Decided: July 30, 2009

Justice Jeffrey S. Brown

ORDER

Defendant moves by order to show cause, inter alia, for the following relief: 1) enforcing plaintiff's obligations pursuant to the parties' August 2001 Settlement Agreement including an order reaffirming and mandating his requisite payments of child support and their children's college tuition in the future; 2) directing that the plaintiff pay for certain college expenses; 3) awarding child support arrears; 4) directing plaintiff to deposit into an escrow account an amount sufficient to cover his future child support obligations and tuition and college-related expenses for their three children or, in the alternative, issuing an income execution order; 5) counsel fees.

Plaintiff opposes the motion in part. He consents to paying the past-due balance at the University of Maryland in the amount of $1,662.42 representing tuition and/or costs incurred by the parties' daughter, ____________.

The parties were married in 1985, and three children were born of this union. In or about August 2001, the parties entered into a settlement agreement resolving and providing for, among other things, child support and maintenance. On or about December 21, 2001 a Judgment of Divorce was entered in the Office of the Nassau County Clerk dissolving the marriage. The settlement agreement was incorporated but not merged into the Judgment of Divorce.

At issue is whether the parties' daughter __________, age twenty (20), is deemed emancipated and whether plaintiff is obligated to pay her college tuition and costs as well as child support in relation to ____________ as of January 2009.

The following facts are undisputed. As an adolescent living with the defendant, _____began exhibiting behavioral problems. As a result, the parties enrolled her in two separate boarding schools, one in Oakley, Utah. Both programs specialized in dealing with behavioral issues. In June 2006, ____________returned home and attended her senior year of high school locally. She continued with her aberrant behavior by fraternizing with questionable people and openly using drugs and alcohol. On June 5, 2007, ____________, then 17 years old, was arrested for criminal possession of a controlled substance, criminal possession of a forged instrument, and unlawful possession of marijuana. Ultimately, ____________ pled guilty to disorderly conduct, a violation of the Penal Code, and was sentenced to a conditional discharge and a $250.00 fine. ____________was suspended from her graduation exercises but thereafter was allowed to participate.

In September, 2007, ___________ started attending college at the University of Maryland. Due to excessive drug and alcohol use, she received credit only in one course that first semester, with a cumulative grade point average of 0.7. In or about December 2007, ____________ was apprehended in Maryland for suspicion of cocaine possession. She was released and given a summons to appear in court. As a result of her arrest and her academic problems, __________ was asked to leave the University of Maryland.

Upon leaving, she resided with various friends for approximately six weeks. Plaintiff attempted to enroll ____________ in a drug rehabilitation program. These attempts failed because ___________ did not have a place to live in order to attend an outpatient treatment program. Apparently, living with either party was not an option. Plaintiff then arranged for _________ to go to Florida to live with her maternal grandmother. She lived with her for approximately one week until ___________ used an inhalant to get high, necessitating emergency medical care. _________ then went to live with her paternal grandparents, also in Florida. She remained with them for three weeks until plaintiff arranged and paid for Jessica to return to New York.

In February, 2008, plaintiff found an apartment and a job for ____________. He co-signed for the apartment and paid a two month deposit and the first month's rent. ____________ became self-supporting for the remainder of 2008.

In the fall of 2008, ___________ decided to return to school starting the following semester. Her intention was to attend Nassau Community College and live in an apartment close to the school. In dispute is whether plaintiff is obligated to pay for her attendance at Nassau Community College and child support under the terms of the settlement agreement.

Defendant argues that over the past two years plaintiff has failed to properly pay the full amount of _____________'s college tuition and costs as well as child support as of January 2009. Defendant argues that ___________ is not emancipated, is a full-time matriculated student attending Nassau Community College and is residing in off-campus housing with her primary and legal residence at defendant's residence. Defendant asserts that while ___________ was deemed emancipated per the terms of the agreement for the period of January through December 2008 (as she was no longer attending the University of Maryland), due to her enrollment as a full-time matriculated student at Nassau Community College as of January 2009, her status has reverted to unemancipated for which support is required on her behalf. Thus, plaintiff's support obligations will continue until __________'s twenty-third birthday so long as she is enrolled as a full-time student at college. Defendant additionally argues that since __________ is living in off-campus housing away from her residence, this living situation does not constitute an emancipation.

