Matter of Stephen L. v Karole A.

[*1] Matter of Stephen L. v Karole A. 2012 NY Slip Op 50208(U) Decided on February 9, 2012 Family Court, Monroe County Gallaher, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 9, 2012
Family Court, Monroe County

In the Matter of a Proceeding Under Article 4 of the Family Court Act Stephen L., Petitioner

against

Karole A., Respondent



F—01599-00/08G



PETITIONER STEPHEN L., by ANGELO CALLERI, ESQ., Counsel for the petitioner/father at the hearing and on rebuttal

RESPONDENT KAROLE A., by GARY MULDOON, ESQ., Counsel for the respondent/mother on the objection

Patricia E. Gallaher, J.

[FN1] On October 14, 2008, the petitioner/father Stephen L. filed a petition for a modification of two prior child support orders [FN2], seeking to have his 15-year-old son, Nicolas A. (born [*2]November 6, 1992), declared emancipated and his child support obligation eliminated. The first order set basic child support at $335.00 per week, an amount easily paid by the father who admittedly had more than $1.6 million in savings at the time of these child support proceedings, plus other extensive assets. The second order required the father to pay 90% of ancillary expenses while the respondent/mother paid 10% and provided the child's health insurance.

After a long evidentiary hearing, the child was declared emancipated effective November 6, 2008, the child's 16th birthday. This court reverses that determination and reinstates the child support obligation, finding that the child should not have been declared emancipated. Specifically, on the merits, this court finds that the boy was justified in not continuing to visit his father after therapeutic counseling and a course of letter writing between father and son failed to heal their sadly broken relationship. Further, under the case law the boy could not properly have been found self-supporting at the age of only 16. This court would have dismissed the father's petition with prejudice as a matter of law given the boy's age, 15, at the time of filing.

For the reasons set forth below, including the Support Magistrate's lack of jurisdiction to entertain the issue of constructive abandonment—a visitation issue (Family Court Act, § 329[a] and [c]), the relief requested by the mother is granted, including attorney's fees (amount to be determined).

THE ISSUES IN THE BOY'S AND FATHER'S OWN WORDS—TWO LETTERS

The reason the father and son relationship was so broken is best explained by the boy in his own words, when he was only 15, in an undated handwritten letter. It was written by the boy apparently shortly before January 5, 2008, i.e., the date of the father's reply letter. The following is the entire letter from the boy to his father, set forth in the same format as the boy's letter, and with the same spelling, punctuation, etc., as the original:

Dear Dad,

The reasons I'm still mad and uncomfortable with you is because I feel that your [sic]not

honest with me. I don't feel that your [sic] honest about how you have made mistakes like not doing things with me and how you talk bad about my mom. Also, I feel that you never really did

anything with me especially in the summer like we could of went [sic]to the batting cages or played catch, or maybe have a friend over but we never did any of these things. I'm also mad how I always had to do chores on the Saturdays like to clean the table tops and wash the cars and other

stuff. And when you write me letters you sound a lot different than when we were in Dr. B' s

office. In his office you were loud and very intimidating. Also, you were asking me direct

questions all the time and wanting me to answer them right then and there. It was overwhelming. [*3]

Also, I felt anger in your voice when you said that you didn't deserve the way I'm treating you.

I'm 15 years old and you expect me to be the bigger person and you don't like my mom and

that's hard on me, especially when you say little things about her that makes it worse. And I feel

that your [sic] trying to put all this on me with denise [sic—Dad's girlfriend], you tell me that she wonders why I don't come over, well why don't you tell her and stop hiding behind the issues with you and me. You also talk about baseball a lot but when we saw each other you never did and you especially never supported me on baseball and that was hard for me because the one thing I really love you have to ruin it for me in a way. Also, when you always talked about my mom it always made me feel bad because I love her more than anyone and you might not remember this but I do. Also, I remember one Chrismas [sic] I gave you a coupon to Applebee's and you gave it to denise [sic], that made me feel unimportant. Dad we can't just do a do over like your [sic] trying to do[.] I need a sincere apology. And one more more [sic] thing that upset me was when I wanted something you said I needed to ask my mom because you paid child support.

Nick

The following is the father's response to the above letter from his son. The boy routinely, approximately every week or two, received type-written letters from his father after the therapeutic counseling broke down. None of these letters were signed by the father in his own hand-writing. None contained a salutation to the boy in the father's own handwriting. Each letter appears churned out on a computer. Each was sent by certified mail. Each was copied to the boy's therapist. Seventy of these were sent to the boy (all introduced into the record). The letter dated January 5, 2008 and copied, as always, to the therapist, Santo Bentivegna, Ph.D., is typical and particularly useful because it is in direct response to the boy's issues as set forth in the above-quoted letter. The father's cover letter to Dr. Bentivegna indicated this January 5, 2008 letter was his seventh letter to the boy. The cover letter states that the father was anxious to hear from the doctor regarding the doctor's upcoming session with Nick on January 14, 2008, and says about the boy's mother, "Ms. A. see's [sic] me as nothing more then [sic] a meal ticket unfortunately." Again, the father's own words speak more accurately for him than anything the court could write. The punctuation, emphasis in bold, and misspellings are set forth as in the original and the format is recreated below as closely as possible to the actual format of this 1.5 page entirely computer-printed letter from father to son.

01/05/08

Hi Nick,

Nick I have gotten your letter and I am sorry that you are so upset.

I am extremely sorry for the things that are hurting you.

I have apologized in the past for things that I may have done to make you feel this way. Nothing was done intentional [sic].

However, I can see your [sic] still hurt and angry better then [sic] [a] year and a half later. I do not want you to feel this way Nicolas and I am truly bothered that you are hurt. [*4]

As for the direct questions Nick, I can not understand what is bothering you if I do not ask questions.

As for the things you are saying that I have said about your mother.

I have never ever spoken badly to you about your mother.

If you are referring to the letters that I have written to your mother and the courts;

We have discussed this in Dr. Bentivegna['s] office and I thought you understood that those letters were not for you to read. I am sorry if things in the letters hurt you, but they were not meant for your eyes to read.[FN3]

I do believe Nicolas, you and Dr. Bentivegna had spoken about this in detail.

