CHILD SUPPORT: THE CONSTRUCTIVE EMANCIPATION OF A COLLEGE STUDENT

Matter of Jenulis v. Ting; Date filed: 2021-09-07; Court: Family Court, Suffolk; Judge: Support Magistrate Darlene Jorif-Mangane; Case Number: F-01252-21/21A&B:

"COMBINED FINDINGS OF FACT Darlene Jorif-Mangane, being the Support Magistrate before whom the issues of support in the above-entitled proceeding were assigned for determination, makes the following findings of fact: Arlene Ting, Petitioner, filed a petition on February 5, 2021 and Stephen Jenulis, Respondent, filed a petition on March 16, 202, both seeking to modify a Judgment of Divorce dated June 20, 2016 and entered on July 1, 2016 which provided for the support of the following children:

Name Date of Birth

Allison Jenulis      June 4, 1999

Kyle Jenulis  August 16, 2000

Arlene Ting and Stephen Jenulis were married on September 5, 1998, and were divorced on June 20, 2016. The following child resides with Arlene Ting: Kyle Jenulis. Both parties appeared with counsel and the court conducted a hearing. The court received the following evidence on the consent of both parties:

Court Exhibit 1     Judgment of Divorce dated June 20, 2016 and entered on July 1, 2016 and a Stipulation of Settlement dated September 17, 2015.

Court Exhibit Arlene Ting’s financial disclosure affidavit and 2020 income tax return.

Court Exhibit 3     Stephen Jenulis’ financial disclosure affidavit, 2020 income tax return and pay stub.

Petitioner submitted copies of text messages between Respondent and Kyle as Petitioner’s Exhibit 2.

Petitioner testified that Respondent is her ex-husband and that the parties were divorced in 2016. She stated that they have 2 children, Allison and Kyle. Petitioner reported that Allison was in her last semester of college at SUNY Stony Brook and would graduate in May of 2021. She stated that Allison will turn 22 in June of 2021. Petitioner testified that Allison majored in chemistry and chemical engineering and has attended college continuously for 4 years. She stated that Allison is taking 2 classes for a total of 7 credits in her final semester because she took classes in the summer of 2020 for a total of 6 credits. Petitioner acknowledged that Allison did not attend college on a full time basis for the Spring 2021 semester.

Petitioner testified that the child Kyle is attending Suffolk Community College on a full-time basis. She stated that Kyle graduated from high school in 2018 and then attended SUNY Albany for 1.5 years through the Fall of 2019. Petitioner testified that Kyle was dismissed from SUNY Albany for academic reasons and he then enrolled at Suffolk Community College for the Spring of 2020. She stated that Kyle took 11 credits for the Fall of 2020 and 12 credits for the Spring of 2020. Petitioner reported that Kyle graduated with an Associates degree at the end of the Spring 2021 semester.

Petitioner testified that at the time that the parties signed the Stipulation of Settlement, they were sharing parenting time 50/50 with the children living with the parties full time on alternating weeks. She stated that the parties’ Stipulation of Settlement provided that neither party would pay child support to the other. The parties agreed that Petitioner would be responsible for Allison’s expenses and Respondent would be responsible for Kyle’s expenses. It was further agreed that the parties would share Kyle’s expenses when Allison was emancipated. Petitioner acknowledged that one of the definitions of emancipation in the Stipulation of Settlement is reaching the age of 21 years or 22 years if the child is attending college on a full-time and continuous basis in a program leading to a four year degree.

Petitioner reported that Allison went to college and lived on campus so the parties were sharing parenting time on a 50/50 basis for Kyle. She stated that Alliston stopped living on campus in early December of 2020 and began living with Petitioner on a full time basis in January of 2021. She stated that Kyle lived on campus when he attended SUNY Albany but that the parties would share parenting time on a 50/50 basis during school breaks except for the summer of 2020. Petitioner testified that Kyle resided with her on a full time basis during the summer of 2019 before returning to SUNY Albany. She stated that as of January of 2020 Kyle has been living with her on a full time basis.

