[*1] ILM v RM 2005 NY Slip Op 51851(U) [9 Misc 3d 1129(A)] Decided on November 16, 2005 Supreme Court, Nassau County Falanga, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2005
Supreme Court, Nassau County

ILM, Plaintiff,

against

RM, Defendant.



91-28XXX

Anthony J. Falanga, J.

This is a motion by the defendant for an order awarding him custody of the parties' sons and terminating his obligation to pay child support to the plaintiff. The plaintiff cross moves for an order pursuant to DRL 244 and 244-a awarding her a money judgment for child support arrears, together with interest from September 1, 2005. She also seeks an award of counsel fees pursuant to DRL 237 (b) and 238.

The parties were divorced pursuant to a judgment dated November 25, 1991. Pursuant to their separation agreement dated July 6, 1990, which was incorporated and did not merge in the judgment, the parties agreed to share joint custody of their twin sons, J and A, born June 11, 1987. They further agreed that the twins would reside with the plaintiff and the defendant would pay child support to the plaintiff until the children were emancipated. The agreement states at Article XII (3) that a child shall be deemed to have become emancipated upon permanent residence away from the residence of the plaintiff. The agreement further provides that a residence at a boarding school, camp or college is not to be deemed a residence away from the residence of the plaintiff sufficient to constitute emancipation.

On June 18, 1997, the parties executed a supplemental agreement which states that the parties shall "be true joint custodial parents with equal input into all major decisions," including the "schedule of the children's residency with each parent." In the event, the parties are unable to agree on any "major joint custodial issue," mediation is a prerequisite to judicial intervention. In addition to the $36,000.00 annual child support he is required to pay pursuant to the July 6, 1990 separation agreement, the supplemental agreement requires that the defendant pay additional child support of $36,000.00 a year to the plaintiff, "until the children reach twenty-one years of age ... for so long as they 'reside with' the mother (residence at camp, school, or college shall not be a determination that the children are not residing with the mother), or unless otherwise emancipated." Once either child commences attendance at college and is "not residing at the wife's residence during such attendance, and provided the father is paying all college costs, the direct child support payments to the mother for that child shall be only in the sum of $1500.00 per month until such child is otherwise emancipated." [*2]

In support of the portion of his application seeking an order terminating his obligation to pay direct child support to the plaintiff, the defendant alleges that the children have become emancipated under the terms of the separation agreement in that they have resided at his home in Old Westbury since the summer of 2004 and have established a permanent residence away from the residence of the plaintiff. As evidence of the children's permanent residency away from the residence of the plaintiff, the defendant alleges that in the summer of 2004, the children moved most, if not all, of their personal clothing, belongings and effects to his home. He also states that he pays all the children's expenses.

The plaintiff denies that the children have established a permanent residence away from her home. In opposition to the defendant's application, she states as follows: during the summer of 2004, the children alternated living between both parties' homes, spending an average of two out of every three weekends at her home; throughout 2004, the children spent half of all school and Jewish holidays with her; during the summer of 2005, the children spent weekdays at the home of the defendant and weekends at her home; commencing September 2005, the children attended a preparatory school in Massachusetts, instead of college, and spent their first recess period of Columbus Day weekend first, at the Mohegan Sun casino, and then one evening at the home of each parent; Alexander's driver's license issued on July 24, 2005 lists her residence as his address; and Jonathan opened a new bank account at North Fork Bank on July 16, 2005, listing her post office box in Great Neck as his address.

It is important to note that the defendant is not alleging that the children's alleged change of residence, from plaintiff's home to his home, is an unanticipated substantial change of circumstances entitling him to a modification of his obligation to pay child support (see, e.g, Miller McMillian v Miller, 15 AD3d 814). He has elected not to pursue such remedy which would require the submission of an affidavit of net worth pursuant to 22 NYCRR 202.16(k), and seeks only to enforce the provisions of the parties' separation agreement and supplemental agreement relating to the termination of direct child support upon emancipation.

A separation agreement is a binding contract that must be enforced according to its terms (see, Boden v Boden, 42 NY2d 210). Here, the separation agreement dated July 6, 1990 obligates the defendant to pay child support of $36,000.00 per year to the plaintiff unless he establishes that the parties' son's have become emancipated by virtue of their "permanent residence away from plaintiff's residence," while the supplemental agreement obligates him to pay additional child support of $36,000.00 a year "as long as the children are living with the plaintiff."

Although "permanent residence" away from the residence of a parent receiving child support is commonly utilized in separation agreements to define an emancipation event and trigger the termination of child support, the term "permanent residence" lacks a well settled legal definition, particularly where a separation agreement contemplates joint and or shared parenting.

The law is axiomatic that a person may have more than one residence, but only one [*3]domicile ( see, In re Newcomb's Estate, 197 NY 238). " Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile. The existing domicile, whether of origin or selection, continues until a new one is acquired and the burden of proof rests upon the party who alleges a change. The question is one of fact rather than law, and it frequently depends upon a variety of circumstances, which differ as widely as the peculiarities of individuals. ...Residence without intention, or intention without residence is of no avail. Mere change of residence although continued for a long time does not effect a change of domicile, while a change of residence even for a short time with the intention in good faith to change the domicile, has that effect. ...The subject is under the absolute control of every person of full age and sound mind... " (In re Newcomb's Estate, supra).

Once the parties' sons attained the age of eighteen on June 11, 2005, they could no longer be the subject of an order of custody (see, DRL 2; Lazaro v Lazaro, 227 AD2d 402; Belsky v Belsky, 172 AD2d 576). They became legally able to decide where they wanted to live and with whom; to choose a domicile as well as one or more residences.

The July 6, 1990 separation agreement herein does not define the phrase "permanent residence away from the mother's residence," which pursuant to said agreement, constitutes an emancipation event which terminates all direct child support payable by the defendant to the plaintiff. The supplemental agreement does not define the term "living with the mother" which is a predicate to the payment of additional child support. Neither agreement in issue employs the term "domicile" and the law is clear, that while the parties' sons may have only one domicile, they may have more than one residence, and may "live with" one or both parents. Whether the parties' children are "living with" the plaintiff and or whether they are "permanently residing away from her residence" are questions of fact that cannot be determined without a hearing, at which the defendant shall bear the burden of proof (see, Henry v Henry, 272 AD2d 520; Gittleman v Gittleman, 81 AD2d 632).

Based upon all of the foregoing, the motions are decided as follows:

The portion of the defendant's application for an order awarding him custody of the parties' sons is denied on the ground that the children attained the age of eighteen prior to the service of the instant application, precluding this Court from entertaining the application.

The determination of the portion of the defendant's application seeking an order terminating his obligation to pay direct child support to the plaintiff, as well as plaintiff's cross motion for a money judgment for child support arrears and counsel fees, require an evidentiary hearing.

The proceeding is hereby calendared for a pre-hearing settlement conference on January 5, 2006 at 9:30a.m. Depositions of the parties and their sons shall be deemed waived if [*4]not completed prior to January 5, 2006, unless the date for completion of same is extended by the Court, on the request of either or both parties, prior to January 5, 2006.

This constitutes the decision and order of the Court.

E N T E R:

_________________________

Anthony J. Falanga, Justice

Supreme Court, Nassau County

Dated: November 16, 2005

Mineola, NY



Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.