IN RE: Edward A. JONES

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: Edward A. JONES, Petitioner–Respondent, v. Karen L. JONES, Respondent–Respondent.

418

Decided: April 27, 2018

PRESENT:  WHALEN, P.J., SMITH, PERADOTTO, CARNI, AND DEJOSEPH, JJ. TANYA J. CONLEY, ATTORNEY FOR THE CHILD, APPELLANT. TANYA J. CONLEY, ROCHESTER, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.

MEMORANDUM AND ORDER

The Attorney for the Child (AFC) appeals from an order that granted the petition of petitioner father seeking modification of his child support obligation by relieving him of his obligation to support his daughter, the eldest of the three children of the father and respondent mother.  We agree with the AFC that the evidence at the hearing was insufficient to establish that the father should be relieved of that obligation based upon the mother's conduct.  Visitation with the father was subject to the wishes of the daughter (see generally Hiross v. Hiross, 224 A.D.2d 662, 663, 639 N.Y.S.2d 70 [2d Dept. 1996];  Matter of Wikoff v. Whitney, 179 A.D.2d 924, 926, 578 N.Y.S.2d 698 [3d Dept. 1992] ), and the mother and daughter both testified unequivocally that the daughter refused to have anything to do with the father by her own choice and for her own reasons (see McCloskey v. McCloskey, 111 A.D.3d 1120, 1121–1122, 975 N.Y.S.2d 798 [3d Dept. 2013];  Matter of Crouse v. Crouse, 53 A.D.3d 750, 752, 862 N.Y.S.2d 615 [3d Dept. 2008] ).

While the evidence fails to establish that the mother deliberately interfered with visitation or otherwise contributed to the breakdown in the father-daughter relationship, we conclude that Family Court nevertheless properly relieved the father of his obligation to support the daughter on the ground that the daughter, by her conduct, forfeited her right to support (see Matter of Jurgielewicz v. Johnston, 114 A.D.3d 945, 946–947, 981 N.Y.S.2d 733 [2d Dept. 2014];  Basi v. Basi, 136 A.D.2d 945, 946, 524 N.Y.S.2d 955 [4th Dept. 1988], lv dismissed 72 N.Y.2d 952, 533 N.Y.S.2d 59, 529 N.E.2d 427 [1988] ).  A parent is responsible for the support of his or her child until age 21 (see Family Ct Act § 413[1][a];  Matter of Gold v. Fisher, 59 A.D.3d 443, 444, 873 N.Y.S.2d 139 [2d Dept. 2009] ), but “a child of employable age, who actively abandons the noncustodial parent by refusing all contact and visitation, without cause, may be deemed to have forfeited his or her right to support” (Matter of Saunders v. Aiello, 59 A.D.3d 1090, 1091, 875 N.Y.S.2d 656 [4th Dept. 2009] [internal quotation marks omitted];  see Matter of Roe v. Doe, 29 N.Y.2d 188, 193, 324 N.Y.S.2d 71, 272 N.E.2d 567 [1971] ).  The daughter, who was 17 when the proceeding was commenced and 18 when it was concluded, was of employable age (see Saunders, 59 A.D.3d at 1091, 875 N.Y.S.2d 656;  Basi, 136 A.D.2d at 946–947, 524 N.Y.S.2d 955).  Contrary to the AFC's contention, the record does not support the conclusion that the daughter was justified in refusing all contact with the father based upon his conduct (see Matter of Chamberlin v. Chamberlin, 240 A.D.2d 908, 910, 658 N.Y.S.2d 751 [3d Dept. 1997];  cf. Matter of Barlow v. Barlow, 112 A.D.3d 817, 818, 976 N.Y.S.2d 573 [2d Dept. 2013] ).  The father made consistent efforts to establish a relationship with the daughter by participating in counseling, inviting her to family functions, and giving her cards and gifts, but those efforts were rebuffed (see Jurgielewicz, 114 A.D.3d at 946–947, 981 N.Y.S.2d 733).  Neither the conflicting evidence concerning an incident when the daughter was eight or nine, nor the daughter's vague complaints about the father's personality, is sufficient to establish that the father caused the breakdown of the relationship (see Matter of Rubino v. Morgan, 224 A.D.2d 903, 903, 638 N.Y.S.2d 524 [3d Dept. 1996] ).

The AFC contends for the first time on appeal that a reduction of the father's child support obligation would render the mother and the daughter public charges and therefore failed to preserve her contention for our review (see Matter of Crosby v. Hickey, 289 A.D.2d 1013, 1014, 734 N.Y.S.2d 786 [4th Dept. 2001] ).  In any event, that contention is without merit.

Finally, we reject the AFC's contention that the admission in evidence of petitioner's exhibits 8 and 9 constitutes reversible error.  Rather, “[a]ny error is harmless inasmuch as the court placed minimal, if any, reliance on those [exhibits], and the evidence is otherwise sufficient to support the court's determination” (Matter of Higgins v. Higgins, 128 A.D.3d 1396, 1397, 7 N.Y.S.3d 796 [4th Dept. 2015] ).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: