was served with
a verified complaint. Supreme Court denied the defendants motion and
deemed the complaint timely served on the basis that the short delay was not
willful, was a result of settlement negotiations, and did not prejudice the
defendant and that the plaintiff demonstrated a meritorious cause of action.
The Appellate Division affirmed. It held that to successfully defend against a
motion to dismiss for failure to serve a complaint pursuant to CPLR 3012(b), a
plaintiff must generally demonstrate that his or her action is potentially
meritorious and that he or she has a reasonable excuse for failing to serve a
timely complaint. Supreme Court providently exercised its discretion in
concluding that the delay caused by settlement negotiations was reasonable
since the settlement discussions were undertaken in good faith and the delay
was of a short duration. In addition, the plaintiffs submission
of a verified complaint was sufficient to satisfy the requirement to
demonstrate a [potentially] meritorious cause of action.
Absent statute, party can’t be held in Civil
Contempt under Judiciary Law 753[A][3] for nonpayment
money where enforcement can be accomplished through judgment execution
In Matter of Lew v Sobel, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 2202453, 2019 N.Y. Slip Op. 03972 (2d Dept., 2019) the Appellate
Division held, inter alia, that Supreme Courts properly
denied the fathers motion which were to hold the mother
in civil contempt. The mother could not be held in civil contempt for her
failure to pay money judgments obtained by the father. Absent statutory
provision to the contrary, a party to an action or special proceeding cannot be
held in civil contempt for nonpayment of a sum of money, ordered or adjudged by
the court to be paid, where enforcement can be accomplished through judgment
execution (see Judiciary Law 753[A][3]; Liang v. Yi Jing Tan, 155
A.D.3d 1023, 1024, 64 N.Y.S.3d 556; Cantalupo Constr. Corp. v. 2319 Richmond
Terrace Corp., 141 A.D.3d 626, 627, 34 N.Y.S.3d 616).
Oral promise to pay credit card bills during
the pendency of action unenforceable
In Novick v Novick, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 2202438 (Mem), 2019 N.Y. Slip Op. 03976 (2d Dept., 2019) the Appellate
Division affirmed an order which denied the wifes motion to
direct the plaintiff to pay her credit card bills during the pendency of the
action. It held that the plaintiffs alleged
promise to pay the defendants credit card bills during the pendency
of the action was unsupported by any consideration and legally unenforceable.
Appellate Division, Third Department
Trial court can adjust equitable
distribution award where it determines after trial that temporary maintenance
award was excessive.
In Johnson v Johnson, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 2127532, 2019 N.Y. Slip Op. 03855 (3 Dept., 2019) the Plaintiff (wife)
and defendant (husband) were married in 2003 and had one child (born in 2002).
The wife commenced this action for divorce in December 2015. After the trial,
Supreme Court, inter alia, ordered the husband to pay child support of $ 723.33
per month effective May 1, 2017, reimbursed the husband for overpaid support
and awarded the wife $ 17,031, representing capital contributions from marital
assets to two marital businesses.
The Appellate Division observed that
after determining the parties respective child support obligations,
Supreme Court proceeded to undertake an analysis of what the husbands temporary
maintenance and support obligations would have been if the wifes actual
salary had been considered during the pendency of the action and determined
that the husband had overpaid support in the
amount of $ 3,285.52. The parties agreed to the support payments during the
pendency of the action, but it was not clear what portion of the agreed‑upon support payments
were attributed to child support, and Supreme Courts final
child support order was not retroactive to the date the action was commenced.
Generally, absent certain circumstances not present here, there is a strong
public policy against recoupment of support overpayments.
However, a trial court has the authority to adjust an equitable distribution
award where it is determined after trial that a temporary maintenance award was
excessive. Under the facts and circumstances presented, it found no abuse of
discretion in Supreme Courts determination to, effectively, adjust
the equitable distribution award to reflect an excessive temporary maintenance
award (see Johnson v. Chapin, 12 N.Y.3d at 466, 881 N.Y.S.2d 373, 909 N.E.2d
66).