Petitioner testified that the children follow the house rules and that they go to school, to work and to the gym. She stated that she pays for all of Allison’s expenses including, food, clothing, toiletries, hair cuts, car insurance and cell phone. She reported that she pays for all of Kyle’s expenses except for his cell phone. Petitioner testified that Respondent carries the health, dental and vision insurance for the children and that she is responsible for all of the co-pays. She reported that Respondent has not contributed to the children’s living expenses except for Kyle’s cell phone. Petitioner testified that she has asked Respondent to contribute to the children’s living expenses. She stated that Respondent contributes his 40 percent share of the children’s college expenses. Petitioner testified that both children have cars and work part-time but she was unaware of how much they earn. She reported that both children are in therapy. Allison has been attending for 2 years and Kyle just started approximately 1.5 months ago. Petitioner testified that she pays the co-payments for both children. She stated that she and Respondent recommended and encouraged the children to participate in therapy and that Respondent made participation a rule for his household.

Petitioner testified that she is employed as a chemist at Estee Lauder and earned $131,000.00 in 2020.

Petitioner testified that she does not have a relationship with Respondent and that they only communicate via email. She stated that she has encouraged the relationship between Respondent and the children since the parties divorced. Petitioner reported that Kyle and Respondent had arguments in the summer of 2019 and that she encouraged them to work things out. She stated that she has conversations with Kyle in which she encourages him to see Respondent and respond to Respondent’s text messages. She reported that Kyle has seen Respondent at holiday events such as going to his grandmother’s home on Easter. Petitioner testified that Allison also encourages Kyle to spend time with Respondent

Allison testified that she is 22 years old. She stated that she graduated from SUNY Stony Brook in May of 2021 with a degree in chemistry and chemical engineering. She reported that she took 2 classes in the Spring of 2021 for a total of 7 credits. Allison testified that she informed Respondent that she was only taking 2 classes and that Respondent was fine with it. She stated that she took 2 classes in the summer of 2020 for a total of 6 credits because she needed those classes for her degree. She stated that those classes were not offered every semester. Allison acknowledged that 7 credits is not a full time course load.

Kyle testified that he was 20 years old on his first day of testimony. He stated that he just graduated with an associates degree from Suffolk Community College with a 3.4 grade point average. He reported that he attended University of Albany for 3 semesters but had to leave after he was academically disqualified because of his low grades. Kyle testified that he enrolled full time at Suffolk Community College in January of 2020. He stated that he was one credit below full time in the Fall of 2020 but returned to full time in the Spring of 2021. He stated that he dropped a class toward the end of the Fall 2020 semester because his grade was not good and he did not want it on his transcript. Kyle reported that he applied to Hofstra University, SUNY Old Westbury and Farmingdale State College to obtain a bachelor degree. Kyle testified that he was accepted by Farmingdale State College and will attend full time for the Fall of 2021 and major in business management. He testified that he is projected to graduate in the Spring of 2023.

Kyle testified that he has been living with Petitioner since he left University of Albany. He stated that prior to that he split his time between Petitioner’s and Respondent’s homes. Kyle reported that he speaks to Respondent “here and there”. He did not recall telling Respondent that he did not want to speak to Respondent.

Kyle testified that he wanted to join a fraternity when he was at University of Albany and that Respondent disagreed with him joining. Kyle stated that he joined anyway. He reported that he lived with fraternity brothers while he was at school. He testified that he visited the University of Albany after he left against his father’s wishes. He stated that he went back because he was still paying rent and that he needed to get his belongings in case he found someone to take over the lease. Kyle reported that Respondent helped him to speak to a counselor at Suffolk Community College to get enrolled. He stated that he told Respondent about his Spring 2021 grades.

Kyle testified that he works at a restaurant 25 to 30 hours per week when he is not in school and approximately 12 hours per week when he is attending school.

Kyle testified that he has not spent time alone with his father in the past year. He stated that he saw Respondent at his grandmother’s home for Easter and his grandmother’s birthday.

