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Saturday, June 08, 2019

Recent Decisions May 1, 2019 to June 1, 2019



  
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).