The Appellate Division found no abuse of
discretion in the Supreme Courts award to the wife of the amount that
represented her share of the capital contributions to the marital businesses.
Generally, the valuation of a business for
equitable distribution purposes is an exercise properly within Supreme Courts fact‑finding
power to be guided by expert testimony, and an
equitable distribution award will not be disturbed absent an abuse of
discretion or failure to consider the requisite statutory factors. It was not
disputed that marital funds were used to create both businesses and that both
were marital property. Although it was apparent that there was some value to
the businesses, in the absence of any expert evidence, the court properly
declined to value and distribute a share of the marital businesses. Under the
circumstances presented, it found no abuse of discretion in the courts award to
the wife representing her contributions from marital assets to start the
businesses.
May 16, 2019
Appellate Division, First Department
Appellate
Division Holds that Husband Not entitled to counsel fee hearing where trial
court reviewed underlying bills and motion papers
In Wolman v Shouela, --- N.Y.S.3d ----, 2019 WL 1905670,
2019 N.Y. Slip Op. 03286 (1st Dept., 2019) the Appellate Division
affirmed an order which awarded plaintiff wife $ 325,000 in counsel fees to be
paid by defendant husband where the parties agreement provided, inter alia,
that “the Husband shall pay all of his and the Wife’s reasonable counsel fees
in connection with” his motion to modify visitation. It rejected the husband’s
argument that he was entitled to a hearing on the issue of reasonable counsel
fees because the billing statements submitted in support of the wife’s motion
for counsel fees were not reasonably detailed. It found that the trial court,
being fully familiar with all of the underlying proceedings, appropriately
determined that the fees sought were reasonable by reviewing the detailed
billing statements and the motion papers.
Family Court Act
§ 153 does not authorize the issuance of a warrant for the protective arrest of
a child who is neither a respondent nor a witness in a Family Court proceeding
In re Zavion O., --- N.Y.S.3d ----, 2019 WL 1998393 (1st
Dept., 2019) the Appellate Division held that Family Court Act § 153, relied on
by Family Court, does not authorize the issuance of a warrant for the
protective arrest of a child who is neither a respondent nor a witness in a
Family Court proceeding for purposes of ensuring the child’s health and safety
rather than to compel his or her attendance in court. The Court observed that
notwithstanding that such protective arrests may have become a practice of
Family Court under very compelling circumstances, without more explicit
statutory authority it could not endorse the legality of the practice. The
issuance of an arrest warrant must proceed from explicit statutory authority.
Such was lacking here, as was any authoritative decisional law. The two
children in these cases were at high risk of bringing harm to themselves or
putting themselves in positions where others may harm them if they were left to
their own choice of absconding from foster care facilities to enter life on the
streets. The record demonstrated the likelihood that they would run away again
if not in a controlled setting of some nature, thereby repeating the cycle of
being at risk on the streets. The Court noted that Family Court Act section 153
authorizes Family Court to issue “in a proper case a warrant or other process
to secure or compel the attendance of an adult respondent or child . . . whose testimony or presence at a hearing or
proceeding is deemed by the court to be necessary . . .” Section 153–a governs
the execution of the arrest warrant, which, pursuant to subsection (c) may
include “such physical force as is justifiable” by reference to the Penal Law.