In opposition, plaintiff argues that _________ has not resided with defendant since leaving the University of Maryland in 2007, that she did not participate in a continuous course of study, and that she had been self-supporting. Therefore, under the terms of the agreement, ______ is emancipated.

Plaintiff supports ___________'s decision to attend Nassau Community college and has indicated that he will voluntarily contribute half of the cost of tuition. He states that how the balance is paid, whether by defendant or __________, is entirely their decision. Nevertheless, he disputes that he is mandated to pay 100 percent for tuition, room, board, etc. pursuant to the agreement.

Plaintiff asserts that due to the "permanent residence" emancipation event, his obligation to pay child support terminated, which would include college education expenses. ________'s current living situation of renting an apartment close to Nassau Community College is not comparable to the normal college situation considered in the agreement. Plaintiff argues that living in an $800.00 per month apartment and "doing grocery shopping at WalMart" while attending a community college within a few miles of the child's purported permanent residence, cannot be said to fall within the specified college education expenses. The current living situation would exceed the cost of attending SUNY Stony Brook and living on campus with a regular meal plan.

Additionally, plaintiff avers that his obligation is conditioned upon the child remaining a full-time student, on a normally continuous basis. This condition has not been met as evidence by _________'s hiatus from school for an entire year.

Finally, plaintiff argues that ________ has been emancipated under the doctrine of constructive emancipation. Relying on Roe v. Doe, 29 NY 2d 188, plaintiff states that _________ refused to abide by his reasonable disciplinary decisions, thus, forfeited the right to child support. He reasons that _______'s right to support and his right to custody are reciprocal and that he may impose reasonable regulations. He states that he has the right, in the absence of caprice, misconduct or neglect, to require that his daughter conform to his reasonable demands. Therefore, where, as here, she abandons her home, she forfeits her right to support. This voluntary abandonment constitutes constructive emancipation.

In reply, defendant contends that plaintiff's claim of constructive emancipation is without merit as it is not provided for in the agreement. She states that the terms are clearly defined and no emancipation event is triggered at this time. Also, plaintiff cannot add terms to the agreement just because he wants to avoid his support obligations. She distinguishes the Roe case by asserting that plaintiff was effectively responsible for _____'s prior emancipation by, inter alia, finding her a full-time job and an apartment during the period of February 2008 through December 2008.

Defendant additionally argues that under New York State law, parents are liable for the support of their children under the age of 21 years and this obligation is separate and distinct from the parties' obligation under their stipulation.

Defendant states that plaintiff's argument that the permanent residence emancipation event was triggered by ___________'s residence in an apartment close to Nassau Community College is without merit. There is no case law to support plaintiff's assertion that an apartment near a local community college cannot be deemed a residence at college or that _______'s current living situation is not comparable to the normal college living situation considered in the agreement.

Upon the foregoing, the decision of the court is as follows:

The terms of a stipulation of settlement agreement "incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties" (Matter of Gravlin v. Ruppert, 98 NY2d 1). Further, "a matrimonial settlement is a contract subject to principles of contract interpretation… and a court should interpret the contract in accordance with its plain and ordinary meaning" (Herzfeld v. Herzfeld, 50 AD3d 851, quoting Edwards v. Poulmentis, 307 AD2d 1051, 1052). Where a matrimonial settlement "is clear and unambiguous on its face, the parties' intent must be construed from the four corners of the agreement, and not from extrinsic evidence" (Herzfeld v. Herzfeld, 50 AD3d 851, 851-852; Colucci v. Colucci, 2008 NY Slip Op 6793, 2 [2nd Dept. 2008]).