Kyle testified that Respondent last gave him cash years ago. He stated that Respondent pays his phone bill and part of his car insurance. Kyle reported that Respondent attended Allison’s graduation. He stated that he informed Respondent that he graduated from Suffolk Community College but that Respondent did not offer to celebrate with him and did not give him a gift. Kyle testified that his step-brother, Justin, had a graduation celebration that Allison was invited to but not him. He stated that it did not feel good to not be invited but he understood that Justin “might have had some feelings about me not coming”. Kyle reported that Respondent encouraged him to apply for a summer job at Adventure Park in 2020 and that he got the job. He stated that Respondent planned a family gathering that he thought was a dinner but it was a lunch and he was unable to attend because he had to work. Kyle testified that Respondent told him in a text that he wanted to emancipate Kyle approximately 1 year ago. He stated that he found out that Respondent had filed a petition to emancipate him in February or March of this year when Petitioner showed him the petition. He reported that he reviewed the petition and the documents submitted to the court because Petitioner informed him that he might have to testify in court. He stated that Petitioner did not share her petition for child support. Kyle testified that is important to him for Respondent to be proud of me but that Respondent has not shown any support for me in a while. He stated that he would love to have a relationship with Respondent but that it is confusing to have Respondent see him at family gatherings where Respondent wants to talk to him and hug him but also wants to emancipate him.

Kyle acknowledged that Respondent has sent him over 400 communications over the past 18 months. He stated that he has not invited Respondent to spend time with him or volunteered to spend time with Respondent. He testified that he has not given Respondent a birthday or Father’s Day card for the past 2 to 3 years. Kyle testified that Respondent has never gone months without contacting him. He reported that most of Respondent’s texts are invitations to family dinners and activities.

Kyle testified that he does not pay rent to Petitioner. He stated that his family pays for tuition. He reported that he pays for his own gas, personal luxuries, clothes and haircuts. He stated that Petitioner likes to help him pay for his work clothes and haircuts. Kyle stated that he is 21 years old and is an adult.

Respondent testified that he filed the instant petition to have Kyle deemed to be constructively emancipated. He stated that Kyle was 14 years old when the parties got divorced. Respondent reported that he was a part of the process that resulted in Kyle attending University of Albany and that he was supportive of Kyle attending. He stated that Kyle wanted to travel to Canada with friends during his freshman year. Respondent stated that he had reservations about the timing of the trips which was 2 weeks before finals. He also had concerns about the cost and the different drinking laws in Canada. Respondent testified that he did not give Kyle permission to go on the trip but Petitioner allowed Kyle to go and helped him pay for the trip. Respondent testified that in the Spring of 2019 he had reservations about Kyle’s participation in an unsanctioned fraternity that was not approved by the university. He stated that Petitioner was concerned about how his participation would impact his grades but she “did not push back on his decision making”. He stated that he conveyed his reservations to Kyle but that Kyle continued to participate. He reported that Kyle texted him on Thanksgiving vacation to warn Respondent that he had bruises that he got while on campus and the severity of the bruises. Respondent said that he observed Kyle with bruises on his face, hands and elbows. Respondent testified that Kyle was academically dismissed at the end of the Fall 2019 semester. Respondent testified that he supported Kyle’s decision to enroll in Suffolk County Community college and the he assisted Kyle in making a schedule with an advisor.

Respondent testified that he objected to Kyle drinking and using drugs during his freshman year and when he returned home. He stated that his household rules include doing chores, having sit down dinners, working, not coming home very late and no vaping in the home. When Kyle returned home, Respondent stated that he informed Petitioner that Kyle was vaping and that he had found a vaping device in Kyle’s room. Respondent testified that Petitioner informed him that she had been aware that Kyle was vaping since January of 2019. He reported that Petitioner had never previously informed him that she was aware that Kyle was vaping. Respondent reported that he suspected that Kyle was drinking in 2019 because Kyle would take alcohol at family parties or come home looking like he was under the influence. He stated that there were times when he was concerned that Kyle was asking for money for gas and using it to purchase alcohol.

