Supreme Court, Nassau County

Decided on May 1, 2026

Index No. 801061/2021

Jeffrey A. Goodstein, J.

[*1]

The following papers were read on this motion:

Order to Show Cause/ Affidavits and Affirmations in Support, and Exhibits 1

Affidavit in Opposition and Exhibits 2

Notice of Cross Motion/Affidavits and Affirmations in Support/Exhibits 3

Stipulations of the Parties 4

(NYSCEF Nos. 98-143)

Preliminary Statement

Defendant Ex-Husband ("Defendant") brings an Order to Show Cause seeking an Order directing the immediate sale of the parties' former marital residence, 126 Central Park Road, Plainview, New York. He also seeks an Order declaring that the parties daughter T.L. is emancipated, and terminating his child support. The Defendant also seeks a reduction in his support obligations due to an "unforseen" reduction in his income. Defendant also seeks an Order consolidating this post divorce action with a modification petition filed in Family Court. In that petition he seeks a downward modification of his child support obligations. Plaintiff Ex-Wife ("Plaintiff")does not oppose the consolidation, but opposes the other requested relief.

In a cross motion the Plaintiff seeks an award of counsel fees in the amount of $4,178.00 for the fees she incurred in the Family Court proceeding brought to enforce the Defendant's child support and maintenance obligations. She also seeks an Order pursuant to 22 NYCRR 130-1.1 awarding her counsel fees in the amount of $5,750.00 for the fees incurred in this proceeding.

Background

The parties were married on September 7, 2002. They had one child, T.L., born XX/XX/XXXX. Plaintiff filed for divorce on May 3, 2021. On February 10, 2023, the parties signed a Stipulation of Settlement. The Judgement of Divorce was signed September 12, 2023 [*2]and entered September 18, 2023. It incorporates, but does not merge, the Stipulation of Settlement. At the time of the settlement the defendant was earning $188,000.00.

Prior to the entry of the Judgment of Divorce the Defendant filed an emergency application seeking immediate execution of the Judgment. The basis for his request for relief was his assertion that he lost his job on May 16, 2023 and required a divorce decree to access his 401 (k) funds.

On February 14, 2025 the Defendant filed an Order to Show Cause in this Court seeking to reduce his maintenance obligation based on a loss of employment. This Court denied the application, without prejudice to renew, due to the Defendant's omission of a Net Worth Statement.

In May, 2025 the Defendant filed a petition in Family Court seeking a downward modification of his child support obligation based on a change in circumstances, his loss of employment. Plaintiff filed a motion to dismiss the petition as Defendant conceded he lost his employment prior to the entry of the Judgment of Divorce.

Plaintiff filed a petition in Family Court in June 2025, seeking the enforcement of the Defendant's child support and maintenance obligations. She alleged that Defendant was in arrears in the amount of $3,680.00 in child support and $3,332.00 in maintenance.

In his Order to Show Cause filed in this Court Defendant seeks to constructively emancipate the daughter, ending his support obligations. He also asks this Court to order a sale of the former marital residence and to consolidate the Family Court proceedings with this proceeding. By "So-Ordered" Stipulation, the Family Court proceedings were transferred to the Supreme Court and consolidated with this post-judgment proceeding.

Motions

The Defendant seeks to constructively emancipate the parties daughter claiming she has finished school and is employed full-time. He claims that she did not go to college, but instead completed an Aesthetician program and is employed by a salon. Defendant claims that the emancipation should end his child support obligations end and her graduation and employment is an event which triggers the parties' agreement to list and sell the former marital residence.

Defendant does not provide any documentation to support his claim of emancipation. He does not provide the name of an employer, or proof of income. He apparently relies on the fact of her reported graduation as sufficient proof of employment and income.

Plaintiff opposes this application alleging that T.L.'s employment is not a sufficient basis to emancipate her pursuant to the terms of our Stipulation. She argues that pursuant to the Stipulation, to become emancipated prior to twenty-one, T.L. must be both working full-time and be self-supporting.

According to plaintiff T.L. does not work full time and plaintiff supports her. Plaintiff argues that she pays all of her housing expenses such as the mortgage, utilities, inclusive of electric. gas, water and cable. She alleges that she also pays all of T.L.'s additional basic expenses such as food, toiletries, and cell phone.