As for the Applebee's gift certificate.

I had to ask Denise to refresh my memory, to remember what we had done with the gift certificate you gave me about five Christmas [sic] ago.

Denise remembers that we went together to Applebee's to have dinner.

I do not understand what you are upset about.

Did you want me to take you instead of Denise, is that what you are upset about.

Nick how can I make this up to you, I do realize we can't do a do over as you would say.

I am trying Nick; we need to work this out.

Nicolas you're telling me your 15 years old and why should you be the bigger person; Your [sic] right Nick;

I have not had much experience with 15 year olds; I would like to try to work this out. I'm hearing you when you say you're upset and hurt.

I do not want you to feel this way.

I am trying to reach out to you Nick, but you need to meet me half way Nick.

Also Nick you did not mention if you got the Christmas Gifts me and Denise had sent you.

We also need to talk about your grades in school Nick, I have spoken with your teachers and your grades are not what they usually are.

When I talked to your Math teacher he said you are failing and your report card has C's and a D in math.

Math was your strongest subject and you were getting B's in your other subjects, what's going on Nick, I am very disappointed.

Again Nick, I do not believe I deserve any of this and I would like to get to the bottom of whatever is bothering you.

This has been going on long enough Nick: (since June of 2006,)

I have also talked to Dr. Bentivegna recently and he would also like to help us get to the root of all the things that are bothering you so you do not have to feel this way.

I especially do not want you to be angry or hurt Nick. [*5]

Write back soon.

Love,

Dad

THE BASES FOR THE FATHER'S MODIFICATION PETITION

The first basis alleged by the father in his modification petition seeking to declare the child emancipated and terminate child support is that the respondent Karole A. (hereinafter "mother") had engaged in a course of conduct whichintentionally alienated the child from his father.

The 14-page petition also alleges, for a second cause of action, "The child, Nicolas A. repeatedly engaged in wrongful behaviors, failed and refuses to engage in the therapeutic counseling and/or to make a genuine effort to engage [in] a positive and appropriate parent-child relationship with Petitioner, his father, with the wrongfully [sic] participation of Respondent [mother]...", [allegations A through Z omitted], and concluded that "as a direct result of the wrongful behavior of the child, the child abrogated his relationship with Petitioner; abrogated his rights; emancipated himself; and forfeited his rights as the same may arise from the parent-child relationship between Petitioner and the said child."

The father, despite his wealth, also requested that he be awarded attorney fees.

PROECEEDINGS BEFORE SUPPORT MAGISTRATE

The parties appeared before Support Magistrate Rao with counsel. The father was represented by Angelo Calleri, Esq. , in both the child support and related custody matters. The mother was represented by Cynthia Snodgrass, Esq., throughout both the support and custody case. After numerous proceedings [FN4], this matter was eventually scheduled for a fact-finding hearing [FN5], which took place on January 11, 2011 and January 21, 2011. There were five witnesses, including the parties, the father's girlfriend Denise, the child's therapist Dr. Santo Bentivegna, and the subject child Nick who was age eighteen by the time he testified. A multitude of documents were [*6]admitted into evidence.

Support Magistrate Rao took Judicial Notice of (1) the pleadings in the support matter, (2) the prior child support orders including a temporary modification of support order dated January 9, 2009 which reduced the father's child support to zero when the child was only 16 and two years before the actual evidentiary hearing, (3) all prior custody orders including the recent decision and report from Referee Julie Gordon, and (4) the exhibits from the custody matter hearing [FN6]. Very significantly, one of Referee Gordon's conclusions on the wilful violation petitions filed by both parents in the custody/visitation litigation was that Dr. Bentivegna's testimony showed that "the breakdown of the counseling between father and son resulted from their inability to communicate with each other and did not result from the purposeful conduct of either father or Nicolas" (July 2, 2010 report, pp 3-4). Family Court Judge Dandrea Ruhlmann confirmed the referee's report and confirmed the Referee's findings (November 5, 2010 Transcript of Decision).

At the conclusion of the hearing before the Support Magistrate regarding emancipation of the child, decision was reserved. Thereafter, despite the prior determination of Family Court Judge Ruhlmann finding as set forth above, the Support Magistrate made a finding and determination essentially in direct conflict with the Family Court Judge's prior determination and placed the blame for the broken father/son relationship entirely on the son's shoulders. On July 8, 2011, Magistrate Rao issued Findings of Fact, and separately an Order Modifying an Order of Support dated July 8, 2011 (entered July 11, 2011). The prior orders were modified, reducing the father's child support obligation to zero, vacating all ancillary support obligations effective November 6, 2008 (the date of the subject child's 16th birthday), allowing a credit towards any arrears for payments received since the date of November 6, 2008, and reserving the request for counsel fees for a subsequent proceeding to be brought by motion. No such motion has been filed to date. This constructive emancipation determination of the Support Magistrate is in substantial conflict with the determination of the Custody Referee as affirmed by Judge Ruhlmann. This unfortunate situation cannot be ignored and perhaps calls for a different way to assign cases so that such disparate results cannot be reached in separate matters handled by different fact-finders.

MOTHER'S OBJECTIONS, FATHER'S REBUTTAL

On August 15, 2011, counsel for the mother filed objections to the Findings of [*7]Fact and the Order Modifying an Order of Support issued by Magistrate Rao. A proper affidavit of service was also filed. On August 29, 2011, rebuttal was received from father's counsel, and on August 30, 2011, counsel for the father submitted a letter correcting certain dates included in the August 29, 2011 filing.

The objections of the mother state, in essence, that the findings of the Support Magistrate are not supported by the evidence at the fact-finding hearing, and that as a matter of law, the Magistrate abused his discretion by making a determination that was against the weight of the evidence. Counsel for the mother requests the findings and order of Magistrate Rao be reversed, that the modification order be vacated, and that the prior support orders be reinstated. She also requests an award of counsel fees.

