Family Court, Onondaga County, May 3, 2019

Beth A. Lockhart for petitioner.

Michael E. Underwood for respondent.

On April 1, 2019, the attorney for the petitioner filed an{**63 Misc 3d at 1011} objection to the Support Magistrate's "Decision/Order" filed and entered on February 28, 2019. An affidavit of service was also filed with the court indicating proper service of the objection upon the attorney for the respondent. In making its determination on the objection, the court reviewed the case file, exhibits and transcript of the proceedings.

As background, the petitioner filed a "Petition for Modification of a Prior Order of Child Support Made by Family Court" seeking an order vacating an order filed and entered on October 14, 2016, directing the petitioner to pay child support each year in the amount of $227.50 per week over a 40 week period ($9,100 annually) from September 17th through June 11th to the respondent for basic child support for the parties' minor child A.M. (hereinafter referred to as child). The petitioner alleged there had been a substantial change of circumstances to warrant modification in that the minor child had "enlisted" in the United States Air Force as of August 30, 2018, and thus was emancipated pursuant to the Family Court Act.

The matter came before the Support Magistrate for trial on February 15, 2019, and the petitioner appeared with his counsel Beth A. Lockhart, Esq., and the respondent having appeared with her counsel, Michael E. Underwood, Esq., and upon conclusion of testimony the Support Magistrate reserved decision.

The Support Magistrate issued written findings of fact and found the child's participation in the Air Force Reserve Officer Training Corps (herein referred to as ROTC) did not constitute entry into the military service, continued the prior order of support and dismissed the petition with prejudice. The attorney for the petitioner objects to the Support Magistrate's decision/order dismissing the petition and asserts that the child is emancipated based upon (1) the child taking an oath of enlistment and entering into an Air Force Reserve Officer Training Corps contract which qualifies as entry into military service and (2) the child being self-supporting as she receives income through military and civilian employment and is thereby emancipated.

With respect to providing support for children, New York State law requires each parent to provide a fair and reasonable amount of support for his or her minor children within financial guidelines set by statute and based upon an analysis of the financial resources of the parents. Furthermore, it is "fundamental public policy in New York that parents are responsible{**63 Misc 3d at 1012} for their children's support until age 21" (Matter of Burr v Fellner, 73 AD3d 1041, 1041 [2010]; Melgar v Melgar, 132 AD3d 1293 [2015]; Family Ct Act § 413). A child may be emancipated by way of attaining "economic independence through employment or entry into military service" (Matter of Lowe v Lowe, 67 AD3d 682, 683 [2009]). The burden of proof to establish that a child is emancipated is on the party asserting such claim.

The child is a full-time undergraduate student attending a university outside of New York State and she is employed on a part-time basis and resides with the respondent during academic breaks. The Support Magistrate found a distinction exists between enlistment in military service and participation in a Reserve Officer Training Corps program for purposes of determining whether or not a child is emancipated and thus vacating a noncustodial parent's obligation to provide financial support. The court finds the Support Magistrate conducted a proper analysis as to whether the child's participation in the ROTC program constitutes entry into the military service as defined by statute.

The Support Magistrate also correctly found that a distinction exists between a military academy cadet's "full-time" miliary service designation and a college student's participation in a college ROTC program upon taking an "Oath of Enlistment." Thus, the petitioner has a continued obligation to provide financial support for the child to the custodial parent. The court will further note that the child is not considered a regular member of the military. She is not provided health care, a salary, payments for room and board, or tuition, nor is she provided other types of allowances by the Air Force. (Zuckerman v Zuckerman, 154 AD2d 666 [1989].)

The court also finds the contract entered into by the child on August 30, 2018, establishes membership in the ROTC program but that such participation does not equate to "entry into military service." It is only upon fulfilling the contract terms by continuing military training, remaining a full-time student, pursuing a degree in ICAD (business management), passing the Air Force Officer Qualifying Test and graduating college, that the child would then be commissioned and thus emancipated.

The court will note that it is only upon the occurrence of an "event certain" that a participant in the Reserve Officer Training Corps commences active military duty designation and receives the financial benefits thereof.{**63 Misc 3d at 1013}

The court finds that the child is not emancipated as none of the enumerated events have occurred which would qualify the child as having entered into active military duty service. The court's finding is further supported in that the child does not receive the benefits afforded to military academy cadets such as health insurance benefits or a regular annual military salary.

Secondly, to support a claim of emancipation based upon a child's income earned from employment the moving party must demonstrate the child is "economically independent through employment and is self-supporting" (Matter of Cedeno v Knowlton, 98 AD3d 1257, 1257 [2012]; Matter of Drumm v Drumm, 88 AD3d 1110 [2011]). Decisional law has held that even a child obtaining full-time employment is not, on its own, determinative that the child is emancipated. The testimony and record reflect that the child is attending college on a full-time basis, relies upon the respondent mother for health insurance coverage and is assisted by the custodial parent in obtaining educational loans as well as being provided with monies for motor vehicle insurance and repair costs. (Matter of Thomas B. v Lydia D., 69 AD3d 24 [2009].)

The income derived as the result of a "stipend" in the amount of $450 per month through ROTC and part-time employment does not warrant a finding of economic independence. (Matter of Fisher v Fritzsch, 35 AD3d 1146 [2006].) Furthermore, pursuant to the terms of the ROTC contract the child has not been awarded any additional financial assistance in the form of scholarship monies pursuant to 10 USC § 2107. In the event scholarship monies were awarded such awards should not be considered for the purposes of determining emancipation nor entitle the noncustodial parent to a reduction in their child support obligation. (Matter of Yorke v Yorke, 83 AD3d 951 [2011].) As such, the court finds the child is not economically independent nor self-supporting in order to render a finding that she is emancipated. (Matter of Drumm v Drumm, 88 AD3d 1110 [2011]; Matter of Cedeno v Knowlton, 98 AD3d 1257 [2012].)

Accordingly, the court finds the child subject to this proceeding is not emancipated. The petitioner's objections are hereby denied and dismissed as set forth herein.