A. L. v R. D.

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[*1] A. L. v R. D. 2015 NY Slip Op 50165(U) Decided on February 26, 2015 Supreme Court, New York County Sattler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 26, 2015
Supreme Court, New York County

A. L., Plaintiff,

against

R. D., Defendant.



350649/06



Plaintiff is represented by

Judith White, Esq. Lee Anav, White & Kim, LLP

156 Fifth Avenue, Suite 303

New York, N.Y. 10010

212 271-0664

Defendant is represented by

Glenn S Goldstein, Esq.

Cohen Goldstein, LLP

850 Third Ave.

New York, N.Y. 10022

212 537-9000
Lori S. Sattler, J.

In this post-judgment matrimonial action, Defendant father (hereinafter "Defendant") moves for a finding that the parties now-16 year old daughter (hereinafter "A.") has been emancipated as that term is defined in the parties' settlement agreement dated March 12, 2010 and that his child support obligation to Plaintiff is therefore terminated. He further asks that Plaintiff be directed to pay a fair and reasonable amount of child support to him and a reasonable portion of their daughter's add-on expenses. Plaintiff mother (hereinafter "Plaintiff") opposes the motion and cross-moves for an order directing that Defendant pay 100% of the add-on expenses as well as counsel fees to her attorney of $50,000, and that he be directed to attend parenting classes and refrain from discussing the pending litigation with A..

The parties' divorce action was commenced on October 17, 2006 but the final Judgment was not entered until July 15, 2010. The parties continued to reside together in the marital residence. Starting in 2008, they began alternating four day weekends alone with A. either in New York or in Southampton, and continued to reside jointly in New York from Tuesday to Thursday each week. That schedule was modified in May of 2009 when the parties started alternating weeks at the residence with A., with the non-resident parent having one dinner or overnight during the week that they were not staying with A..

The parties were ultimately able to agree on shared legal custody and the other issues incident to the divorce. They could not, however, agree on who would have primary physical custody. This issue was therefore the subject of a 16 day trial, conducted initially by the Hon. Rosalyn Richter and, upon her appointment to the Appellate Division, concluded before the Hon. Ellen Gesmer. In her after-trial decision of November 13, 2009 (hereinafter "Access Order"), Judge Gesmer noted that the parties continued to occupy the marital residence. The Court ruled that each of the parties spend alternating weeks with A. in either a continued nesting arrangement in the marital apartment or in separate apartments should they get them. The forensic expert opined that it would be a challenge for A. if she did not reside primarily with her mother and this was the position urged by the Attorney for the Child and the child's therapist. The Access Order sets forth at length the court's reasons for rejecting that position.

After access was decided, all remaining issues were resolved in a Settlement Agreement entered into by the parties on March 12, 2010 (hereinafter "Settlement Agreement") including the provision defining "emancipation" and its impact on child support.

Article V Paragraph 5.1(c) of the Settlement Agreement provides that A. would be deemed emancipated upon:

The child's residence away from the residence of the Wife on a regular basis for more time than set forth in the Access Order, except for temporary residence in connection with summer employment as a summer activity, vacations or college, which are not to be deemed a residence away from the residence of the Wife. Notwithstanding the above, if the child resumes residing with the Wife for the time set forth in the Access Order, such emancipation shall be deemed terminated and nullified.



The parties concur that after following the access schedule for a year and a half, in March of 2011 A. began living primarily with Plaintiff. This continued until March of 2013. Defendant states that A. and her mother had an argument in the Spring of 2013 and as a result Plaintiff threatened to, or did, throw A. out of her house. Thereafter A. stayed exclusively with Defendant for the balance of the school year. During the summer, A. resumed living with both parents but spent more time with Defendant than with Plaintiff. In September, A. transferred to a boarding school in Connecticut for 10th grade. According to Defendant, she spent the school breaks primarily with him during the academic year. At the end of the school year, A. spent 7 nights at Plaintiff's house and 23 nights at Defendant's, at which point the motion was brought. Defendant contends that based upon these facts, Plaintiff should be directed to pay child support to him as well as a fair share of the add on expenses.