The rebuttal filed by counsel for the father contained numerous denials of portions of the mother's objection, addresses issues and definitions of dicta and estoppel, and thereafter reiterates verbatim certain portions of the findings of Magistrate Rao. Father's counsel requests the objections be denied, and the decision of Support Magistrate Rao be affirmed.

THIS COURT'S REVIEW

This Court has reviewed the objections and rebuttal, the underlying petition and documentary evidence submitted at the fact-finding hearing, the prior support matters and prior orders, and the related custody petitions and evidence. The Court has also listened to the digital recording of the entire fact-finding hearing, and reviewed the written decisions of the Support Magistrate, as well as Attorney Referee Gordon's written report and the transcript of the confirmation of the Referee's Report by Judge Ruhlmann.

In reviewing objections to a decision of a Support Magistrate, the Court may remand one or more issues of fact to the Support Magistrate; make its own findings of fact and order whether or not an additional hearing is held; or deny the objections altogether. (See Charlene H. v. Charles K., 4 Misc 3d 1011A [Fam Ct, Erie County 2004]). In the constructive emancipation case now at issue, the Support Magistrate Rao wrote "We expressly find, after a painstaking search of the record, that Nicolas' refusal to have any relationship at all with his Father is a voluntary decision made without any reasonable justification at all." This is simply wrong. This Court agrees with Judge Ruhlmann and makes new findings.

On issues of credibility, great deference is given to the fact-finding judicial officer, who is typically in the best position to assess the credibility of the witnesses and the proffered evidence. This practice specifically applies to Support Magistrates in Family Court support proceedings. Niagara County Dept. of Social Servs. o/b/o [*8]Kimmie W. v. Randy M., (206 AD2d 878 [4th Dept, 1994]); Matter of Stacy Heyn v. Timothy Burr, (6 AD3d 781 [3d Dept, 2004]). Further, as a general rule, a Support Magistrate's Findings of Fact should not be reconsidered or other modified, unless they are contrary to the weight of the credible evidence, or are in error, as a matter of law. (See Matter of Weiner v. Weiner, 97 Misc 2d 920 (Monroe Co, 1979). The Magistrate did not indicate he found the child not credible and/or the father credible, so credibility per se will not be viewed as playing a significant part in the Magistrate's decision. Instead, his decision seemed more a matter of weighing the facts, and evaluating them in a way completely contrary to this court's evaluation of the same evidence. In this matter, the Court concludes that the Support Magistrate erred as a matter of both fact and law, and this court will rely on its own assessment of credibility— i.e., and specifically finds the child Nicolas an extremely credible witness. Accordingly, the proper option here is to vacate the findings and order of Support Magistrate Rao, reinstate the prior child support orders, and award counsel fees to mother's counsel as forth more fully below.

The Family Court Judge can consider only the evidence and testimony that was before the Support Magistrate at the time of the fact-finding hearing. Here, there is a voluminous record, as the documents and evidence in the child support fact-finding hearing were supplemented by the evidence submitted at the fact-finding hearing in the custody matter. In this child support proceeding, there were over ten hours of digital recordings to listen to, as well as fourteen separate transcripts and digital records from the fact-finding hearing that took place before Attorney Referee Julie Gordon. This Court listened to the complete digital recordings.

In the father's petition, there were four pages of allegations of "wrongful behaviors" by the 14-and 15-year-old Nicolas himself, regarding the ways that the father believed Nicolas had engaged in conduct detrimental to the father's concept of an appropriate relationship between himself and his son. As of the commencement of the fact-finding hearing in January, 2011, the father had focused virtually exclusively on Nicolas alone, and his allegedly unjustified refusal to have a relationship with his father—except perhaps on the child's own terms.

THE MAGISTRATE'S FINDINGS

There was no testimony regarding an alleged course of conduct of the to alienate the child mother(father's petition, filed October 16, 2008, pp 5-10) . The Support Magistrate's decision made no finding whatsoever regarding the mother alienating the child's affections as alleged in the father's first cause of action. Apparently the Support Magistrate found no merit to the part of the petition contending that the mother actively alienated the child's affections. Therefore, this part of the father's petition can be dismissed without further comment — except to note that it is not reasonable to make [*9]such serious allegations with no evidence to back them up. Nor is it reasonable to cause the mother and her lawyer to prepare to defend against such allegations when one does not have evidence to offer to even make a prima facie case in the first place.

The findings of fact issued by Magistrate Rao set forth with some detail the basis on which he made his decision— i.e., the boy's behavior. Magistrate Rao wrote: "[Nicolas] constructively abandoned parental control and authority, without good cause. Accordingly, the child is deemed legally emancipated and Petitioner's support obligation is suspended (reduced to zero) effective November 6, 2008 (the child's 16th birthday). Under New York case law, a child can be found to have abandoned a non-custodial parent, and to have forfeited his right to support from that parent by refusing all contact and visitation without cause, and in spite of serious efforts by the non-custodial parent to establish or maintain the parent/child relationship (citing Chamberlain v. Chamberlain, 658 NYS2d 751 (3d Dept, 1997)". (Magistrate Rao's Findings of Fact, July 8, 2011, p 1) (Emphasis added by this Court.)

The Magistrate further stated in detail: We expressly find that Nicolas' refusal to have any relationship with his father/petitioner is complete, and upon his own testimony before this Court, virtually irrevocable at this time. We further expressly find, after a painstaking search of the record, that Nicolas' refusal to have any relationship at all with his father is a voluntary decision made without any reasonable justification at all. There is absolutely no record of any neglect or physical, emotional or verbal abuse of the child by the Petitioner. What there is, is a record of a father who may have been fairly rigid in approach, and perhaps even emotionally cool, but in no instance can we find any proofs offered by either party which justify the child's complete abandonment of any relationship with the man. (Magistrate Rao's Findings of Fact, July 8, 2011, p 2.)