Article I of the parties' Stipulation Agreement entitled "College Education" states in pertinent part:

" 1. The Husband agrees to pay and provide for the college education expenses of each of the Children… to include… room, board, tuition… ."

"5. The obligation of the Husband, as hereinabove provided, shall continue until a child shall complete his or her college education, provided only that he or she shall pursue the same, as a full-time student, on a normally continuous basis."

New York cases are in agreement that liability for college expenses may not be imposed upon a minor's parent or parents in the absence of an agreement or special circumstances (Kaplan v. Wallshein, 57 AD2d 828; Foster-Freed: 2 Law and the Family, §23:11, 1982 Cumulative Supp, p 232). The factors bearing upon a determination of "special circumstances" include: " 1) the educational background of the parents; (2) the child's academic ability; and (3) the father's financial ability to provide the necessary funds" (Kaplan v. Wallshein, id. at 829; see, also, Gamble v. Gamble, 71 AD2d 649).

The court finds that plaintiff has been relieved of his obligation to pay 100 percent of ___________'s college tuition and costs at Nassau Community College or elsewhere. It is undisputed that _______ did not attend college for one year due to her drug and alcohol problem, which resulted in a poor academic grade point average. However admirable, returning to college after a one year hiatus does not mandate plaintiff, under the terms of the agreement, to assume the costs of such attendance. Additionally, there has been no showing of special circumstances to mandate plaintiff to pay college expenses. Whatever contributions he makes toward's __________'s education is deemed voluntary.

Article J of the parties' Stipulation Agreement entitled "Emancipation Event" states in pertinent part:

"1. With respect to a child, an emancipation event shall occur or be deemed to have occurred upon the earliest happening of any of the following:

(a) Reaching the age of twenty-one years or the completion of four (or, if the program requires it, five) academic years of college education, whichever last occurs… .

(d) Permanent residence away from the residence of the Wife. A residence at boarding school, camp or college is not to be deemed a residence away from the residence of the Wife and hence such a residence at boarding school, camp or college is not an emancipation event… .

(f) Engaging in full-time employment upon and after the attaining by a child of eighteen years of age, except and provided that (1) engaging by a child in partial employment shall not be deemed an emancipation event; and (2) engaging by a child in full-time employment as part of a child's normal college curriculum or during any period that a child is either on vacation or not required to be at college shall not be deemed an emancipation event. Such an emancipation event shall be deemed terminated and nullified upon cessation by a child for any reason from full-time employment, and the period, if any, from such termination until the soonest of any other emancipation event shall, for all purposes under this agreement, be deemed a period prior to the occurrence of an emancipation event… ."

The court finds that _________was deemed emancipated per the terms of the parties' stipulation agreement for the period from January through December 2008 as she was employed full-time and was no longer enrolled as a full-time college student during that period. However, the court finds that due to her enrollment as a full-time matriculated student at Nassau Community College as of January 2009, her status has reverted to an unemancipated status for which child support is required.

A parent's obligation to support his or her children "in accordance with their needs and his [or her] means" (Matter of Kummer, 93 AD2d 135, 185; see also, Sassano v. Sassano, 143 AD2d 893) is codified by Family Court Act §413 (1) (a), which provides that "the parents of a child under the age of twenty-one years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine".

The Court of Appeals held in Matter of Boden v. Boden (42 NY2d 210, 212): "A husband and wife, in entering into a separation agreement, may include in that agreement provisions pertaining to the support of the children of their marriage. The terms, like any other contract clauses, are binding on the parties to the agreement. The child, on the other hand, is not bound by the terms of the agreement and an action may be commenced against the father for child support despite the existence of the agreement." (See also, Crimmins v. Crimmins, 192 Misc. 2d 290, 292-293)

In Matter of Brescia v. Fitts (56 NY2d 132), the Court of Appeals further distinguished the obligation to support one's children from the contractual terms of a separation agreement when it determined the "child's right to receive adequate support" cannot be defeated by the existence of a separation agreement. In the case at bar, even though the parties agreed that at one point Jessica was not entitled to receive child support under their agreement, when her circumstances changed in that she could not adequately support herself, and was still under the age of 21 years, the plaintiff is again obligated to support her despite the termination of the support obligation under their agreement.

