Decisions of Interest

When the first son turned 22 shortly before the beginning of his senior year of college, the father stopped making child support and tuition payments for his benefit. The mother moved for an order directing the father, inter alia, to make those payments until the end of the four-year period set out in the agreement. After Supreme Court granted the motion, the father appealed.

After observing that the separation agreement, being incorporated but not merged into the judgment of divorce, “remains a legally binding, independent contract” subject to the ordinary rules of contract interpretation, the Third Department affirmed. Those “ordinary rules” include the tenet that specific contract provisions control over general contract provisions when those terms contradict one another. See Rainbow v. Swisher, 72 NY2d 106 (1988). “Defendant's specific commitment to pay for child support and tuition expenses during the four years following graduation from high school 'until said child graduates from college,'” stated the court, “controls over the more general list of termination events,” including the event of a child attaining of the age of 22. “Furthermore,” the court noted, “both children reached the age of 22 within the four-year period and, thus, defendant's reading of the agreement impermissibly renders his promise to pay college expenses and child support for four years meaningless.” In addition, extrinsic evidence of the parties' intent at the time of contracting compelled the outcome in Supreme Court, the Third Department concluded.

Constructive Abandonment Not Found Where Parent Is Also at Fault

Because a father and son were equally responsibly for the breakdown of their relationship, it could not be said that the son had constructively abandoned his father, and the father's duty to pay child support must continue. In the Matter of Glen L.S. v. Deborah A.S., 2011 NY Slip Op 8160, *; 2011 N.Y. App. Div. LEXIS 7975 (2d Dept. 11/9/11) (Florio, J.P., Dickerson, Chambers and Cohen, J.J.).

On Dec. 16, 2010, Family Court, Nassau County, granted a father's petition to vacate the child support provisions of the parties' stipulation of settlement after concluding that the parties' child was constructively emancipated. The finding of constructive emancipation was based on the boy's refusal to speak with his father over the telephone or to respond to his text messages following an altercation that occurred between them in February 2008.

The mother appealed, and the Second Department reversed, reinstating the father's support requirement after finding that the father was at least as responsible as his son for the breakdown in communications following the February 2008 incident. Evidence was presented that soon after that altercation, the son had expressed suicidal thoughts, so he started to receive therapy. At that time, the boy, through his mother, asked the father to stay away for a while so that he could sort out his feelings. Thereafter, the father did not try to enforce visitation through the courts and did not try to visit his son at the mother's home. He stopped all attempts at communication with the boy eight months after the February 2008 incident. The father did e-mail the mother in June 2009 to say that his son was welcome to come back into the father's life if he ever so chose. Later, however, he refused an invitation to attend his son's high school graduation, and he did nothing to acknowledge this milestone in his son's life. The father also made no acknowledgment of an Easter card his son sent him in 2010.

The Second Department noted that a father is not relieved of his child support obligation simply because a child is reluctant to visit with him. See Radin v. Radin, 209 AD2d 396. Instead, the doctrine of constructive emancipation comes into play only if the child refuses to submit to the authority and control of the noncustodial paying parent or, as stated in Matter of Alice C. v. Bernard G.C., 193 AD2d 97, “actively abandons the noncustodial parent by refusing all contact and visitation.” Under the circumstances of the case before it, the court saw no basis for a finding of active abandonment by the child because “the father's own behavior was the parallel and coequal cause of the deterioration in the relationship.” As the father failed to meet his burden of establishing that his son was constructively emancipated, Family Court's decision vacating the child support provisions of the parties' stipulation of settlement was reversed.

Court Interprets
Contradictory Contract Terms in Favor of Student

The Appellate Division, Third Department, has affirmed a ruling requiring a father, in accordance with his separation agreement, to contribute to his child's college tuition despite contradictory terms in the agreement. Hejna v. Reilly , 2011 NY Slip Op 7333 (3d Dept., 10/20/11) (Mercure, J.P., Rose, Malone Jr., Kavanagh and garry, JJ.).