Although the decision accompanying an arrest in this case contemplated the
absence of handcuffs, the statute nevertheless allows for it and a restriction
in one case has no effect, of course, in other similar cases. The Court held
that the statute does not authorize the arrest of a nonrespondent child who is
not needed as a witness in a Family Court hearing or proceeding under these
circumstances despite the seriousness of the concerns. These are not juvenile
delinquency cases, and despite the court’s gloss about securing neither child’s
attendance at a proceeding was required for testimonial purposes. A textual
analysis of the statute did not support a conclusion that an arrest warrant may
be issued as a protective rather than a coercive device for testimonial or
quasi-prosecutorial purposes. The Court distinguished Family Ct Act § 718 which
allows a peace officer to return a runaway child to home but does not authorize
an arrest. The court noted that it has rejected a juvenile delinquency
adjudication premised solely on contempt pursuant to Family Ct Act § 156
arising from a child’s violation of a PINS dispositional order when he
absconded from his ACS placement, nor are 22 NYCRR 205.26 or 205.80, addressing
children who abscond from facilities to which they have been remanded,
available for present purposes. Family Ct Act § 1037, authorizing a warrant to
bring a child’s parent or guardian rather than the child before the court, also
provided no relevant authority.
Appellate
Division, Third Department
Family Court
lacks subject matter jurisdiction to determine a violation claim with regard to
a Florida judgment registered for enforcement without the filing of a petition
pursuant to Family Ct Act § 453.
In Matter of Pudvah v Pudvah, --- N.Y.S.3d ----, 2019 WL
1940265, 2019 N.Y. Slip Op. 03414 (3d Dept., 2019) Petitioner (mother) and
respondent (father) were divorced by a 2014 judgment of a Florida court.
Pursuant to the judgment, the father was obliged to pay the mother $ 84 a month
in child support. The father resided in New York and, in 2016, the Florida
agency responsible for collecting his child support payments transmitted the
judgment and requested that it be registered in this state for enforcement
purposes (see Family Ct Act § 580–602[1]). In November 2016, the Support
Magistrate issued an order registering the 2014 judgment for enforcement and
finding that the father owed arrears. The Support Magistrate also viewed the
initial registration request as a “pending enforcement petition” and went on to
find, in a February 2017 order, that the father had willfully violated the
support order and recommended a suspended sentence of 30 days. The February
2017 order came before Family Court for confirmation (see Family Ct Act §
439[a]) and, although the father pointed out that a violation petition had
never been filed. The Department of Social Services (DSS) subsequently filed a
violation petition “to clean things up,” but the review of the February 2017
order continued. Family Court confirmed the February 2017 order, noting the
absence of any formal effort by the father to set it aside. The Appellate
Division reversed. It held that Family Court lacked subject matter jurisdiction
to issue the order. The Uniform Interstate Family Support Act (see Family Ct
Act art 5–B) provides that “[a] registered support order issued in another
state ... is enforceable in the same manner and is subject to the same procedures
as an order issued by a tribunal of this state” (Family Ct Act § 580–603[b] ).
In New York, proceedings for the violation of a support order “shall be
originated by the filing of a petition containing an allegation that the
respondent has failed to obey a lawful [support] order,” and Family Court lacks
subject matter jurisdiction to determine a violation claim without that
petition (Family Ct Act § 453). DSS eventually did file a petition alleging
that the father had failed to comply with the support provisions contained in
the 2014 judgment (see Family Ct Act §§ 453[a]; 580–603[b]). This proceeding
did not arise out of that petition, however, and was not rendered viable by its
filing. Family Court accordingly lacked subject matter jurisdiction to render the
appealed-from order, and “the claim that a court lacked subject matter
jurisdiction ‘may be raised at any time and may not be waived’
Where family court
confirms finding of contempt but and arrears are paid prior to prior to the
imposition of the sentence, Family Court abused its discretion by issuing the
order of commitment.
In Matter of Marotta v Casler, -- N.Y.S.3d ----, 2019 WL
1940244 (Mem), 2019 N.Y. Slip Op. 03417 (3d Dept., 2019) after the father was
found to be in willful violation of his court-ordered child support obligation,
Family Court confirmed the Support Magistrate’s finding of a willful violation
and scheduled the matter for a sanctions hearing. At that hearing, the mother’s
attorney informed the court that the father had recently paid $ 500 to the
support collections unit, thereby satisfying his arrears and bringing his
account to a credit of $ 61.62. Nevertheless, Family Court sentenced the father
to 20 days in jail. The Appellate Division reversed so much thereof as
committed respondent to jail. It noted that upon finding that a respondent has
willfully failed to obey a lawful order of support, Family Court may “commit
the respondent to jail for a term not to exceed six months” (Family Ct. Act §
454[3][a]). “Such a sentence is in the nature of a civil contempt, which ‘may
only continue until such time as the offender, if it is within his or her
power, complies with the support order’. Inasmuch as the father paid his child
support arrears in full prior to the imposition of the sentence, Family Court
abused its discretion by issuing the order of commitment.
