HENRY v. HENRY (2000)

In a matrimonial action in which the parties were divorced by judgment entered dated February 21, 1989, the defendant appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Suffolk County (Farneti, J.), dated March 2, 1999, which, inter alia, denied that branch of his cross motion which was, in effect, to declare that the parties' son was emancipated, and granted that branch of the plaintiff's motion which was for leave to enter a judgment against him pursuant to Domestic Relations Law § 244 in the sum of $38,617 for arrears in child support and related expenses.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The defendant contends that pursuant to a provision in the parties' separation agreement, the parties' son was emancipated and, as a result, he was relieved of his obligation to provide the plaintiff with child support for the son.   It is well settled that the burden is upon the party claiming that a child has been emancipated to prove emancipation (see, Matter of Crane v. Crane, 242 A.D.2d 717, 664 N.Y.S.2d 936).   The Supreme Court properly denied that branch of the defendant's cross motion which was, in effect, to declare that the parties' son was emancipated, because he failed to establish that the son's change of residence was intended to be permanent (see, Gittleman v. Gittleman, 81 A.D.2d 632, 438 N.Y.S.2d 130).   In addition, the Supreme Court properly granted that branch of the plaintiff's motion which was for leave to enter a judgment for arrears in child support and related expenses because the defendant failed to move for downward modification or termination of his child support obligation before arrears accrued (see, Matter of Dox v. Tynon, 90 N.Y.2d 166, 659 N.Y.S.2d 231, 681 N.E.2d 398;  Howfield v. Howfield, 250 A.D.2d 573, 671 N.Y.S.2d 988).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.