LEGAL DISCUSSION

A. SUPPORT MAGISTRATE'S LACK OF JURISDICTION TO DETERMINE CONSTRUCTIVE ABANDONMENT, A VISITATION ISSUE

No one raised the issue of whether the Support Magistrate had jurisdiction to determine whether the father's support obligation could be vacated based on the mother alienating the child so that visitation did not occur or based on the child's own constructive abandonment of the father by refusing without good cause to visit the [*10]father. However, the Court, after reviewing the entire case identified this issue and finds it to be decisive and to require that the mother's objections be granted and the Support Magistrate's Findings and Order vacated in their entirety.

Section 439 of the Family Court Act, entitled "Support magistrates", states in two places that support magistrates shall not hear visitation issues. In subdivision (a) of section 439, the statute says in its relevant part:

Support magistrates shall not be empowered to hear, determine and grant any relief with respect to ...custody, visitation including visitation as a defense . . . which shall be referred to a judge as provided in subdivision (b) or (c) of this section. (Emphasis added.)

Subsection (c) of section 439 of the Family Court Act, provides in full as follows:

The support magistrate, in any proceeding in which issues specified in section four hundred fifty-five oft his act, or issues of custody, visitation, including visitation as a defense, orders of protection or exclusive possession of the home are present or in which paternity is contested on the grounds of equitable estoppel, shall make a temporary order of support and refer the proceeding to a judge. Upon determination of such issue by a judge, the judge may make a final determination of the issue of support, or immediately refer the proceeding to a support magistrate for further proceedings regarding child support or other matters within the authority of the support magistrate. (Emphasis added.)

It is unquestionably clear that the critical issue here upon which the Support Magistrate terminated child support is an issue of visitation, including visitation as a defense. The father raised his lack of visitation as the basis for declaring the child constructively emancipated. Upon recognize this was the issue, the support magistrate should have referred the proceeding to a judge. While it is arguable that he had the authority to vacate the existing support order, it is also arguable that he should not have done that either—but should have simply referred this critical issue to a judge—as an order of support already existed and did not need to be made.At any rate, it is absolutely clear as a matter of statutory law that the support magistrate did not have the authority to hear and determine whether or not the boy could be held to have constructively abandoned the father, or whether the mother could have so alienated the child's affections as to cause an end to visitation. Therefore, the proceedings before the support magistrate were a nullity. Jurisdiction cannot be conferred on a judicial body. Support magistrates determine child support. Family Court Judges determine issues of custody and visitation. Because of the complete lack of jurisdiction, the magistrate's determination must be vacated in its entirety.

Because of the extensive proceedings below, and this court's review of them, [*11]and the possibility that the father may file a new petition for the same relief to be heard by a Family Court Judge, and because this decision may well be appealed, this court will also address the issues on the merits, without regard to what this court finds was the complete lack of jurisdiction of the support magistrate to initially determine the constructive abandonment case.

B. NICOLAS COULD NOT PROPERLY BE HELD

TO HAVE ABANDONED HIS FATHER AT AGE 16

BECAUSE HE WAS NOT LEGALLY EMPLOYABLE AT THAT AGE

This Court is mindful of the statutory authority and case law regarding the support of children in New York State. It is undisputed that Family Court Act §413(1) applies. It provides,

"...the parents of a child under the age of twenty-one years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine."

Case law has been repeatedly held that, absent certain exceptions, a parent is responsible for the support of his or her child until the child reaches age twenty-one. (E.g., Shabazian v. Shabazian, 246 AD2d 688, 689 (3d Dept 1998). The parent who puts forth that his or her child support should be terminated by virtue of emancipation prior to age twenty-one, has the burden of proof on this issue. (E.g., id., at 689.) Thus, the father had the burden of proof here.

Magistrate Rao relied on the Third Department's Chamberlin v. Chamberlin, 240 AD2d 908 (3d Dept, 1997), cited to him by the father's attorney, but not the case law that has developed since 1997. Indeed, the magistrate cited no other case whatsoever in his determination. Chamberlin (id., at 909):



To be sure, a parent has a statutory obligation to support his or her child until such time as the child reaches 21 years of age (see, Family Ct. Act § 413[1][a]). It is well settled, however, that while the duty to support is a continuing one, the child's right to support and the parent's right to custody and services are reciprocal' (Matter of Roe v Doe, 29 NY2d 188, 193...), i.e., in exchange for child support, a parent may impose reasonable regulations upon his or her child (see, id.). To that end, a child of employable age, who actively abandons the noncustodial parent by refusing all contact and visitation, without cause, may be deemed to have forfeited his or her right to support (see generally, Hiross v Hiross, 224 AD2d 662...; Radin v Radin, 209 AD2d 396...; Matter of Alice C. v Bernard G.C., 193 AD2d 97, 109; Cohen v Schnepf, 94 AD2d 783...) (Emphasis added.) [*12]

This court finds that Nicolas cannot be held to have abandoned his father without good cause under the facts, and furthermore, even if his behavior was found to be constructive abandonment the effective date by law could not be his 16th birthday, and at the earliest could have been the end of the school year in which he turned 17.

Pursuant to Chamberlin, the father must prove that his son has (1) abandoned the non-custodial parent, (2) refused all contact and visitation, (3) that the refusal of contact and visitation by the child is without cause, and (4) that the non-custodial parent made serious efforts to establish or maintain the parent/child relationship. However, the Third Department's much more recent Foster v Daigle (25 AD3d 1002 [3d Dept 2006]), reversing a suspension of child support due to abandonment/constructive emancipation, held:

Under established precedent delineating when a child's abandonment of a noncustodial parent can be deemed to constitute constructive emancipation, we must hold, as a matter of law, that the sons, ages 16 and 14 at the time of plaintiff's motion, were not constructively emancipated as they were not "of employable age", a necessary prerequisite to such a finding (see Matter of Ogborn v Hilts, [269 AD2d 679], supra, at 680; Matter of Kershaw v Kershaw, 268 AD2d 829, 830; Matter of Chamberlin v Chamberlin, 240 AD2d 908, 909 [1997]; Hiross v Hiross, 224 AD2d 662, 663 [1996]; compare Matter of Joseph M.M. v Mary Ellen C. M., 227 AD2d 561 [1996], appeal dismissed, lv denied 88 NY2d 1014 [1996]) (emphasis added).

