Will my son become emancipated once he joins the military?
Full Question:
Answer:
In order to become emancipated, the minor must typically live independently and be self-supporting. Often, entering active military service supports a finding of emancipation when the child is self-supporting and financially independent of his parents. The petition is filed in the state where the child resides. New York does not have an emancipation statute, it is a matter for the court to decide based on the facts and circumstances in each case. If the divorce decree specifies payment is to be made until the child is emancipated, a court may determine that enrolment in the military ends the support obligation.
ZUCKERMAN v. ZUCKERMAN, 154 A.D.2d 666 [2d Dept 1989]
546 N.Y.S.2d 666
RICHARD ZUCKERMAN, Respondent, v. PHYLLIS ZUCKERMAN, Appellant.
Appellate Division of the Supreme Court of New York, Second Department.
October 30, 1989
Appeal from the Family Court, Westchester County (Barone, J.).
Ordered that the order is affirmed, without costs or
disbursements.
Richard Zuckerman and the appellant Phyllis Zuckerman were
married on December 15, 1968. On December 29, 1984, the parties
entered into a written stipulation under which the father
undertook to pay child support for each of the two children of
the marriage until such time as each child attained 21 years of
age, died, married, or became emancipated.
By judgment dated March 19, 1985 the parties were divorced. The
stipulation was not merged in the divorce judgment, but survived
and was incorporated in the divorce judgment. The twelfth
decretal paragraph of the judgment provided, in pertinent part,
that "the [Supreme] Court retains jurisdiction of the matter,
concurrently with the Family Court, for the purpose of specifically enforcing such provisions
of that Stipulation as are capable of specific enforcement".
On June 29, 1988, the parties' 17-year-old son Neal entered the
United States Military Academy at West Point (hereinafter West
Point) as a cadet member of the class of 1992. He had the consent
of both parents. The father paid child support for Neal through
June 1988 and then terminated the payments on the ground that
Neal became emancipated when he entered West Point. However, the
father continued to pay to the mother maintenance and child
support for the other child.
On August 5, 1988, the mother's attorney, as an officer of the
court pursuant to CPLR 5241, served the father with an income
execution for support enforcement (hereinafter income execution),
alleging that the father had failed to pay child support for Neal
for the month of July 1988. By petition filed on August 16, 1988,
the father, alleging "mistake of fact" as provided for under CPLR
5241 (e), sought relief in the Family Court correcting the
income execution. The father served the mother's attorney with a copy of
the petition on August 29, 1988, but he never served a copy of
the petition on the mother. The mother then moved to dismiss the
petition, asserting that no mistake of fact existed.
The Hearing Examiner denied the mother's motion to dismiss the
petition, concluding that Neal's entry into West Point
constituted emancipation. The Hearing Examiner terminated the
father's obligation to pay child support for Neal, and vacated
the income execution.
We find that the Family Court properly denied the mother's
objections to the Hearing Examiner's ruling.
The mother argues that because the petition was served on her
attorney and not on her individually, the father failed to comply
with CPLR 5241 (e). We disagree. CPLR 5241 (e)
provides that an application to "correct" an income execution shall be by
petition on notice to the creditor. This is clearly a due process
requirement to ensure that the notice which is given is
reasonably calculated, under all the circumstances, to apprise
the creditor (here, the mother) of the pendency of the petition
and to afford the creditor an opportunity to contest the alleged
"mistake of fact" (see, Mullane v Central Hanover Trust Co.,
339 U.S. 306). At bar, the income execution was served on the
father by the mother's attorney. Serving the petition on her
attorney was proper and complied with the due process
underpinnings of CPLR 5241 (e).
The mother's contention that the petition was not timely is
also without merit. CPLR 5241 (e) provides, in pertinent part,
that where the income execution has been issued by an attorney as
officer of the court, "the debtor may assert a mistake of fact
within fifteen days from service of a copy thereof by application
* * * to the family court". The father in this case was served
with the income execution on August 5, 1988. He filed his
application with the Family Court on August 16, 1988, well within
the 15-day allowable time period. Although the mother's attorney
was not served until August 29, 1988, the mother was not
prejudiced by the brief delay in service.
We also find that the parties' son became emancipated when he
entered West Point. "Emancipation has been defined as the
renunciation of legal duties by a parent and the surrender of
parental rights to a child" (Gittleman v Gittleman, 81 A.D.2d 632,
633; see also, Matter of Bates v Bates, 62 Misc.2d 498).
Emancipation may be effectuated by the express consent of the
parent, or it may be implied from the surrounding circumstances
that indicate satisfactorily the intention to emancipate the
child (Crosby v Crosby, 230 App. Div. 651; see also, 46 N.Y. Jur
2d, Domestic Relations, §§ 443-447). In the instant case, it is
clear that the parties' minor son became emancipated upon
entering West Point (see, Matter of Veneri v Veneri, 40 A.D.2d 735;
Matter of Fauser v Fauser, 50 Misc.2d 601). He is
considered a member of the Regular Army (see, 10 U.S.C. § 3075 [b]
[2]), and subject to extensive governmental control, which is
inconsistent with a parent's control and support of a child.
Furthermore, he attends West Point tuition free and is provided
with room, board, health care, and monthly pay of $504.30, plus
other allowances. Thus, he is self-supporting and financially
independent of his parents. That his mother chooses to visit him
almost every weekend, send him food packages, and pay for his
subscription to periodicals, is not determinative of the father's
obligations (see, Matter of Veneri v Veneri, supra).
We find also that the father proved the existence of a "mistake
of fact" in the income execution. The CPLR provides that a
"mistake of fact" means "any error in the amount of current
support or arrears or in the identity of the debtor or that the
order of support does not exist or has been vacated" (CPLR 5241
[a] [8]). However, that restrictive definition is not rigidly
applied to preclude relief in circumstances where the debtor is
innocent of any wrongdoing within the over-all contemplation of
the statute (see, Cramer v Cramer, 140 A.D.2d 990; Matter of
Goodman v County of Suffolk, 138 Misc.2d 323;
Shutt v Shutt, 133 Misc.2d 81; Siegel, Practice Commentaries,
McKinney's Cons Laws of NY, Book 7B, 1990 Pocket Part, CPLR
5241). In fact, it has been held that a mistake of fact is not
an application by a debtor to merely "correct" an income execution,
but is, rather, an objection to the income execution itself
(see, Matter of O'Brien v O'Brien, 134 Misc.2d 159). At bar,
the emancipation of the minor son terminated the father's
obligation to pay child support and to that extent it was
improper to issue the income execution (see, Cramer v Cramer,
supra; Shutt v Shutt, supra).
Finally, we hold that the Family Court had jurisdiction to
terminate support for the emancipated son, and to vacate the
income execution. The judgment of divorce provided that the
Supreme Court and the Family Court were to retain concurrent
jurisdiction to enforce those provisions of the stipulation which
were capable of specific enforcement, but was silent as to the
issue of modification. Family Court Act § 466 (c) (ii) provides
that where the Supreme Court is silent on the issue, the Family
Court may entertain an application to modify a divorce judgment
on the ground that there has been a subsequent change in
circumstances and that modification is required (see, Matter of
Leontitsis v Leontitsis, 128 A.D.2d 535; Matter of Tighe-Duck v
Duck, 135 Misc.2d 631). The Family Court properly entertained
the application, and upon finding that the parties' minor son was
emancipated, properly terminated support for him and vacated the
income execution. Eiber, J.P., Harwood, Balletta and Rosenblatt,
JJ., concur.