Where party
obtains order vacating support order on the ground that personal jurisdiction
had never been obtained court must vacate the judgment absolutely, and may not
impose conditions upon the vacatur. The support order and all subsequent
proceedings are nullified by the determination.
In Matter of Bowman v Muniz, --- N.Y.S.3d ----, 2019 WL
1940201, 2019 N.Y. Slip Op. 03422 (3d Dept., 2019) in April 2016, the mother
commenced a proceeding seeking child support. She attempted to serve the father
by mail, but the mailing was returned to Family Court marked as unclaimed and
unable to forward. In July 2016, the Support Magistrate issued an order of
support on the father’s default. The father moved to vacate the default order,
asserting, among other things, that the mother had failed to serve him and that
the court lacked personal jurisdiction. In April 2017, the Support Magistrate
issued an order that vacated the July 2016 order of support on the ground that
“personal jurisdiction was not obtained over [the father] when the order of
support was issued the order restored the mother’s petition to the calendar and
scheduled a subsequent appearance. Neither the father nor his counsel appeared,
and the Support Magistrate issued a second default order restoring the July
2016 order, effective as of the proceeding’s commencement date in April 2016.
The father filed objections to the second default order contending that the
court never obtained personal jurisdiction and requesting vacatur of the second
order and all accrued arrears as well as dismissal of the petition. The court
denied the objections without prejudice on the basis that the order was entered
on default and, as such, the father’s remedy was to move before the Support
Magistrate to vacate the order. The Appellate Division held that Family Court
erred in denying the father’s objections. The proper procedure for challenging
an order of child support entered on default is ordinarily to move to vacate
the order before the Support Magistrate and then, if necessary, to file
objections from the denial of that motion. The father had already properly
followed that procedure in challenging the July 2016 child support order and
had obtained an order vacating the support order on the ground that personal
jurisdiction had never been obtained. Upon making such a determination, a court
“must vacate [a default] judgment absolutely, and may not impose terms and
conditions upon the vacatur”. The first order of support and all subsequent
proceedings were nullified by the determination that there was no personal
jurisdiction, and the Support Magistrate had no further authority. For the same
reasons, Family Court was required to dismiss the petition. The court had no
jurisdiction over the father and no authority to do anything but dismiss the
petition. Accordingly, the second order of support was vacated and the petition
dismissed.
Appellate Division,
Fourth Department
The Appellate
Division, noting this was a fact pattern of first impression, held that the
collective provisions of Domestic Relations Law § 76 are limitations on the
subject matter jurisdiction of the New York courts in custody matters. Once
home state jurisdiction has attached in New York under section 76(1)(a), it
continues for six months after the child’s permanent departure from New York so
long as a parent continues to reside here.