Thus, the Third Department itself cites Chamberlin in support of its finding that 14 and 16-year- olds, e.g., Nicolas in the case at bar, may not be constructively emancipated by abandoning a noncustodial parent.

While the Chamberlin case does not say at what age child support was terminated in that matter, the court noted that the child was 18 and a senior in high school at the time of the hearing, and it can be inferred that child support was terminated effective at a date when the child was 18, and thus clearly of an employable age. Furthermore, the facts regarding constructive abandonment in Chamberlin are easily significantly distinguished from the facts in the case of Nicolas and his father. Constructive abandonment was very clearly established by the facts in Chamberlin. In that case the boy abandoned the father based on only one minor incident which happened when the child was 11, which embarrassed the child, and for which the father apologized and tried unsuccessfully to make amends for 6 years. The case at bar involves many more bad interactions between father and son, and the father appears greatly at fault for the negative reaction of the son to his actions.

The law is clear that Nicolas was not of an employable age at age 16, despite the [*13]Magistrate's finding that at the time Nicolas turned 16 years old, he could have left school and entered the workforce, and therefore was legally employable. The Magistrate's finding of legal employability at age 16 was obviously the reasoning for terminating the father's support obligation as he did on the child's 16th birthday, in November of 2008. However, New York State Education Law § 3205(1) requires children to remain in attendance until the last day of session in the school year in which the minor becomes 16 years of age, to wit, June 2009 in the case at bar. Furthermore, subsection (3) of the same section further gives each school district the power to require a child in the State of New York to attend school until the last day of session in the school year in which the student turns 17. Nicolas was in the Greece Central School District, and this court takes judicial notice that the Greece school district has elected to follow the statute as set forth above.[FN7] Therefore, not only could Nicolas not be legally emancipated by reason of employability upon reaching his 16th birthday since his 16th birthday happened during the school year because he attended a Greece school, he would have been required to attend school until the last day of the school during which he turned 17 years old. He would have turned 17 in November 2009 and thus had to stay in school through June 2010 by law. He would not have been able to drop out of school and be a legally employable age until June 2010.

C. NICOLAS DID NOT ABANDON HIS FATHER WITHOUT GOOD CAUSE—

INDEED, THE FATHER'S OWN BEHAVIOR WAS THE PRIMARY CAUSE OF THE DETERIORATION OF THE FATHER-SON RELATIONSHIP

The case law is clear that if the record demonstrates that the father's own behavior was the primary cause of the deterioration in his relationship with his child(ren), there will be no constructive emancipation. (E.g., Matter of Turnow v Stabile III (84 AD3d 1385 [2d Dept 2011]). This court finds the case at bar is such a case—where the father's own behavior was clearly the primary cause of the deterioration of the father/son relationship.

A review of the various Appellate Departments in New York State reveals a line of cases that consistently set forth that a child's failure to return a parent's phone calls or otherwise contact him or her merely indicates that there may be reluctance on the child's part to see or have contact with the parent, and not that the child had abandoned the parent to the point that the child can be considered constructively emancipated for child support purposes. (See O'Sullivan v. Katz, 81 AD3d 480 (1st Dept 2011), where the Court found that a reluctance to visit is not deemed abandonment; see also Glen L.S. v. Deborah A.S., 89 AD3d 856 (2d Dept 2011), [*14]where the Court determined that a minor of employable age and in full possession of his or her faculties, who without cause abandons the parent's home for the purpose of avoiding parental control, forfeits his or her right to demand support, unless the parent caused the breakdown in communication or has failed to exercise his or her visitation; see also Burr v. Fellner, 73 AD3d 1041 (2d Dept 2010); Foster v. Daigle, 25 AD3d 1002, supra ,where Court determined that the father's letters, cards, gifts, phone calls, offers of help, attendance at activities and offers of joint endeavors were earnest efforts, but the minors were 14 and 16, and could not be constructively emancipated as a matter of law due to their age and lack of employability; Stabley v. Caci-Stabley, 68 AD3d 1682 (4th Dept, 2009) and Saunders v. Aiello, 59 AD3d 1090 (4th Dept, 2009), both cases finding that a failure on the part of a child to respond to a parent's efforts to contact him or her does not rise to the level of constructive abandonment, if diligent and meaningful efforts to establish or maintain contact are not made.)

In disagreeing with Magistrate Rao's findings and conclusions, this Court has paid particular note to the direct testimony, cross-examination, re-direct and re-cross examination of the subject child, because the Magistrate based his findings almost entirely on the child's testimony. However, it was extremely unfortunate that the subject child was subpoenaed to testify in this proceeding (as well as the custody matter). If a father wants to see his son who is reluctant to visit, it is hard to imagine a worse approach than proceeding with extensive, hard-fought litigation between the parents. Indeed, since this particular father is so wealthy, relatively and absolutely speaking, it makes no sense for this father to worry about money expended on child support as opposed to the quality of a life-long relationship with his only child. The value of a father-son relationship is priceless. The value of $335 per week is only $335 per week—a pittance for this wealthy father. The damage done by this litigation and the father's actions with regard to his son may well mean that this father and son will never have a decent relationship. The fact that a man this wealthy would value the child support money more than the father-son relationship is a factor which weighs heavily against him. That he would write that the mother sees him as a "meal ticket" denies his basic responsibility to support the child he fathered with the mother. It is clear that he lacks decent judgment in such basic matters.

This Court realizes that the parents and the father's girlfriend have their own view of the events that occurred, and each has his or her own motive for testifying as he or she did. With regard to Dr. Bentivegna, the child has an ongoing therapeutic relationship with him, and the preservation of that therapeutic relationship seemed foremost in Dr. Bentivegna's testimony. The testimony of the four adult witnesses presented no surprises, as each testified to his or her own view of the prior several years.