Respondent testified that Kyle wanted to go to University of Albany on the Friday before he was supposed to start classes at Suffolk Community College in 2020. He stated that he was concerned that Kyle was going backward when he was supposed to be starting over at Suffolk Community College. Respondent reported that he advised Petitioner that he was concerned about Kyle’s mental health and that Petitioner felt that it would make matters worse if they stopped Kyle from going to visit University of Albany. He stated that Petitioner allowed Kyle to go on the visit.

Respondent testified that another household rule was that Kyle would participate in therapy. He stated that he asked that Kyle see a therapist when he returned from Albany and while he was attending Suffolk Community College. He reported that he discussed therapy with Petitioner via email and she agreed that therapy would be a good idea. He testified that Kyle did not start attending therapy until a couple of weeks before the trial began.

Respondent testified that he asked Kyle to follow a parenting scheduled when he was home from school and asked Petitioner to have Kyle follow the schedule. He reported that Kyle has refused to follow the parenting schedule. Respondent testified that he invited Kyle to many family events and dinners at his home but Kyle would either decline or not respond at all. He stated that he had scheduled parenting time with Allison but Kyle would not make a schedule. Respondent reported that both children drive and can get to a parent’s home when they want to. He stated that he attended Allison’s graduation and invited Allison and Kyle to a dinner celebration but Kyle declined. He reported that he did not attend Kyle’s graduation from Suffolk Community College because he did not find out about the graduation until the trial. Respondent acknowledged that his step-son had a graduation celebration that Allison was invited to but not Kyle. He stated that Kyle informed him via text that he would be attending Farmingdale State College. Respondent testified that he has seen Kyle 3 times in the last year. Once was at his father’s funeral in August of 2020. The second time was in January of this year when Kyle came to Respondent’s home to pick up his ski clothes and Christmas gifts. The third time was at Easter of this year at his mother’s home but Kyle did not speak to him.

Respondent testified that he has always been there for Kyle. Respondent testified that he is proud that Kyle is getting back on track, that he obtained academic scholarships, that he works and that he interacts eloquently with peers and adults. He stated that Kyle should be emancipated because he wants to make his own decision without input from Respondent and without any parental intervention.

The parties’ Stipulation of Settlement provides that there would not be an order of support based on the fact that the parties’ would equally share custody of the two children. The parties further agreed that Petitioner would be responsible for Allison’s expenses and Respondent would be responsible for Kyle’s expenses. Upon Allison’s emancipation, the parties would equally share Kyle’s expenses.

ALLISON

Petitioner seeks an order of support for the child Allison on the grounds that Allison has been residing with Petitioner on a full-time basis since December of 2020. Article XXIX (Termination Events) of the Stipulation of Settlement provides that any child support obligation established under the agreement shall continue with respect to each child until a child attains the age of 21 years, or 22 years if attending college on a full time basis.

In Ayers v. Ayers, 92 A.D.3d 623, 624-625 (App. Div. 2d Dept. 2012) the court held that

a stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principles of contract interpretation (see Rainbow v. Swisher, 72 N.Y.2d 106 (1988); De Luca v. De Luca, 300 A.D.2d 342 (App.Div. 2d Dept. 2002); Girardin v. Girardin, 281 A.D.2d 457(App. Div. 2d Dept. 2001). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (see Slatt v. Slatt, 64 N.Y.2d 966 (1985); see also De Luca v. De Luca, 300 A.D.2d at 342). A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning (see Cohen-Davidson v. Davidson, 291 A.D.2d 474, (App. Div. 2d Dept. 2002).

The child Allison turned 21 years of age on June 4, 2020. Petitioner filed the instant petition on February 5, 2021. At that time, Allison was attending SUNY Stony Brook for the Spring 2021 semester and carrying 7 credits. Both Petitioner and Allison acknowledged that carrying 7 credits is not a full time course load. The Stipulation of Settlement is clear that any support obligation terminates after 21 years of age if a child is not attending college on a full time basis. Given that Allison had turned 21 years of age and was no longer attending college on a full time basis, Respondent’s support obligation was terminated and Petitioner is not entitled to an order of support.

