Matter of H.M. v B.M.
Annotate this CaseDecided on July 5, 2013
Family Court, Onondaga County
In the Matter of H.M.
B.M.
F-06831-13
Raymond Dague, Esq., for petitioner; Timothy Roulan, Esq., for respondent.
Michael L. Hanuszczak, J.
On June 14, 2013, the attorney for the petitioner filed an Objection to the Decision/Order, filed and entered on May 30, 2013. An Affidavit of Service was filed indicating proper service of the Objection upon the attorney for the respondent. On June 25, 2013, the attorney for the respondent filed a Rebuttal to the Objection. An Affidavit of Service was filed indicating proper service of the Rebuttal upon the attorney for the petitioner. As a part of its determination on the Objection, this Court reviewed the case file and recordings of the support hearing on May 13, 2013 and May 15, 2013.
As background, the petitioner is the eighteen-year-old son (born on August 12, 1994) of the respondent. He requested that an order of child support be entered on his behalf. The respondent argued that the petitioner constructively emancipated himself.
The matter came to trial and the Support Magistrate made the following findings: (1) the respondent adopted the petitioner when he was 10 years old, and petitioner is one of five adopted children in a single-parent home; (2) the petitioner is currently eighteen years old and residing with a non-relative family; (3) the petitioner is attending high school, working part time at a fast food restaurant, and planning to attend college; (4) the petitioner was arrested in November 2011 and pled guilty to the commission of sexual acts on multiple occasions on his younger siblings; (5) the petitioner spent seven months in jail in connection with his conviction and an order of protection was entered prohibiting him from returning to the home of the respondent; the petitioner's criminal acts were completely without justification, and the respondent is justified in having no contact with the petitioner. Based upon those findings, the Support Magistrate concluded that the respondent met her burden of proving that the petitioner has constructively abandoned the respondent and that the respondent has no obligation to pay support to the petitioner. The Support Magistrate dismissed the petition with prejudice and denied the petitioner's request for attorney fees.
The attorney for the petitioner objected to the order of dismissal, making the following arguments: (1) the Support Magistrate did not provide an adequate rationale of why she disregarded the petitioner's proof; (2) the Support Magistrate erred in finding that the respondent met her burden of proving that the petitioner was constructively emancipated; (3) the witness A. O. established that residential placement with a family was the best placement after the respondent was released from jail rather than placement at Armory House, as desired by the [*2]respondent; (4) the testimony shows that the respondent was, to a great extent, absent from her home and duties as a parent; (5) the evidence shows that the respondent abandoned the petitioner and that she is responsible for the breach between parent and child; (6) the petitioner has a part-time job but does not support himself; and (7) the petitioner's request for attorney fees should have been granted, regardless of the outcome of the trial-level proceeding. The attorney for the petitioner also requested an award of attorney fees in connection with the Objection.
In the Rebuttal, the attorney for the respondent makes the following arguments: (1) there is nothing to support the allegation that the Support Magistrate ignored the petitioner's proof; (2) the evidence supports the finding that the petitioner is constructively emancipated; (3) there is no evidence supporting the petitioner's allegation that he was abandoned by the respondent or that she was an inadequate parent; (4) there is no competent evidence that placement with a family was the "best" placement for the petitioner after he was released from jail; (5) the evidence shows that the petitioner rejected the respondent's offer to pay for his placement in a therapeutic residential program after he was released from jail; (6) the respondent is of employable age; and (7) the petitioner does not base his request for attorney fees during the underlying proceeding and during the Objection on any statutory or decisional authority.
It is well settled that the determinations of the Support Magistrate after trial are accorded great deference during the Objection process as the Support Magistrate was in the position of seeing and hearing the witnesses. (Coniglio v. Coniglio, 295 AD2d 509.) In its review of the Objection, this Court finds that the Support Magistrate did not make an error of law or abuse her discretion by dismissing the petition and denying the application for attorney fees.
The evidence overwhelmingly shows that the petitioner, who is of employable age, has voluntarily placed himself out of the care and control of the respondent by means of his criminal acts and his subsequent decisions. (Matter of Roe v. Doe, 29 NY2d 188; Chamberlain v. Chamberlain, 240 AD2d 908.) There was credible testimony that the petitioner had a developed a pattern of insubordinate and violent behavior prior to his arrest for sexual abuse involving his brother and his sister. The evidence also shows that the respondent provided therapeutic psychological intervention to the petitioner.
However, after pleading guilty to several counts of sexual abuse of his siblings in criminal court, the respondent was sentenced to a term of incarceration. A multi-year, stay-away order of protection was also entered against the petitioner directing him to stay away from the respondent and his siblings. Therefore, it is a direct result of the petitioner's own conduct that he is unable to reside with the respondent.
Additionally, there is credible testimony that the petitioner rejected the respondent's wish that he enter a residential treatment program after he was released from jail. Again, it was the petitioner's choice to place himself outside of the control of the respondent. There is no expert testimony that such a placement was contrary to the best interests of the petitioner. Under such circumstances, the respondent is not obligated to provide financial support to the petitioner. (Matter of Commissioner of Social Services v. Jones-Gamble, 227 AD2d 618.)
The evidence does not support the petitioner's contention that the respondent is responsible for, or has contributed to, his current situation. Indeed, the evidence shows that the respondent has been struggling to cope with the petitioner's misbehavior for several years and that she is currently undergoing psychological treatment due, in part, to the shocking sexual [*3]assaults on his siblings .
With respect to counsel fees, Section 438 of the Family Court Act authorizes the court to award counsel fees at any stage of the support proceeding. However where, as here, there is no finding of a willful violation of a prior support order, an award of counsel fees is at the discretion of the court. (Goldstein v. Goldstein, 123 AD2d 739.) Considering the testimony regarding the criminal convictions of the petitioner and his subsequent voluntary decisions subsequent to the convictions, this Court finds that an award of counsel fees is inappropriate.
Accordingly, the petitioner's Objection is denied.
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