In Matter of Alice C. v. Bernard G.C. (193 AD2d 97, 105), it was recognized that: "Despite the fact that parents have a continuing obligation to support their children until they reach the age of 21 years, it is beyond cavil that emancipation of the child suspends the parent's support obligation. Children are emancipated if they become economically independent of their parents through employment, entry into military service, or marriage, and may also be deemed constructively emancipated if, without cause, they withdraw from parental control and supervision" (emphasis added).

"The key word articulated by the Court is 'suspends.' Thus, while during a period of emancipation the parents' support obligation for the child is suspended, once that period of emancipation ends the parents' support obligation is reinstated" (Crimmins v. Crimmins, 192 Misc. 2d 290, 293-294).

The court rejects plaintiff's argument that __________ was constructively emancipated. The proponent of the defense of constructive emancipation has the burden of proof. (See Shabazian v. Shabazian, 246 AD2d 688, 689; Holscher v. Holscher, 4 AD3d 629). Although Matter of Roe v. Doe (29 NY2d 188, supra) created the doctrine of constructive emancipation and involved disobedient children who withdrew from parental control without cause, an additional line of cases has developed which expands the doctrine to encompass a child of employable age who actively abandons the non-custodial parent by refusing all contact and visitation (Alice C. v. Bernard G. C., id. at 109). Here, the plaintiff has failed to demonstrate that _________ voluntarily abandoned the relationship by refusing all contact or visitation, without cause (See Matter of Alice C., v. Bernard G.C., supra; P.S.G. v. J.E.F., 239 N.Y.L.J. 82 (N.Y. Fam. Ct. 2008). The undisputed facts show that despite her drug and alcohol abuse, ________ abided by the regulations imposed by plaintiff and continued contact and visitation. Moreover, plaintiff facilitated her emancipation in that he secured her employment and initially funded and co-signed her apartment.

The court further finds that __________'s current living arrangement in an apartment near her college does not trigger an emancipation event. Living in an apartment close to school does not serve to establish a permanent residence away from the residence of the defendant/wife within the meaning of the agreement. The plain language of the agreement does not set a radius clause from the defendant's residence in which the child must live nor does it differentiate between on-and off-campus housing. Additionally, the agreement does not specify what occurs when the school does not offer housing for its students. Since _______is enrolled at a college which does not provide housing for its students, her permanent residence is deemed to be that of the defendant's.

This court finds that the plaintiff's obligation to pay child support pursuant to the parties' stipulation of settlement agreement was temporarily suspended by the acts of emancipation during the period of February 2008 through December 2008. Thus, _________'s status has reverted to an unemancipated status for which child support is required (Family Court Act §413[1][a]).

Accordingly, it is

ORDERED, that a money judgment be entered against the plaintiff in favor of the defendant in the sum of $680.67, plus any additional arrears incurred as of the date of this order, with interest from the date said payments were due; and it is further

ORDERED, that plaintiff is to pay the past-due balance at the University of Maryland in the amount of $1,662.42 representing tuition and/or costs incurred by the parties' daughter, __________, within 30 days of this order; and it is further

ORDERED, that the plaintiff is to pay defendant's counsel fees in the amount of $3,500.00, pursuant to DRL §237 and 238, for bringing this application. The plaintiff shall pay said sum directly to the defendant within sixty (60) days of the date of this order. In the event he fails to timely pay said award, the plaintiff may enter a money judgment in the sum of $3,500.00.

This constitutes the decision and order of this Court. All applications not specifically addressed herein are denied.