KYLE

Petitioner seeks an order of support for the child Kyle on the grounds that he has resided with her on a full-time basis since December of 2019. Petitioner filed the instant petition on February 5, 2021. Respondent filed a petition on March 16, 2021seeking to have the child Kyle declared emancipated based on Kyle’s refusal to maintain a relationship with Respondent.

Family Court Act §413(1)(a) mandates that a parent is obligated to support a child until the child is 21 years of age unless the child is emancipated prior to reaching that age. Emancipation events include joining the military, getting married, becoming self-supporting and economically independent, and abandoning the parent. Matter of Roe v. Doe, 29 N.Y.2d 188 (1971); Matter of Parker v. Stage, 43 N.Y.2d 128 (1977); Matter of Thomas B. v. Lydia D., 69 A.D.3d 24 (App. Div. 1st Dept. 2009); Matter of Donnelly v. Donnelly, 14 A.D.3d 811 ( App. Div. 3d Dept. 2005); Matter of Columbia County Dept. of Social Servs. v. Richard O., 262 A.D. 3d 913 App. Div. 3d Dept. 1999. Upon the child’s emancipation, the support obligation is suspended or terminated. Matter of Commissioner of Social Servs. v. Jones-Gamble, 227 AD2d 618 (App. Div. 2d Dept.1996). In addition, the courts have held that a child of employable age will be deemed to be emancipated when s/he abandons the parent’s home, without the parent’s consent, for the purpose of avoiding parental control. Under these circumstances the child forfeits the right to support. Matter Roe v. Doe 29 N.Y.2d 188 (1971); Parker v. Stage 43 N.Y.2d 128 (1977); Alice C. v. Bernard G.C. 193 A.D.2d 97 (App. Div. 2d Dept. 1993); Bailey v. Bailey 15 A.D.3d 577 (App. Div. 2d Dept. 2005)

In Matter of Jurgielewicz v. Johnston, 114 A.D.3d 945 (App. Div. 2d Dept. 2014), the court held that [u]nder the doctrine of constructive emancipation, a child of employable age who actively abandons [***2] the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support. A child’s mere reluctance to see a parent is not abandonment” (Matter of Barlow v. Barlow, 112 AD3d at 818; see Matter of Grucci v. Villanti, 108 AD3d 626, 626-627, 969 NYS2d 493 [2013]; Schulman v. Schulman, 101 AD3d at 1099; Matter of Glen L.S. v. Deborah A.S., 89 AD3d at 857; Matter of Turnow v. Stabile, 84 AD3d 1385, 1386, 924 NYS2d 292 [2011]). ” ‘[W]here it is the parent who causes a breakdown in communication with his [or her] child, or has made no serious effort to contact the child and exercise his [or her] visitation rights, the child will not be deemed to have abandoned the parent’ ” (Matter of Glen L.S. v. Deborah A.S., 89 AD3d at 857, quoting Matter of Alice C. v. Bernard G.C., 193 AD2d 97, 109, 602 NYS2d 623 [1993]; see Matter of Barlow v. Barlow, 112 AD3d 817, 976 NYS2d 573 [2013]; Schulman v. Schulman, 101 AD3d at 1099; Matter of Dewitt v. Giampietro, 66 AD3d 773, 774, [**735] 887 NYS2d 210 [2009]). Such a breakdown in communication between a parent and a child may result from the parent’s “malfeasance, misconduct, neglect, or abuse” (Matter of Barlow v. Barlow, 112 AD3d at 818, citing Matter of Wiegert v. Wiegert, 267 AD2d 620, 699 NYS2d 597 [1999]). Where a child justifiably refuses to continue a relationship with [***3] a parent due to such parental conduct, the child will not be deemed to be self-emancipated (see Matter of Barlow v. Barlow, 112 AD3d 817, 976 NYS2d 573 [2013]; Labanowski v. Labanowski, 49 AD3d 1051, 857 NYS2d 737 [2008]). “The burden of proof as to emancipation is on the party asserting it” (Schneider v. Schneider, 116 AD2d 714, 715, 498 NYS2d 23 [1986]; see Matter [****2] of [*946] Barlow v. Barlow, 112 AD3d 817, 976 NYS2d 573 [2013]; Schulman v. Schulman, 101 AD3d at 1099; Matter of Glen L.S. v. Deborah A.S., 89 AD3d at 857; Matter of Turnow v. Stabile, 84 AD3d at 1386).