With respect to the Defendant's request to sell the house, Plaintiff argues that this is not in accordance with their Stipulation. The Stipulation states that she has exclusive use and occupancy until the earliest of the happening of one of the earlier termination events: (1) The [*3]Child's graduation from undergraduate school but, in no event, beyond June 1, 2027.

Defendant argues that the child's graduation from aesthetician school and decision not to complete undergraduate school should result in the house being placed on the market. He argues that this a triggering event for the sale.

Plaintiff argues that the terms of the Stipulation distinctly address the circumstances needed for sale. It states that if the daughter did not graduate from undergraduate school in four years then the house would be put on the market on June 1, 2027. This language was specifically put into the Stipulation.

Plaintiff seeks an Order directing the defendant's maintenance and child support obligations be paid through the Support Collection Unit due to his continued failure to make the required payments, In addition, she seeks an award of attorneys fees incurred in this action as well as the Family Court proceedings consolidated with this motion.

The Defendant does not deny that he has failed to meet these obligations. He claims that he is filing a plenary action to set the Stipulation aside.

As to the Family Court petitions, Defendant filed a petition seeking downward modification of his child support obligations due to a claim of reduced income. Plaintiff filed a motion to dismiss that petition. There is no opposition filed to her motion to dismiss. There being no opposition and good cause having been demonstrated, the plaintiff's motion to dismiss the Father's petition for downward modification of his child support obligation is Granted.

Discussion

The parties Stipulation of Settlement defines events that trigger the emancipation of their daughter as affecting child support, as well as events that trigger the sale of the former marital residence.

With respect to the sale of the house, Article XII of the parties Stipulation states that the Plaintiff shall have exclusive use and occupancy of said residence until the child's graduation from undergraduate school, but in no event beyond June 1, 2027. The Stipulation is silent as to what occurs if T.L. does not attend an undergraduate school, nor does the Stipulation define "undergraduate school."

While the defendant argues that the child's completion of aesthetician school is the equivalent of a college graduation, he offers no law to support that assertion. He states no degree obtained by his daughter, nor does he name the program or school she attended.

The argument that the aesthetician program is an "undergraduate school" or college as is commonly understood is not supported by the proof presented. The words and phrases used in an agreement must be given their plain meaning so as to define the rights of the parties (Scalabrini v. Scalabrini, 242 AD2d 725 [2nd Dept 1997]).

Case law which interprets the meaning of the word "college" is limited. The Court of Appeals has stated that where a decedent had agreed to pay support of his son "so long as the boy shall remain in college," the decedent had not "unequivocally" assumed an obligation to support his son during his post-graduate education (Matter of Kelly, 285 NY 139 [1941]). The Court of Appeals evaluated the term "college," noting that it is not a word of art which, by common understanding, has acquired a definite, unchanging significance in the field of education. Its meaning varies with its context. Though at times it is used to denote any institution of higher [*4]learning, including institutions for professional or post-graduate study, it is frequently used to denote an "undergraduate" school for instruction in liberal arts having a course of study commonly requiring four years for completion and leading to a bachelor's degree (Matter of Kelly, 285 NY 139 [1941]).

Courts have relied on the language in Kelly in determining whether support obligations are triggered by a child's attendance at a particular type of institution (Hacker v. Hacker, 137 Misc 2d 819 [Sup. Ct. New York County 1987]; Patamoussis v Leonardos, 2011 NY Slip Op 52097[U] [Sur Ct, Kings County 2011]).

In the absence of a specific definition of the term undergraduate school in the separation agreement, the court is bound to apply the plain and ordinary meaning. As set forth in Kelly, supra., this Court finds that it denotes attendance at an undergraduate program resulting in a bachelors degree.(Hacker v. Hacker, 137 Misc 2d 819 [Sup. Ct. New York County 1987]); (Patamoussis v Leonardos, 2011 NY Slip Op 52097[U], [Sur Ct, Kings County 2011];Robinson v Gerny, 2007 NY Misc. LEXIS 4787 [Sup Ct, Suffolk County June 19, 2007]).

As to defendant's request to list and sell the former marital residence, the defendant offers no proof of an undergraduate school graduation or degree obtained by his daughter which would trigger the sale of the former marital residence.