The parties, whose children were born in 1986 and 1988, executed a separation agreement that was incorporated but not merged into the judgment of divorce. It provided that the father would pay one half of the costs of his children's college tuition as measured by the cost of attending a State University of New York (SUNY) school. He further agreed to make those payments “until said child graduates from college assuming that attendance at college takes place during the four years immediately following graduation from high school.” The agreement went on to provide that the father's child-support obligations would terminate when a child turned 22 years old, even if he or she were a full-time student at that time. These provisions were contradictory in that, because of the children's birth dates and their high school graduation dates, neither would be able to finish a four-year degree (absent extraordinary speed in completing the requirements of their degrees) before reaching the age of 22.

When the first son turned 22 shortly before the beginning of his senior year of college, the father stopped making child support and tuition payments for his benefit. The mother moved for an order directing the father, inter alia, to make those payments until the end of the four-year period set out in the agreement. After Supreme Court granted the motion, the father appealed.

After observing that the separation agreement, being incorporated but not merged into the judgment of divorce, “remains a legally binding, independent contract” subject to the ordinary rules of contract interpretation, the Third Department affirmed. Those “ordinary rules” include the tenet that specific contract provisions control over general contract provisions when those terms contradict one another. See Rainbow v. Swisher , 72 NY2d 106 (1988). “Defendant's specific commitment to pay for child support and tuition expenses during the four years following graduation from high school 'until said child graduates from college,'” stated the court, “controls over the more general list of termination events,” including the event of a child attaining of the age of 22. “Furthermore,” the court noted, “both children reached the age of 22 within the four-year period and, thus, defendant's reading of the agreement impermissibly renders his promise to pay college expenses and child support for four years meaningless.” In addition, extrinsic evidence of the parties' intent at the time of contracting compelled the outcome in Supreme Court, the Third Department concluded.

Constructive Abandonment Not Found Where Parent Is Also at Fault

Because a father and son were equally responsibly for the breakdown of their relationship, it could not be said that the son had constructively abandoned his father, and the father's duty to pay child support must continue. In the Matter of Glen L.S. v. Deborah A.S. , 2011 NY Slip Op 8160, *; 2011 N.Y. App. Div. LEXIS 7975 (2d Dept. 11/9/11) (Florio, J.P., Dickerson, Chambers and Cohen, J.J.).

On Dec. 16, 2010, Family Court, Nassau County, granted a father's petition to vacate the child support provisions of the parties' stipulation of settlement after concluding that the parties' child was constructively emancipated. The finding of constructive emancipation was based on the boy's refusal to speak with his father over the telephone or to respond to his text messages following an altercation that occurred between them in February 2008.

The mother appealed, and the Second Department reversed, reinstating the father's support requirement after finding that the father was at least as responsible as his son for the breakdown in communications following the February 2008 incident. Evidence was presented that soon after that altercation, the son had expressed suicidal thoughts, so he started to receive therapy. At that time, the boy, through his mother, asked the father to stay away for a while so that he could sort out his feelings. Thereafter, the father did not try to enforce visitation through the courts and did not try to visit his son at the mother's home. He stopped all attempts at communication with the boy eight months after the February 2008 incident. The father did e-mail the mother in June 2009 to say that his son was welcome to come back into the father's life if he ever so chose. Later, however, he refused an invitation to attend his son's high school graduation, and he did nothing to acknowledge this milestone in his son's life. The father also made no acknowledgment of an Easter card his son sent him in 2010.

The Second Department noted that a father is not relieved of his child support obligation simply because a child is reluctant to visit with him. See Radin v. Radin , 209 AD2d 396. Instead, the doctrine of constructive emancipation comes into play only if the child refuses to submit to the authority and control of the noncustodial paying parent or, as stated in Matter of Alice C. v. Bernard G.C. , 193 AD2d 97, “actively abandons the noncustodial parent by refusing all contact and visitation.” Under the circumstances of the case before it, the court saw no basis for a finding of active abandonment by the child because “the father's own behavior was the parallel and coequal cause of the deterioration in the relationship.” As the father failed to meet his burden of establishing that his son was constructively emancipated, Family Court's decision vacating the child support provisions of the parties' stipulation of settlement was reversed.