In Matter of Roe v. Dow, 29 N.Y.2d 188 (1971) the 20-year-old daughter disobeyed her father by taking up residence with a female classmate in an off-campus apartment. Upon learning of his daughter’s actions, the father cut off all further support and instructed her to return to New York. Ignoring her father’s demands, the daughter sold her automobile, and elected to finish out the school year, living off the proceeds realized from the sale. Upon her return to New York, she chose to reside with the parents of a classmate on Long Island. Under these circumstances, the Court of Appeals concluded that the daughter was no longer entitled to support, holding that “where, as in the case at bar, a minor of employable age and in full possession of her faculties, voluntarily and without cause, abandons the parent’s home, against the will of the parent and for the purpose of avoiding parental control she forfeits her right to demand support.

Kyle was 20 years old when the instant petition was filed. He turned 21 years of age on August 16, 2021. It is clear that Kyle and Respondent have had a strained relationship since Kyle was dismissed from University of Albany. Both Petitioner and Respondent testified that Respondent disagreed with Kyle’s decision to join a fraternity and return to University of Albany for a visit after he was dismissed. Both Kyle and Respondent testified that Respondent helped Kyle secure admission to Suffolk County Community College. Thereafter, Respondent continued to try to have a relationship with Kyle by texting him and inviting him to family dinners and events. Respondent created a parenting schedule that Kyle did not adhere to. Both Kyle and Respondent testified that Kyle has not spent time with Respondent except for seeing him at events at other family member’s homes or events. Respondent testified that he has only seen Kyle in the last year at family events outside of his home and one time in January of 2021 when Kyle came to his home to pick up his ski equipment. Kyle did not inform Respondent that he was graduating from Suffolk Community College and did not invite Respondent to the graduation. Petitioner testified that she has encouraged Kyle to work on his relationship with Respondent.

Both Kyle and Respondent testified that Respondent told Kyle that he was emancipated approximately one year ago and the text messages in evidence substantiate that testimony. The court notes that Respondent’s statement regarding emancipation came after Respondent made numerous attempts to connect with Kyle that went ignored. The court also notes that it was not an appropriate response but it was an understandable response. The text messages also demonstrate that Respondent continued to reach out to Kyle and make arrangements to spend time together. Kyle continued to make himself unavailable to spend time with Respondent.

Kyle testified that he was accepted to Farmingdale State College during the pendency of this case and that he informed Respondent. He stated that he is enrolled full time. Petitioner did not submit any evidence to substantiate that Kyle is enrolled as a full time student.

Although Kyle has not refused all contact with Respondent, his contact with Respondent immediately prior to the filing of Petitioner’s petition and since the filing of Respondent’s petition has been minimal at best. Moreover, he has refused all meaningful visitation despite Respondent’s efforts.

In light of Kyle’s abandonment of his relationship with Respondent and the failure of Petitioner to submit evidence that Kyle is enrolled in college on a full time basis, the court finds the Kyle is emancipated and Petitioner is not entitled to an award of support.

Petitioner has not demonstrated sufficient change in circumstances to warrant the relief requested in that: both children are deemed emancipated as detailed above. Accordingly, the petition seeking an order of support for the 2 children is dismissed with prejudice.

Respondent has demonstrated sufficient change in circumstances to warrant the relief requested in that: both children are deemed emancipated and Respondent is not obligated to pay child support."