In Nemes v Tutino, --- N.Y.S.3d ----, 2019 WL 1872475,
2019 N.Y. Slip Op. 032365 (4th Dept., 2019) the parties were the
parents of a child born in New Jersey on February 18, 2015. Following his
birth, the child lived in New Jersey. The mother relocated with the child to
Steuben County, New York, and she commenced the custody proceeding on January
8, 2016 in the Family Court. In her petition the mother averred that the child
was moved from New Jersey to New York on July 15, 2015. The mother argued the
New York courts had subject matter jurisdiction over this matter because “this
state is the home state of the child on the date of the filing of the
petition.” When the father did not appear and could not be reached
telephonically the court then dismissed the father’s cross petition and granted
the mother’s petition. The father then moved to vacate the order, arguing that
the court lacked subject matter jurisdiction over this proceeding because, at
the time of its commencement on January 8, 2016, New York was not the child’s
“home state” for purposes of the Domestic Relations Law. The mother argued, that the court had subject
matter jurisdiction over this proceeding because: “[the father’s] own facts
indicate that, at most, the child was present in the State of New Jersey for
five and a half months. Subsequent to that, the child was then present in the
State of New York for five and a half months. Based on those facts, it is
undisputed that either state could assume jurisdiction as the child, in fact,
did not have a ‘home state.’” The court denied the father’s motion to vacate.
The Appellate Division, noting this was a fact pattern of
first impression, reversed. It observed that DRL §76, which is colloquially
known as “home state jurisdiction,” applies when New York “is the home state of
the child on the date of the commencement of the proceeding, or was the home
state of the child within six months before the commencement of the proceeding
and the child is absent from this state but a parent ... continues to live in
this state” (Domestic Relations Law § 76[1][a] ). When read in conjunction with
the statutory definition of “home state” (§ 75–a [7]), jurisdiction under
section 76(1)(a) attaches when the child has resided with a parent in New York
either since birth or for the six consecutive months immediately preceding the
commencement date of a custody proceeding. Once home state jurisdiction has
attached in New York under section 76(1)(a), it continues for six months after
the child’s permanent departure from New York so long as a parent continues to
reside here. The three alternative jurisdictional predicates come into play
only when another state lacks or waives home state jurisdiction under the
uniform criteria established by the UCCJEA and codified in New York as Domestic
Relations Law § 76(1)(a). The collective provisions of Domestic Relations Law §
76 are limitations on the subject matter jurisdiction of the New York courts in
custody matters. In the absence of an emergency situation (see § 76–c), a New
York court “has jurisdiction to make an initial child custody determination
only if” one of its enumerated jurisdictional predicates exists (§ 76[1]). A
court that makes a custody determination in derogation of section 76(1) has
exceeded its subject matter jurisdiction, and the corresponding order is
properly vacated under CPLR 5015(a)(4).
The Appellate Division rejected the notion that the
father waived any objection to the court’s subject matter jurisdiction. It is
black letter law that a “defect in subject matter jurisdiction may be raised at
any time by any party or by the court itself, and subject matter jurisdiction
cannot be created through waiver, estoppel, laches, or consent. It also held that the Court did not have home
state jurisdiction over this proceeding as of the commencement date. Under
either party’s proffered time line, the child had not lived in New York either
since birth or for six months as of January 8, 2016. New York therefore was not
the child’s “home state” on January 8, 2016 and, as the mother now conceded,
the court simply did not have home state jurisdiction over this proceeding
under section 76(1)(a). Instead of claiming home state jurisdiction under
Domestic Relations Law § 76(1)(a), the mother argued that the court had subject
matter jurisdiction over this proceeding under the safety net provision of section
76(1)(d), which confers jurisdiction to make custody determinations when,
insofar as relevant here, “no court of any other state would have jurisdiction
under the criteria specified in [section 76(1) ] (a).” The Appellate Division
rejected the mother’s reliance on section 76(1)(d). Under the special UCCJEA
definition of “home state” applicable to infants under six months old (Domestic
Relations Law § 75–a [7]; NJ Stat Ann § 2A:34–54), New Jersey was the child’s
“home state” between the date of his birth (February 18, 2015) and the alleged
date of his move to New York (July 15, 2015). Because the UCCJEA confers
continuing jurisdiction on the state that “was the home state of the child
within six months before the commencement of the proceeding” if a parent lives
in that state without the child (Domestic Relations Law § 76[1][a]; NJ Stat Ann
§ 2A:34–65 [a][1] ), it follows that New Jersey retained continuing
jurisdiction of this matter until January 15, 2016, i.e., six months after the
child’s alleged move to New York on July 15, 2015 and one week after the proceeding was commenced on January 8, 2016.