Having reviewed this record, this Court finds that while there may not be any [*15]record of any neglect or physical, emotional or verbal abuse in Magistrate Rao's view, this Court sees much to justify Nicolas's reaction to the actions of the father toward him—including considerable emotional harm perpetrated by the father on his son. This is true in the father's dealings in person with the child when they had visits but didn't do things the boy especially liked to do; in the absence of thoughtful gifts for birthdays and Christmas; in the therapeutic sessions in which the father was stern, loud and critical; in the voluminous impersonal, insensitive, lengthy and sometimes critical letters written to the child during the period following the therapeutic sessions, which letters routinely mentioned the fun he was having with his girlfriend Denise and even her child—often doing costly things; and in the father's conduct following the sessions with the child's therapist.

The reactions of the child to his father resulted in Nicolas not seeing or hearing from his father from June, 2006 by the father's choice, through the end of that year. Thereafter the child saw the father in 3 therapeutic conferences with Dr. Bentivegna on June 27, July 9, and July 30, 2007. Regarding each therapeutic session, the child testified about his father's negative reaction to issues raised by the child. Nicolas testified about how he was reduced to tears in each session, that his father "shut him down, started talking loudly, yelling at him" and that his father consistently refused to acknowledge any responsibility for his own conduct and behavior as the father. The father denied ever yelling at his son during these sessions, and Dr Bentivegna characterized the father as not yelling, per se, but speaking loudly, forcefully and with a deep voice. Clearly, Nicolas, as a child understandably felt "yelled at". The therapist testified the boy's perceptions were equally as valid as the father's. It is important to remember that the boy was a boy, the father was an adult—who should have had the mature judgment and insight to be kind, not loud and insistent in therapeutic counseling. He did not have that understanding.

Despite these problems, the child took what steps he could to improve the situation, continuing to try to gain insight and support through an ongoing therapeutic relationship with a counselor. He met regularly with the counselor and eventually set forth, in collaboration with his therapist, 10 conditions under which he wanted to resume a visitation relationship between himself and his father. This court finds all these conditions reasonable though the father refused to agree to 2 of them. Prior to this court's review, Referee Gordon also concluded that the boy's conditions were reasonable, and Judge Ruhlmann confirmed her. Referee Gordon's report stated as follows: . . . the breakdown of the counseling between father and son resulted from their inability to communicate with each other and did not result from purposeful conduct of either father or Nicolas (transcript October 22, 2008, pp.24-27)... . the conditions established by Nicolas were reasonable [*16]conditions of counseling and represented an opportunity to re-establish father's lost relationship with Nicolas...." (See Report of Attorney Referee Julie Gordon, dated July 2, 2010, pp.3 and 4).

Thus, both Referee Gordon and Judge Ruhlmann, as well as this Court, find that the guidelines drawn up by Nicolas in consultation with the therapist as an aide to re-establish a therapeutic and visitation relationship between Nicolas and his father, were reasonable. The therapist found them reasonable. Magistrate Rao had the benefit of Referee Gordon's and Judge Ruhlmann's ruling on this issue, so it is particularly troubling that Magistrate Rao, hearing essentially the same testimony and seeing essentially the same evidence, would reach a different conclusion.

It is also significant that the order dated January 11, 2008 in the visitation litigation between Nicolas's parents contained the following paragraph:

ORDERED, that Nicolas A. shall attend therapeutic contact and counseling with a therapist, presently Dr. Santo Bentivegna until such time as Dr. Bentivegna recommends that such sessions are no longer fruitful. The parties shall cooperate and abide by the recommendations of the child's therapist; and it is further....

This court interprets this paragraph to mean that the father should have accepted the 10 conditions drawn up by the boy in consultation with the therapist to get counseling and visitation re-started, but the father took these conditions to be conditions dictated by the boy and thus not necessary or reasonable for him to accept

The Magistrate stated in his Findings of Fact, that with respect to the guidelines Nicolas drew up with the assistance of Dr. Bentivegna, the father's refusal to accept two of the 10 items was reasonable.[FN8] The father stated that he was not willing to accept the prohibition of discussion of Nicolas's grades, and the prohibition of discussion regarding the father's girlfriend and the girlfriend's daughter. This was unwise and insensitive on the part of the father. The letter from Dr. Bentivegna to the father sets forth that these [*17]were guidelines for commencing contact (actually re-commencing contact) between the child and his father in a therapeutic setting. Nicolas testified that he set the guidelines with the assistance of his therapist, so that he could find a way to keep his father in his life and begin discussions to re-establish an ongoing relationship. The guidelines were not intended to be a permanent set of parameters. The two issues the father refused to accept were to govern within the context of therapeutic sessions. It is extremely common for a child not to want to discuss the new partner of a parent and that partner's children after a divorce, and completely understandable as a starting point. It is also understandable that Nicolas, who was often an honor roll student, would prefer not to have therapeutic sessions turn into opportunities to criticize his bad grades. Again, this is understandable. A troubled relationship with a parent can be one key reason for a child getting bad grades. To dismiss the efforts of Nicolas in attempting to re-start discussions with his father as not good enough is a demonstration of great disrespect and insensitivity to Nicolas.

It is clear from the father's letters, including the one quoted in full above, that he did not understand the negative impact on his son of discussions of his girlfriend and daughter and criticism of the boys grades. Furthermore, it was unrefuted that Nicolas has been on honor or high honor roll for much of his high school career. Discussions of the child's grades seemed irrelevant to the child, as Nicolas expressed during his testimony. The father's statements that the child's grades and schooling were areas the father had a right to discuss with his son, since Nicolas was not doing well, clearly shows how little this father knew about his son's actual life and achievements, and how little he understood about being a father in a family apart.

This Court also does not agree with the Magistrate that the father made reasonable and diligent efforts to repair the broken relationship between his son and himself. The Magistrate made an ambiguous statement that "this emancipation claim by petitioner is viewed [by whom?] as an attempt to use the financial sword of support to coerce some relationship out the son" (Findings of Fact by Support Magistrate Rao, dated July 8, 2011, page 2.) Using litigation as a sword to force a relationship with a child who is not even an actual party to the litigation is surely unreasonable. The father's sending of 70 impersonal, compute-generated letters, by certified mail, which repeatedly discussed the very things the boy did not want to discuss with the father was counter-productive and perhaps even cruel. These letters understandably further harmed the father/son relationship.

