Frank A. Kordes, appellant, v. Susan Kordes, respondent. (2010)

Argued-January 4, 2010

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment entered October 4, 1996, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), dated December 18, 2008, as denied his motion for an order determining that the parties' minor child, Ashley, has voluntarily abandoned him and is emancipated from him, and that the defendant has forfeited her right to further child support for that child.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

“It is fundamental public policy in New York that parents are responsible for their children's support until age 21” (Matter of Gold v. Fisher, 59 AD3d 443, 444;  see Family Ct Act § 413;  Matter of Roe v. Doe, 29 N.Y.2d 188, 192-193).   However, pursuant to 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 (Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97, 109;  see Matter of Gold v. Fisher, 59 AD3d at 444).  “The burden of proof as to emancipation is on the party asserting it” (Schneider v. Schneider, 116 A.D.2d 714, 715).

Under the circumstances of this case, the Supreme Court correctly concluded that the father failed to meet his burden of proving that his daughter was constructively emancipated from him (see Matter of Gold v. Fisher, 59 AD3d 443;  Radin v. Radin, 209 A.D.2d 396;  Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97).   The record discloses that the father may have caused the alienation between himself and his daughter, and “a child's reluctance to see a parent is not abandonment, relieving the parent of any support obligation” (Radin v. Radin, 209 A.D.2d at 396;  see also Jaffee v. Jaffee, 202 A.D.2d 264;  Lipsky v. Lipsky, 115 A.D.2d 361).   Accordingly, the court properly denied the father's motion.

SKELOS, J.P., SANTUCCI, DICKERSON and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court