Thus, New York lacked jurisdiction under section 76(1)(d) because New Jersey
could have exercised jurisdiction under the criteria of section 76(1)(a) on the
date of this proceeding’s commencement (see NJ Stat Ann § 2A:34–65 [a][1]
[identical New Jersey provision to Domestic Relations Law § 76(1)(a)]). Section
76(1)(d) applies only when no state could have exercised jurisdiction under the
criteria of section 76(1)(a) at the commencement of the proceeding, and that is
simply not the situation here.
The Appellate Division also rejected the mother’s
argument that the court had subject matter jurisdiction because “New York was
the state in which the child was present at the commencement of the
proceedings.” That contention is interdicted by Domestic Relations Law § 76(3),
which says that the subject child’s “[p]hysical presence ... is not necessary
or sufficient to make a child custody determination.” Indeed, by examining the
court’s jurisdiction through the lens of the child’s physical presence instead
of his “home state,” the mother would have us resurrect a jurisdictional
modality that has been defunct for over 40 years.
Fourth
Department Holds that enforcement of the parties’ choice of law agreement
provision in favor of New Jersey was unenforceable where it would violate New
York’s strong public policy enunciated in Child Support Standards Act.
In
Matter of Brooks v Brooks, 2019 WL 1871032 (4th Dept.,2019) the
parties 2011 New Jersey judgment of divorce incorporated but did not merge the parties’
separation agreement, which in pertinent part stated that, “[n]otwithstanding
the future residence or domicile of either party, this Agreement shall be
interpreted, governed, adjudicated and enforced in New Jersey in accordance
with the laws of the State of New Jersey.” In 2016, when the parties and their
children were all living in New York, the mother filed a petition in Family
Court seeking modification of the support order. During that proceeding, the
mother also registered the support order in that court (see generally Family
Ct. Act § 580–601 et seq.). The Support Magistrate held that a modification of
the support order was proper under the terms of the agreement, which permitted
the parties to seek modification of the father’s child support obligation every
two years, and calculated the amount of child support pursuant to New Jersey
law. The mother filed objections asserting that New York law should govern that
calculation (first objection), that the matter should be remitted for a hearing
to recalculate the father’s child support obligation (second objection), and
that she was entitled to attorney’s fees. Family Court denied the objections,
concluding that, pursuant to the choice of law provisions of Family Court Act §
580–604, “the law of the issuing state (New Jersey) governs the nature, extent,
amount and duration of current payments under a ... support order [that has
been registered in New York].”
The Appellate Division reversed and granted both
objections. It concluded that the court had jurisdiction pursuant to the
Uniform Interstate Family Support Act ([UIFSA] Family Ct Act art 5–B) to
resolve the issues raised and objections (see § 580–613[a]). The UIFSA
unequivocally provides that where, as here, the parents reside in this state
“and the child does not reside in the issuing state, a tribunal of this state
has jurisdiction to enforce and to modify the issuing state’s child support
order in a proceeding to register that order” (§ 580–613[a]; see also 28 USC §
1738B [e][1]; [i] ). It held that New York law had to be applied to determine
the father’s child support obligation inasmuch as the statute further provides
that “[a] tribunal of this state exercising jurisdiction under this section
shall apply ... the procedural and substantive law of this state to the
proceeding for enforcement or modification” (Family Ct. Act § 580–613[b] ). It
also held that section 580–604 did not control inasmuch as that section applies
to proceedings seeking to enforce prior child support orders or to calculate
and collect related arrears and does not apply to proceedings, as here, seeking
to modify such an order.