Plaintiff opposes the motion and cross-moves to have Defendant pay 100% of A.'s add-on expenses and her own counsel fees. She confirms that after the divorce, A. lived with her from March of 2011 until March of 2013. According to Plaintiff, A. remained at Defendant's house in the Spring of 2013 because she enjoyed the freedom of unsupervised time at his often empty apartment. She states, based upon recent conversations with A., that Defendant has told A. that if she stops having overnight visits with Plaintiff, child support would end and he would have more money to spend on her.

Plaintiff vehemently denies Defendant's contention that her relationship with A. has broken down. According to Plaintiff, she and A. have a warm and close bond. Plaintiff states [*2]that upon her return from boarding school A. spent from June 7 through 13 at Plaintiff's house in Sag Harbor, but has not spent any overnights with her since Defendant filed this motion. Plaintiff states that A. has repeatedly asserted that it is her choice whether to spend overnights at Plaintiff's house and that emancipation would benefit her financially. They meet often for lunch or dinner and spend days shopping or going to the beach but when Plaintiff asks her to stay overnight, she is told that Defendant would have to pay child support if she did. According to Plaintiff, A. has detailed the role she will play in this litigation, referring to Defendant's counsel by name and suggesting that if Plaintiff gave up the right to child support and agreed to pay 25% of the add-on expenses she would resume overnights with her.

Defendant denies discussing the impact of emancipation with A. or telling her that she would benefit financially if he no longer had to pay child support. While Defendant states that he has actively tried to get A. to spend more time with her mother, he also states that he was thrilled when she took his suggestion that she put some distance between herself and Plaintiff and attributes her academic success at boarding school to that fact.

The burden of proving emancipation lies with the one asserting it. Jurgielewicz v. Johnston, 114 AD3d 945, 945-46 (2d Dept. 2014). Here, Defendant contends that A. lived with him for during the spring of 2013 but resumed staying with each of her parents during the summer. He states that after transferring to boarding school A. spent all school breaks with him during the Fall of 2013 and the Spring of 2014. The Access Order provides that A. spends Thanksgiving with him in odd years including 2013, and the mid-winter break in even years, including 2014.

Under the terms of the Settlement Agreement, A. is "emancipated" at the point when she lives with the Wife for some unspecified amount of time less than the court-ordered 50%, and that she does so for a "reasonable period". A. now resides primarily at boarding school. With respect to Defendant's claim that she has spent school breaks at his residences, it is not clear how many nights she would have spent at Plaintiff's house during the same time periods pursuant to the Access Order. Nor is it evident that her return to Defendant's house for those breaks would establish that the change in schedule was for "a reasonable period" warranting the emancipation of this 10th grader. If evidence demonstrates that, as Plaintiff contends, this 16 year old girl is being pressured or bribed into avoiding overnights with Plaintiff until Defendant obtains the financial relief he seeks, a finding that she is thereby emancipated would not be reasonable regardless of duration. Grad v. Roberts, 14 NY2d 70, 75 (1990) ("In every contract there is an implied undertaking on the part of each party that he will not intentionally and purposely do anything to prevent the other party from carrying out the agreement.") A hearing is therefore necessary to determine whether, discounting periods spent at school, A. has lived away from Plaintiff's home for more time than is contemplated in the access schedule, whether she has done so for a period that renders a finding of emancipation reasonable, and whether Defendant has brought about this circumstance by engaging in conduct that breaches his implied undertaking of good faith.

The motion and cross-motion are therefore granted to the extent that a hearing will be conducted to determine whether Defendant is entitled to suspend or terminate child support payments due to the child's emancipation as defined in the Agreement, and if not, whether he should be additionally charged with payment of 100% of A.'s add-on expenses as sought by [*3]Plaintiff as well the attendant relief sought, including counsel fees.

The parties and counsel are directed to appear for a pre-hearing discovery conference on Tuesday March 31, 2015 at 11 a.m. in Part 9, Room 308, 80 Centre Street, New York, NY

This constitutes the Decision and Order of the Court



Dated:New York, NY

February 26, 2015

_______________________

LORI S. SATTLER, J.S.C.



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