Mr. L. could have gone to his son's school and obtained copies of the child's academic record, and praised the boy when he did well. He could have contacted the child's doctors, dentists and other providers to get updates about his son. He could have contacted the child's coaches and obtained the schedules for practices and games, and shown a fatherly interest by attending them, but he didn't do these things. [*18]

Mr. L. never even showed up for scheduled visitation periods since June, 2006, though an order with a specific schedule was in place the entire time. Mr. L., as well as his girlfriend, specifically testified that he did not appear for these visitations, because Nicolas did not return his calls. This seems like a punishment being imposed on the boy for not conforming to the father's expectations. In fact, both the father and Nicolas testified regarding a prior time when the father expressly told Nicolas he was not visiting as a punishment for what the father considered inappropriate behavior on Nicolas's part. Nicolas never refused to go with his father for a period of visitation when his father showed up, because Mr. L. never showed up at the time a visitation was scheduled after June, 2006.

Furthermore, and shockingly, the wealthy Mr. L. did not send cards or gifts of any real, positive significance to Nicolas, and what he sent was never from himself alone. According to Mr.L.'s own testimony the cards and gifts were always from himself, his girlfriend and his girlfriend's daughter. Under the circumstances, this was not wise or sensitive, and certainly did not workif indeed Mr. L.'s goal was to see his son rather than get child support suspended. The only specific gifts testified to by the father as given by him to his son were a CD player and checks that he issued for nominal amounts — some of which were not even cashed according to Mr. L.'s unrefuted testimony. One check introduced into evidence was for only $25.00 for Christmas—a tiny, insulting, hurtful amount for the only son of a wealthy man. Mr. L. even admitted to missing some of his son's birthdays and some Christmas's altogether. The boy testified that once his father sent him a card for his birthday with the child's name misspelled. It is hard to imagine how damaging that would be to a child.

For a great period of time, Mr. L. did not make any gestures or overtures towards Nicolas other than the constant stream of impersonal, certified letters. No handwritten letters or notes. No phone calls, no text messages, no invitations to family events or activities. No attendance at school events. No attendance at games the child was scheduled to participate in. No attendance at practices.

Nicolas testified that he drew up the guidelines so that he and his father could have a place to start having discussions of how to develop a future relationship, not re-hash the past. The guidelines show that Nicolas gave great thought to the process, and also show a depth of insight that the father lacks. The Court concludes Nicolas's conduct was reasonable. Nicolas was a child, with limited means to "fix" the terrible situation he found himself in. The father was the adult, and should have been able to set aside his own petty requirement to be able to discuss his girlfriend and her daughter with his son for the limited time he would be in therapeutic sessions with the child, as well as his requirement that he be able to criticize the child's academic achievements. The father needed to build up good will with the child, not destroy what little was left. [*19]

Despite the testimony of the father that he told Dr. Bentivegna he "would do whatever it takes to get back interventions and visitation with his son", he did not do what it takes. By failing to meet his son's reasonable conditions (composed with the help of the therapist), and by failing to act in any other manner actually encouraging of a relationship, the father failed to act reasonably and diligently, in this Court's view, and even sabotaged the father/son relationship.

While this Court did not see Nicolas testify, the Court did have the benefit of listening to the digital recording which allows the Court to hear the actual words, tone and inflection. Surprisingly, the Court did not hear anger from Nicolas during his testimony. What was displayed was disappointment and anguish over the repeated rejection of the child's efforts to discuss important issues with his father, and ultimately what the child expressed as a complete rejection of himself by his father. Nicolas repeatedly stated his father "shut him down". It is very revealing that the father could ignore this sincere expression by this child. The child stated that he thought he had taken all the steps within his power to re-establish his relationship with his father, and the Court heard the child express a list of what he had tried. Nicolas also expressed that neither his father (nor anyone else) had ever stated that Nicolas had done anything wrong to deserve being treated in the manner he described. Never had the father stated that any of what occurred was Nicolas's fault. These were sincere expressions by Nicolas.

What the Court did not hear after the failure of the 3 therapeutic sessions was any effort by the father, apart from the obviously offensive letters sent to his son by certified mail. That the father felt the need to document his efforts by repeatedly sending letters to his son by certified mail, with copies being sent by certified mail to the child's therapist (thereby creating a paper trail for future litigation), displays a coldly calculated and determined effort by the father to prove' he acted in a manner the father apparently believed was appropriate. This Court disagrees. It didn't work. He should have tried something else, something more thoughtful and responsive to the child's clearly expressed needs and issues.

To Nicolas's credit, he did not express any negative feelings about the withdrawal of support from his father. He never stated that he desired his father to pay support or otherwise provide monies to him. Nicolas's clearly articulated issues with respect to his father were the father's treatment of him, his father's rejection of him, and his father's lack of respect for him. Nicolas even testified that he still receives the letters his father sends, and still opens them. This demonstrates to this Court that Nicolas has not abandoned his father or all hope that they might renew their relationship. Perhaps he is still hopeful that his father will understand and come through for him.

Magistrate Rao stated in his Findings that the child now views it an impossibility to have a relationship with his father, and this was a significant factor for the Magistrate [FN9]. However, this [*20]Court views the child's statement that he "sees no point" in trying to re-establish a relationship with his father as a direct result of the weighty and extended rejection, litigation and acrimony that has sadly been a part of this child's life for many years, not as a refusal to ever have a relationship with his father. The child just sees perhaps that the father is not willing to change. To a child, having been aware of and involved in litigation between his parents, being accused of causing and continuing the rift between father and son (as the father argues here), and being targeted as the basis for why his father should not have to support him, represents a burden a child should not have to bear.

Nonetheless, Nicolas has chosen to focus on the positive elements in his life, has continued on with his studies, achieving success academically, remaining engaged in outside activities, obtaining several jobs (both full-time summer and part-time academic year positions) and making plans for his future that still leave open the possibility of a father/son relationship. Nicolas has not let this protracted litigation impede his growth and development, and he is to be commended for this. Not all children are as resilient as Nicolas has proven to be.

