SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1029
CA 15-00141
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.
EILEEN MELGAR, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
LUIS MELGAR, DEFENDANT-RESPONDENT.
HOGAN WILLIG, PLLC, AMHERST (MICHAEL J. COLLETTA OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
MATTINGLY CAVAGNARO LLP, BUFFALO (MELISSA A. CAVAGNARO OF COUNSEL),
FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (John F.
O’Donnell, J.), entered June 2, 2014. The order granted that part of
the motion of defendant seeking to terminate child support for his
daughter on the ground of emancipation and otherwise denied the
motion, and denied the cross motion of plaintiff.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion in its entirety
and as modified the order is affirmed without costs, and the matter is
remitted to Supreme Court, Erie County, for a hearing in accordance
with the following memorandum: Defendant moved in this postjudgment
matrimonial proceeding, inter alia, to terminate child support for his
daughter on the ground of emancipation. We conclude that Supreme
Court erred in granting that part of the motion without conducting a
hearing. We therefore modify the order accordingly, and we remit the
matter to Supreme Court for a hearing on that part of the motion (see
generally Ortman v Ortman, 265 AD2d 926, 926-927). Initially, we
reject plaintiff’s contention that the court was without authority to
deem the child emancipated because the child was enrolled in college
full time for the spring 2014 semester. The parties’ Separation and
Property Settlement Agreement, which was incorporated in the judgment
of divorce, provided that child support would terminate if the child
was financially independent and economically self-sufficient, but not
if the child was a full-time college student. At the time of
defendant’s motion, however, the child was not a full-time college
student, and it was therefore proper for the court to consider whether
the child was emancipated.
“It is fundamental public policy in New York that parents are
responsible for their children’s support until age 21” (Matter of Burr
v Fellner, 73 AD3d 1041, 1041; see Family Ct Act § 413 [1] [a]). A
child may become emancipated before that age where “ ‘the child
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CA 15-00141
becomes economically independent through employment and is self-
supporting’ ” (Matter of Cedeno v Knowlton, 98 AD3d 1257, 1257; see
Matter of Smith v Smith, 85 AD3d 1188, 1188). “The fact that a child
may work full time is not determinative, as a child cannot be deemed
economically independent if he or she still relies upon a parent for
significant economic support” (Matter of Drumm v Drumm, 88 AD3d 1110,
1113; see Matter of Thomas B. v Lydia D., 69 AD3d 24, 29-30). The
burden of proof as to emancipation is on the party asserting it (see
Matter of Barlow v Barlow, 112 AD3d 817, 818).
Although defendant submitted evidence in support of his motion
that the child was working full time, he did not submit proof that the
child was economically independent. There was no proof regarding
where she lived or who paid her bills (cf. Cedeno, 98 AD3d at 1257;
Smith, 85 AD3d at 1188), and it was therefore error for the court to
grant that part of the motion without a hearing. Indeed, “[t]he
determination of economic independence necessarily involves a fact-
specific inquiry” (Thomas B., 69 AD3d at 29).
Defendant’s allegations in support of his motion also raise an
issue of fact concerning constructive emancipation. Although the
court did not address that issue in its decision, defendant properly
raises it on appeal as an alternative ground for affirmance (see
Parochial Bus. Sys. v Board of Educ. of City of N.Y., 60 NY2d 539,
545-546). “[U]nder the doctrine of constructive emancipation, a child
of employable age who actively abandons the noncustodial parent by
refusing all contact and visitation may forfeit any entitlement to
support” (Barlow, 112 AD3d at 818; see Burr, 73 AD3d at 1041).
However, “where it is the parent who causes a breakdown in
communication with the child, or has made no serious effort to contact
the child and exercise his or her visitation rights, the child will
not be deemed to have abandoned the parent” (Barlow, 112 AD3d at 818;
see Matter of Gansky v Gansky, 103 AD3d 894, 895; Thomas B., 69 AD3d
at 28). Here, defendant asserted in support of his motion, and
plaintiff did not dispute, that there is no relationship between
defendant and the child, but the cause of the breakdown in
communication has not been established. We therefore conclude that a
hearing should be held on that issue as well.
Finally, we reject plaintiff’s contention that the court abused
its discretion in denying that part of her cross motion seeking
counsel fees. A court must review the financial circumstances of the
parties in determining whether to award counsel fees (see Wilson v
Wilson, 128 AD3d 1326, 1327) but, here, plaintiff failed to include a
statement of her net worth in support of her application therefor (see
22 NYCRR 202.16 [k] [2]; Gass v Gass, 91 AD3d 557, 558; Kremler v
Kremler, 199 AD2d 901, 902-903). Plaintiff may renew her application
for counsel fees and submit the required information after the hearing
on the motion (see Matter of Fischer-Holland v Walker, 12 AD3d 671,
672).
Entered: October 2, 2015 Frances E. Cafarell
Clerk of the Court