Couple Cannot 'Contract Away' Child Support Duty

A support magistrate granted Thomas B.'s petition, holding that “full-time employment” must be given its “common meaning,” which encompasses working 35 hours per week. Manhattan Family Court Judge Gloria Sosa-Lintner granted Lydia D.'s objections in part, but let stand the magistrate's central finding, that “under the terse language” of the separation agreement, Timothy was in fact emancipated for the six months he worked at the record store.

The Appeal

Lydia D. appealed, and in an 11-page decision, the First Department held that the couple's divorce agreement may not broaden the legal definition of emancipation. Under the New York's well-settled case law, Justice Sweeny wrote, the test for emancipation is “economical independence,” not “full-time employment ' . Here, on the issue of whether the child was economically independent of his parents as a result of his working 35 hours per week while living in a halfway house and not attending school, we find insufficient evidence in the record to justify a finding that he was self-supporting,” the panel concluded.

The panel remanded the matter to Judge Sosa-Lintner for a recalculation of arrears. The court also awarded attorneys' fees to Lydia D. Peter F. Edelman represented Lydia D. Mr. Edelman did not return a call for comment.

Mark Fass is a reporter for the New York Law Journal, a sister publication of this newsletter. He can be reached at [email protected].

A New York appellate court has refused to enforce a separation agreement that allowed a father to terminate child-support payments to his ex-wife if their teen-aged son “engag[ed] in full-time employment.” Enforcement of the agreement would run afoul of both precedent and pubic policy, the unanimous Appellate Division, First Department, panel concluded. Justice John W. Sweeny Jr. wrote for the unanimous panel in Thomas B. v. Lydia D., 09-06789:

[T]he parties cannot contract away the duty of child support. 'Despite the fact that a separation agreement is entitled to the solemnity and obligation of a contract, when children's rights are involved the contract yields to the welfare of the children. The duty of a parent to support his or her child 'shall not be eliminated or diminished by the terms of a separation agreement,' nor can it be abrogated by contract.

Background

Petitioner Thomas B. initiated the present action for downward modification, pro se, against his former wife, Lydia D., in November 2006. Thomas B. sought, among other things, the termination of his child support obligations, on the grounds that the couple's son, Timothy, worked 35 hours per week at a record store. Per the terms of the couple's divorce agreement, which defined emancipation as, inter alia, “engaging in full-time employment,” Timothy was now emancipated, Thomas B. argued.

Lydia D. opposed the motion. She contended that their son's employment did not signify independence, but rather simply satisfied the terms of his drug-rehabilitation program. He remained economically dependent on her, she contended, as evidenced by her ongoing financial support and her payment of his medical expenses.

A support magistrate granted Thomas B.'s petition, holding that “full-time employment” must be given its “common meaning,” which encompasses working 35 hours per week. Manhattan Family Court Judge Gloria Sosa-Lintner granted Lydia D.'s objections in part, but let stand the magistrate's central finding, that “under the terse language” of the separation agreement, Timothy was in fact emancipated for the six months he worked at the record store.

The Appeal

Lydia D. appealed, and in an 11-page decision, the First Department held that the couple's divorce agreement may not broaden the legal definition of emancipation. Under the New York's well-settled case law, Justice Sweeny wrote, the test for emancipation is “economical independence,” not “full-time employment ' . Here, on the issue of whether the child was economically independent of his parents as a result of his working 35 hours per week while living in a halfway house and not attending school, we find insufficient evidence in the record to justify a finding that he was self-supporting,” the panel concluded.

The panel remanded the matter to Judge Sosa-Lintner for a recalculation of arrears. The court also awarded attorneys' fees to Lydia D. Peter F. Edelman represented Lydia D. Mr. Edelman did not return a call for comment.

Mark Fass is a reporter for the New York Law Journal, a sister publication of this newsletter. He can be reached at [email protected].