I. PAPERS READ ON OBJECTIONS

A. FACTUAL BACKGROUND

The parties were married to one another on January 15, 2010. A matrimonial action was filed in Nassau County Supreme Court in 2018. On February 19, 2019, the parties entered into a Separation Agreement settling their matrimonial litigation. The Separation Agreement was incorporated but not merged into a Judgment of Divorce signed by the Honorable Joseph H. Lorintz on June 14, 2019.

There are two children of the parties' marriage, N.B., born XX/XX/XX (age 14), and Z.B., born XX/XX/XX (age 11).

The Mother was designated as the residential custodial parent of the children of the marriage pursuant to the terms of the parties' February 19, 2019 Separation Agreement. The Separation Agreement required the Father to pay basic child support to the Mother for the benefit of the infant issue of the marriage in the sum of $1,500.00 per month.

On February 9, 2024, the Father was granted temporary custody of the children of the marriage by Emergency Order to Show Cause filed in Nassau County Supreme Court, signed by the Honorable Ellen Tobin. On March 22, 2024, the Father filed a Petition for Modification of an Order of Support in Nassau County Family Court, Docket F-02525-24/24A, in which he sought to suspend his child support payments to the Mother due to the change in residential custody. On May 6, 2024, the parties appeared before Support Magistrate Sondra M. Toscano. Magistrate Toscano noted that the children had resided with the Father since January 28, 2024 and that there was a Supreme Court Order granting the Father Temporary Custody of the children. According to the record, there were issues between the children and the Mother's boyfriend. The Mother agreed that the children should continue to live with the Father and she consented to terminate Father's child support payments. Magistrate Toscano issued an Order on Consent terminating the Father's basic child support obligation effective March 22, 2024. On May 30, 2024, the parties entered into a Modification Agreement So Ordered by the Honorable Ellen Tobin, granting residential custody of the children of the marriage to the Father.

B. PROCEDURAL BACKGROUND

On November 21, 2024, the Father filed a Petition for Support in Nassau County Family Court, Docket No. F-09811-24, requesting child support from the Mother for the benefit of the children of the marriage as the children were now living with him.

The parties appeared virtually before Support Magistrate Toscano on February 18, 2025. The Father submitted financial information to the Court showing 2023 W-2 earnings of $99,483.58. The Mother claimed to have sent her tax returns to the Court the evening prior to the appearance. She told the Court that she worked as a teacher, artist, and healer. She said that she also runs an Airbnb and that she has an Etsy business. She claimed annual earnings of $33,280.00. The Father argued that the Mother has a million dollar home on the North Shore of Long Island, and that during their matrimonial proceeding, he was told that she earned $40,000.00 annually. Magistrate Toscano issued a Temporary Order of Support on Consent, directing the Mother to pay basic child support to the Father in the amount of $704.00 per month, attributing minimum wage to the Mother. The Temporary Order of Support was effective February 18, 2025 and commenced March 1, 2025.

On April 15, 2025, the parties appeared virtually before Magistrate Toscano. The parties indicated that they wanted to resolve the matter and requested the assistance of the Court. Magistrate Toscano suggested mediation, but the parties wanted assistance from Magistrate Toscano rather than from a mediator. A conference was held in an effort to reach an agreement as to the amount of support to be paid by the Mother to the Father for the benefit of the children. Notably, at no time during this or any other conference on this Petition was there a question as to whether or not the Mother was obligated to pay basic child support to the Father; the discussions were in regard to what the appropriate amount of child support would be based upon the Mother's various and somewhat unverifiable income sources and lifestyle, as well as the needs of the children. Further, while Magistrate Toscano indicated that the parties could not come to an agreement, the record reflects that the parties stated more than once during that conference that they would consent to make the February 18, 2025 Temporary Support Order final. It is unclear from the record as to why that did not occur. The parties were directed to exchange financial information to the extent that they had not already done so, and the February 18, 2025 [*2]Temporary Support Order was continued. A final conference was scheduled for April 30, 2025, and a trial was scheduled for May 29, 2025.

The Father appeared virtually on April 30, 2025 and he was sworn in. The Mother did not appear, nor did she communicate with the Court regarding the appearance. The Father indicated that the Mother was in Greece at the time. Magistrate Toscano commenced and completed an Inquest.

A. TESTIMONY OF E.B.

The Father testified and introduced six exhibits into evidence: February 19, 2019 Separation Agreement, May 30, 2019 Modification Agreement, November 21, 2024 Petition, 2023 Tax Return, Financial Disclosure Affidavit, and, June 13, 2019 Judgment of Divorce. He testified that he is an insurance agent and that the expenses for the children alone (rent, utilities, bills, food and clothing) total over $4,490.00 per month. He testified that the Mother has a master's degree in finance and a master's degree in teaching, that she travels extensively, and that she earns or is capable of earning more money than she claimed in these proceedings. The Father said that the parties continue to be equally responsible for the extra-curricular and medical expenses of the children pursuant to the February 19, 2019 Separation Agreement. Magistrate Toscano adjourned the matter to render a decision and vacated the May 29, 2025 trial date.