A final factor this court acknowledges involves the timing of the events that allegedly led up to the filing of this petition. The letter from Dr. Bentivegna setting forth the boy's 10 conditions for resuming therapeutic father-son counseling was dated April 16, 2008. Less than two weeks later, on April 28, 2008, the father had already met with his attorney and drafted a petition under the custody docket that included a desire to have his child support obligation terminated, by virtue of having the child declared emancipated. The child was, at the time of the filing, 15 and½ years old. The child was certainly not legally employable, nor had he refused to go with his father for visitation. The father stopped showing up.

For the reasons stated above, this Court finds that the decision of Magistrate Rao is not supported by the weight of the credible evidence and must be vacated and reversed, and further finds that the father remains legally responsible for supporting his son, Nicolas. That support obligation continues to the present time. If there is any chance at reviving this relationship, the father must find a way to take steps to assure his son that he is sincere, and that Nicolas's feelings are valid, whether the father agrees with them or not. The sincere apology the son requested in his letter quoted in full above would be a good place to start.

Dr. Bentivegna and Nicolas both testified that they were willing to re-enter a joint therapeutic relationship with the father, and this Court hopes that is the direction these parties take, and that this protracted litigation ceases. An appeal of this decision, though certainly a legal right of the father, would be another "nail in the coffin" of the father-son relationship.

NOW, therefore, for the reasons set forth above, it is hereby

ADJUDGED AND DECREED that the Support Magistrate had no authority to hold a hearing on the issues regarding visitation and visitation as a defense to child support, i.e., constructive abandonment or alienation of the child by the mother, that said issues should have [*21]been referred to a Family Court Judge to hear and determine them, and that the Support Magistrate's Findings of Fact and Order Modifying Support were made without jurisdiction or legal authority to do so and must be vacated in their entirety; and it is further

ADJUDGED AND DECREED that the petitioner Stephen L. has failed to sustain his burden of proof regarding his cause of action to terminate child support based on his allegations that the subject child constructively emancipated himself, and that he has established no other basis for modification or termination of child support, and

NOW THEREFORE, IT IS

ORDERED that the Objections filed by the respondent Karole A. are granted, and it is further

ORDERED that the prior Findings of Fact and Order Modifying an Order of Support, signed by Support Magistrate Rao dated July 8, 2011 (entered July 11, 2011) are hereby vacated in their entirety, and it is further

ORDERED that the petition for a modification of a prior child support order, filed by the within petitioner Stephen L. on October 14, 2008 is dismissed with prejudice, and it is further

ORDERED that the prior orders of support are reinstated, and it is further

ORDERED that the father shall immediately resume paying child support as and for the support of Nicolas A. (born November 6, 1992) pursuant to the prior orders; arrears shall be calculated by the Child Support Enforcement Unit from November 6, 2008 to present, with any credits applied for monies paid after November 6, 2008 and prior to January 9, 2009 when the temporary order suspending the payment of support was issued, and the Child Support Enforcement Unit shall determine the payment of said arrears pursuant to §18 NYCRR 347.9(c), and give the father credit for any lump sum payment(s) he may choose to make; and it is further

ORDERED, that the mother's request for counsel fees for the necessity of bringing this action is granted, and within thirty (30) days of entry of this order, counsel for the mother shall submit an attorney fee request (which may include an affidavit for attorney's fees from the mother's prior counsel and well as current counsel); counsel for the father shall have thirty (30) days thereafter to respond in writing, and if either party seeks a hearing on the amount of attorney's fees to be awarded, a request for such hearing should be made by either party within 60 days from the entry of this order.

DATED: February 9, 2012ENTER:

[*22]

Hon. Patricia E. Gallaher Footnotes

Footnote 1:Cynthia Snodgrass, Esq., represented the mother at the hearing but was unable to continue to represent the mother due to accepting a new job.

Footnote 2:The basic child support order for $335.00 per week was dated January 16, 2001 (entered July 18, 2001).The second order requiring the father to pay 90% of ancillary expenses was dated January 16, 2008 (entered January 17, 2008).

Footnote 3: Nicolas found the letters sent by his father to his mother. There is no evidence that the mother deliberately showed them to him. There is agreement that they denigrated the mother.

Footnote 4:The father filed a violation petition in the related custody matter on April 28, 2008 under docket number V-01822-00/08E. The mother cross-petitioned in the custody matter on September 3, 2008, alleging a violation under docket V-01822-00/08F.

Footnote 5:Due to the protracted but intrinsically entwined custody proceedings and numerous discovery and motion procedures in the support matter, a great time passed between the filing of the instant petition in October, 2008 and the eventual fact-finding hearing in January, 2011.

Footnote 6: The custody-related hearing took place over the course of fourteen days. Exhibits from the custody trial were voluminous. The petitioner father had over 40 separate exhibits. The mother had 24 exhibits.

Footnote 7: This court had a previous case in which a Greece administrator advised the court that Greece had opted to use the age 17 to determine how long it can require children to attend school. It is also common knowledge.

Footnote 8:The 10 guidelines were 1) no discussion during therapy sessions of the child's mother, 2) no discussion during therapy sessions about mother's family, 3) no chores at father's house once visits resume at his home, 4) no discussions at the therapy sessions about Denise or Chelsae, 5) no discussions at the therapy sessions about the child's grades, 6) no discussions in therapy sessions about a letter written by father stating that he was "punishing" him by not seeing him, 7) a desire to meet with his father at a neutral place, 8) a two hour limit for any visitation that re-commenced, 9) a desire for Nicolas to be the one to initiate contact if the father attended any of the child's baseball games, and 10) no discussions about the past, but rather discussions about the future. These statements are taken from a letter dated April 16, 2008 sent by Dr. Bentivegna to the father following a session Nicolas had with his therapist.

Footnote 9:The child was 15 ½ years old when this petition was filed, and just past his 18th birthday and a senior in high school when he testified in January, 2011.