With respect to defendant's child support obligations, Article IX of the parties Stipulation states the father is obligated to pay monthly child support until her emancipation as the parties defined.

The stipulation sets forth: "Emancipation" of each child as used in this Stipulation shall be deemed to have occurred upon the earliest happening of any of the following events: 1) The child attaining the age of 21 years unless the child is pursuing a reasonably continuous course of college education leading to an undergraduate degree at an accredited college or university or other alternative post-high school education, in which event emancipation shall not take place until the child obtains an undergraduate degree or completes said alternative post-high school education, but in no event later than the child's 22nd birthday; 2) Death of the child or the parent; 3) Entry into the Armed Forces of the United States, to continue only so long as the child is a member of the Armed Forces before attaining the age of majority, so that in the event of discharge before attaining majority, the child shall be deemed not to have been fully emancipated; 4) Marriage of the child, even though such marriage may be void or voidable; 5) Permanent residence away from the residence of the Mother. A residence at boarding school, college, summer camp or summer vacation is not to be deemed a residence away from the residence of the parties sufficient to constitute emancipation; or 6) The child engaging in full-time employment so that the child is self-supporting upon and after attaining the age of 18, except that engaging in part-time or sporadic employment by the child shall not constitute emancipation and engaging in full-time employment during vacation and/or during summer periods by the child shall not be deemed emancipation.

In his application the Father has asserted that the child is emancipated pursuant to paragraph 6, alleging she is employed full time and is self supporting.

Emancipation can occur where a child is gainfully employed child and is fully self-supporting and economically independent. The parties may provide for emancipation contingencies in a written agreement or stipulation (Thomas B. v Lydia D., 69 AD3d 24 [1st [*5]Dept 2009]). The issue of emancipation is significant because a finding of emancipation terminates the parental obligation of support (Bailey v Bailey, 15 AD3d 577 [2nd Dept 2005]). A review of the cases that have addressed this issue shows each one using the child's "economic independence" as the test (Alice C. v Bernard G.C., 193 AD2d 97 [2nd Dept. 1993]. The Court can find emancipation where a child is economically independent and working full time and uses his or her earnings to meet all personal expenses, including car insurance payments and telephone charges, voluntarily contributed modest sums toward room and board (Thomas B. v Lydia D., 69 AD3d 24 [1st Dept 2009]).

There is no proof of that level of independence for T.L. set forth by the Defendant in this case. The Court cannot, on the proof presented, find that there has been an emancipation event triggering a reduction or suspension of the his child support obligation.

As to the Plaintiff's request for attorneys fees. Plaintiff argues that she is entitled to attorneys fees incurred in having to respond to Defendant's petition in Family Court, now before the undersigned by stipulation, as well as his motion filed in Supreme Court. Defendant does not oppose the request on the merits, but only asks the court to defer it due to his filing a plenary action. There is no motion for a stay.

Conclusion

Based on the proof and arguments presented, the court finds that the father has failed to demonstrate that the parties child, T.L., is emancipated or that she graduated from an undergraduate school.

Based on the foregoing, those portions of the father's motion seeking to direct the sale of the parties former marital residence is Denied;

Furthermore, the motion to declare the parties' daughter emancipated is Denied; and

The motion to terminate the defendant's child support obligations is Denied.

Upon a showing of good cause and there being no opposition from Ex-Husband, plaintiff's motion seeking counsel fees is Granted;

It is hereby

ORDERED, that Ex-Husband is directed to pay the sum of sum of $4178.00 for attorneys fees incurred in the proceeding initiated in Family Court and $5,750.00 for the fees incurred in the motion initiated Supreme Court. He is directed to pay these sums to the Ex-Wife as and for counsel fees within sixty (60) days of service of this Decision and Order with Notice of Entry; and it is further

ORDERED, that if payment of legal fees is not made as directed herein, the Clerk of the County of Nassau, upon payment of all appropriate fees shall enter judgment in favor of Ex-Wife as against Ex-Husband upon presentation of this Order together with an Affirmation of Non-Compliance.

All other relief requested not specially addressed herein, is hereby DENIED.

This constitutes the DECISION AND ORDER of this Court.

Dated: May 1, 2026

Mineola, New York