B. DISMISSAL

On May 2, 2025, Support Magistrate Toscano issued a Decision/Findings of Fact and Order After Inquest dismissing the Father's Petition for Support, as well as an Order Terminating the [February 18, 2025 Temporary] Order of Support effective March 22, 2025; both Orders based upon a determination that the children of the marriage emancipated when they left the Mother's care and custody. The Orders were mailed to the parties on May 6, 2025.

A. OBJECTIONS

On May 29, 2025, the Father timely filed Objections to Magistrate Toscano's May 2, 2025 Decision/Findings of Fact and Order after Inquest and Order Terminating the Order of Support, Docket No. F-09811-24, pursuant to Family Court Act § 439(e). On that same day, the Father filed a notarized Affidavit of Service by Mail, demonstrating that his Objections were served upon the Mother by priority mail on May 29, 2025.

B. REBUTTAL

No rebuttal papers were received by the Court whatsoever, and certainly not within the statutory time frame.

A. REVIEW OF THE RECORD

In deciding the Father's Objections, this Court reviewed the November 21, 2024 Petition for Support, the May 30, 2024 Modification Agreement, the June 14, 2019 Judgment of Divorce, [*3]the February 19, 2019 Separation Agreement, as well as the other exhibits submitted to the Court during the Inquest. This Court has also reviewed the digital recording of the proceedings that took place before Magistrate Toscano on April 15, 2025 and on April 30, 2025, exercising its discretion to do so in an effort to spare the parties the time and expense of ordering transcripts. (See 22 NYCRR §205.37[c]).

B. THE FATHER'S CLAIM

The Father's Objections argue that the 2019 Separation Agreement does not preclude him from receiving child support for the children of the marriage, nor does the Separation Agreement force the Court to render the 11- and 14-year-old children of the marriage emancipated based upon a change of custody from one parent to the other.

C. PARENTAL DUTY TO SUPPORT CHILDREN

It is a matter of fundamental public policy in New York State that parents are obligated to support their children until the age of 21. Family Ct Act Section 413[1], Matter of Roe v. Doe, 29 NY2d 188, 192-193 [1971], Matter of Thomas B. v. Lydia D., 69 AD3d 24 [1st Dept 2009]. Child support may end prior to the age 21 if a child sooner emancipates. See Matter of Thomas B., 69 AD3d 24 at 28 (quoting Matter of Commissioner of Social Srevs. V. Jones-Gamble, 227 AD2d 618 [1996]).

1. Emancipation

"Emancipation is significant because a finding of emancipation terminates the parental obligation of support." Matter of Thomas B., 69 AD3d 24 at 29 (quoting Matter of Bailey v. Bailey, 15 AD3d 577 [2005]). As set forth in Matter of Thomas B., 69 AD3d 24 at 28 (quoting Matter of Bogin v. Goodrich, 265 AD2d 779, 781 [3d Dept 1999]), "Children are deemed emancipated if they attain economic independence through employment, entry into the military service or marriage and, further, may be deemed constructively emancipated if, without cause, they withdraw from parental supervision and control." The parties may also provide for emancipation contingencies in a written agreement or stipulation.

2. Child Support Provisions in a Written Agreement or Stipulation

"A stipulation of settlement which, like the one at issue here, is incorporated but not merged into a judgment of divorce, is a contract subject to the ordinary principles of contract construction and interpretation." Keller-Goldman v. Goldman, 149 AD3d 422 [1st Dept 2017]. These rules provide that "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms . . . [and] courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing." See Keller-Goldman, 149 AD3d 422 at 423 (quoting Beinstein v Navani, 131 AD3d 401, 405 [1st Dept 2015]).

"Where the parties have included child support provisions in their agreement, it is presumed that in the negotiation of the terms of the agreement the parties arrived at what they felt was a fair and equitable division of the financial burden to be assumed in the rearing of the child." Battinelli v Battinelli, 192 AD3d 957 [2d Dept 2021] (quoting, Matter of Trester v Trester, 92 AD3d 949, 950 [2d Dept 2012]). Notwithstanding the rights of parents to negotiate fair and equitable support for their children, the courts have articulated a caveat to that principle: The parties cannot contract away the duty of child support. "Despite the fact that a separation agreement is entitled to the solemnity and obligation of a contract, when children's rights are involved, the contract yields to the welfare of the children." Pecora v Cerillo, 207 AD2d 215, 218 [2d Dept 1995] (quoting Maki v. Straub, 167 AD2d 589, 590 [3d Dept 1990], lv denied 78 [*4]NY2d 854 [1991], appeal dismissed 78 NY2d 951 [1991])). The duty of a parent to support his or her child "shall not be eliminated or diminished by the terms of a separation agreement." Pecora, 207 AD2d at 218. " . . . nor can it be abrogated by contract. Matter of Cellamare v. Lakeman, 36 AD3d 906 [2d Dept 2007]).

Here, the parties' February 19, 2019 Separation Agreement outlines support for the children of the marriage in Section VII, "Commencing the first month following the execution of this agreement, the Husband shall pay directly to the Wife the sum of $1,500 per month as and for the support of the two Children."