The Appellate Division further held that the Support Magistrate
erred in determining that the choice of law provision in the separation
agreement controlled over the statute. Although courts will generally enforce a
choice of law clause “ ‘so long as the chosen law bears a reasonable
relationship to the parties or the transaction’, courts will not enforce such
clauses where the chosen law violates “ ‘some fundamental principle of justice,
some prevalent conception of good morals, some deep-rooted tradition of the
common weal’ ” (Loucks v. Standard Oil Co. of N.Y., 224 N.Y. 99 [1918] ). New
York has a “strong public policy that obligates a parent to support his or her
child” (Matter of Vicki B. v. David H., 57 N.Y.2d 427 [1982]; see Schaschlo v.
Taishoff, 2 N.Y.2d 408 [1957]). Under New York law, child support obligations
are required to be calculated pursuant to the Child Support Standards Act (
[CSSA] Family Ct. Act § 413), and “ ‘[t]he duty of a parent to support his or
her child shall not be eliminated or diminished by the terms of a separation
agreement’ ” (Keller–Goldman v. Goldman, 149 A.D.3d 422, 424,[1st Dept. 2017],
affd 31 N.Y.3d 1123 [2018] ). In addition, whereas New Jersey law provides that
child support obligations generally end when a child reaches the age of 19 (see
N.J. Stat Ann § 2A:17–56.67), in New York, “[a] parent’s duty to support his or
her child until the child reaches the age of 21 years is a matter of
fundamental public policy”. Under the circumstances, and given that the parties
did not have a valid agreement to opt out of the CSSA (see generally Domestic
Relations Law § 240[1–b] [h]), it concluded that enforcement of the parties’
choice of law provision would violate those strong New York public policies. It
reversed the order insofar as appealed from, granted the mother’s first two objections,
and remitted the matter to Family Court for further proceedings.
Family Court
Full time undergraduate child’s
participation in the Air Force Reserve Officer Training Corps did not
constitute entry into the military service for purposes of emancipation
In
Matter of J.M., v. T.A. — N.Y.S.3d ----, 2019 WL 2017922, 2019 N.Y. Slip Op.
29133 (Fam.Ct., 2019) the Family Court denied the objections to the Support
Magistrates determination that the child was not emancipated. The Court held that the child’s participation
in the Air Force Reserve Officer Training Corps ( ‘ROTC’) did not constitute
entry into the military service. The child was a full time undergraduate
student attending a university outside of New York State and was employed on a
part-time basis and resides with the Respondent during academic breaks. The
Support Magistrate found a distinction exists between enlistment in military
service and participation in a Reserve Officer Training Corps program for
purposes of determining whether or not a child is emancipated. Thus, the Petitioner had a continued
obligation to provide financial support for the child to the custodial parent.
The Court noted that the child was not considered a regular member of the
military. She was not provided health care, a salary, payments for room and
board, tuition, nor other types of allowances by the Air Force. (Zuckerman v.
Zuckerman, 154 A.D.2d 666, 546 N.Y.S.2d 666) The Court also found that the
contract entered into by the child established membership in the ROTC program
but that such participation does not equate to “entry into military service”.
It is only upon fulfilling the contract terms by continuing military training,
remaining a full-time student, pursuing a degree in ICAD (Business Management),
passing the Air Force Officer Qualifying Test and graduating college, would the
child then be commissioned and thus, emancipated. The Court found that the
child was not emancipated as none of the enumerated events had occurred which
would qualify the child as having entered into active military duty service.
The
child was attending college on a full time basis, relied upon the
Respondent-Mother for health insurance coverage and was assisted by the
custodial parent in obtaining educational loans as well as being provided with
monies for motor vehicle insurance and repair costs. Family Court held that the
income derived as the result of a ‘stipend’ in the amount of $ 450.00 per month
through ROTC and part-time employment did not warrant a finding of economic
independence. The Court found the child was not economically independent nor
self-supporting in order to render a finding that she was emancipated. (Matter
of Drumm v. Drumm, 88 A.D.3d 1110, 931 N.Y.S.2d 180; Matter of Cedeno v.
Knowlton, 98 A.D.3d 1257, 951 N.Y.S.2d 412).