The parties' Separation Agreement also contains a section entitled "Emancipation of the Children" Section XI, which states:

"Emancipation" of the Children as used in this Agreement shall be deemed to have occurred upon the earliest to happen of any of the following events:

1. the child attaining the age of twenty-one (21) years;

2. the marriage of the child, even though such marriage may be void or voidable, and despite any subsequent annulment or termination thereof;

3. entry of the child into the military service, such emancipation to continue only as long as the child is active in such miliary service; in the event of discharge prior to the happening of another emancipation event, the child shall again be deemed to be unemancipated until the occurrence of another emancipation event;

4. the child's engaging in full-time employment; full-time employment during scheduled school recess or vacation period shall not, however, be deemed an emancipation event;

5. permanent residence away from the residence of the Wife. A residence at boarding school, camp or college is not deemed a residence away from the residence of the Wife sufficient to constitute emancipation

6. death of the child."

At the time the parties entered into their 2019 Separation Agreement, the Mother was the residential custodial parent and she was the parent receiving basic monthly child support from the Father on behalf of the children. While it may be clear and unambiguous that permanent residence away from the Mother's home meant that the Mother would cease to receive support from the Father, nothing in the parties' 2019 Separation Agreement indicates that the Father waived his right to receive child support from the Mother upon a change in circumstances that led to a change in custody of the children. The 2019 Separation Agreement is silent on this issue.

In fact, the Mother herself never raised this as a defense during the underlying proceedings nor in a Rebuttal to the Father's Objections. She consented to stop receiving support from the Father after the Father obtained residential custody of the children, and further, she consented to pay temporary support of $704.00 per month to the Father, effective February 18, 2025 and commencing March 1, 2025.

To be clear, this Court does not read the parties' 2019 Separation Agreement as eliminating the Mother's duty to support the children upon a change of custody. However, even assuming arguendo that the parties intended such a result, enforcement of same would be in contravention of New York's public policy and prevailing law in this jurisdiction as the children are not economically independent.

"A child cannot be considered emancipated, regardless of how clearly and unambiguously the parties defined that term in an agreement, unless he or she is "economically [*5]independent," Matter of Thomas B., 69 AD3d 24 at 30. In this matter, N.B. is 14 years old, born XX/XX/XX, and Z.B. is 11 years old, born XX/XX/XX. There is nothing in the record to reflect that either of these children earn an income or that either of these children is remotely self-supporting. To the contrary, the Father testified that he pays rent, utilities, food and clothing expenses for the children, and that he and the Mother share in the cost of the medical and extra-curricular expenses of the children. There can be no argument that would support children at these ages who are financially dependent upon their parents being deemed emancipated and thereby deprived of child support.

The Domestic Relations Law § 240 (1-b) (h) permits parties to deviate by agreement from the basic child support obligation. However, that section also provides that the court shall retain discretion with respect to child support. That discretion unquestionably extends to invalidating those provisions in agreements that violate public policy, as would be necessary here if, as Magistrate Toscano opined, the parties 2019 Separation Agreement eliminated the Mother's obligation to pay child support to the Father on behalf of the children.

This Court finds that Magistrate Toscano improperly viewed the change of custody from the Mother to the Father as an emancipation event which would result in the children being deprived of child support at ages 14 and 11. Extinguishing support for these children where there is no evidence of economic independence is against public policy and prevailing law in this jurisdiction. Child support is paid on behalf of the children, and even assuming that the parties' 2019 Separation Agreement deprived these children of that benefit, which this Court does not believe it does, this Court has discretion to invalidate such a provision.

Magistrate Toscano correctly calculated the Mother's child support obligation at minimum wage to be $704.00 per month. However, the record reflects that the Mother's income or earning capacity is likely higher than minimum wage. Notably, the Order of Dismissal was based solely the language of the parties' 2019 Separation Agreement and not on the merits of the case presented by the Father. The matter is therefore being remanded back to Magistrate Toscano to determine the correct amount of child support to be paid by the Mother to the Father.

Any remaining contentions of the Father are rendered academic in light of the foregoing.

For the foregoing reasons, it is hereby:

ORDERED, that the Father's Objections to Support Magistrate Toscano's May 2, 2025 Decision/Findings of Fact and Order after Inquest and Order Terminating the Order of Support, Docket No. F-09811-24, are hereby granted; and it is further

ORDERED that Support Magistrate Toscano's February 18, 2025 Temporary Order of Support of $704.00 per month, is hereby reinstated, commencing March 1, 2025; and it is further

ORDERED, that arrears are set at $3,520.00, however, upon proof, the Mother shall be credited for any payments made towards the February 18, 2025 Order; and it is further

ORDERED, that the matter is remitted to Support Magistrate Sondra M. Toscano for a further hearing on the appropriate support to be paid by the Mother to the Father; and it is further

ORDERED, that the parties and counsel shall appear before Support Magistrate Sondra M. Toscano, Esq. on July 28, 2025 at 11:00 a.m. for further proceedings.

Any arguments not specifically addressed herein are otherwise deemed without merit and rejected.

This constitutes the decision and order of the Court.