The following papers were read on these motions: Order to Show Cause, Affirmation and Affidavit in Support and Exhibits 1 Notice of Cross-Motion, Affirmation and Affidavit in Opposition and in Support and Exhibits 2 Affidavit in Opposition and in Reply and Exhibits 3 Affidavit in Reply 4 DECISION & ORDER PRELIMINARY STATEMENT Defendant (“Ex-Husband”) moves by Order to Show Cause for an order: (1) deeming the parties’ son, Edward DeNatale, age 19, emancipated by his enrollment in the United States Naval Academy; (2) determining that pursuant to the terms of the parties’ Stipulation of Settlement dated December 29, 2017 the parties’ daughter, Campbell DeNatale, date of birth September 15, 1998, by her graduation from college, securing full-time employment and becoming self-supporting obtained an Emancipation Event effective July 13, 2020; (3) Pursuant to CPLR 3126, imposing such sanctions against the Plaintiff as a result of her frivolous conduct regarding refusal to agree that the parties’ son, Edward, has obtained an Emancipation Event as set forth in the parties’ Stipulation of Settlement dated December 29, 2017. Plaintiff (“Ex-Wife”) opposes the Ex-Husband’s requests and cross moves for an order (a) determining the arrears owed to the Ex-Wife by the Ex-Husband for child support for the parties’ son and establishing same in the sum of $4,960.00 and directing payment thereof; or in the alternative, upon failure to pay same, directing entry of a money judgment in the sum of $4,960 representing child support arrears; (b) granting Ex-Wife the sum of $15,000 for counsel fees disbursements, and expenses in connection with the instant action. Pursuant to a So Ordered Stipulation entered on October 26, 2020, the parties resolved the issue of their daughter, Campbell’s, emancipation. Therefore, same shall not be addressed herein. BACKGROUND The parties were divorced pursuant to their Stipulation of Settlement dated December 29, 2017 (“Stipulation”) which incorporated but did not merge into their Judgment of Divorce (“Judgment”). The parties opted out of provisions such as the Ex-Wife receiving maintenance irrespective of co-habitation or re-marriage within a certain time period and that maintenance would not be deducted from Husband’s income for determination of child support. In addition, the parties agreed that the child support obligation would continue through the age of 22 even if the Children had completed college. The parties further agreed that despite the Ex-Husband’s substantial income over the cap, ($386,783.90), the parties agreed not to apply the statutory percentage, but instead, Ex-Husband would only pay an additional $1,044.17. Ex-Wife argues that these concessions were made within the context that the parties would provide for the Children beyond the age of 21. Ex-Husband argues that their son, Ned, entered the United States Naval Academy in Annapolis, Maryland (“USNA”) and became a midshipman as of September 2020, and he continues in that position today. Ex-Husband argues that pursuant to the Uniform Code of Military Justice, Ned is on active duty status and therefore emancipated based upon the terms of the Stipulation. Ex-Wife argues that USNA is a college, and although Ned will be exposed to experiences that reach beyond the typical college experience, his experience will be similar to that of a civilian college. Ex-Wife contends that Ned is mandated to attend classes, complete assignments and homework, and earn a degree identical to the degree he would earn at a civilian college. In addition, Ex-Wife argues that Ned has the opportunity to join and participate in extracurricular clubs and honor societies that recognize his academic achievements, all while fulfilling educational requirement and credits. She also argues that by its own definition, the USNA is an undergraduate college. Ned will attend a graduation ceremony at the end of the 4 years. Ex-Wife further contends that the Uniform Code of Military Justice does not dictate the parties’ Stipulation. She further counters the Ex-Husband’s argument and states that she still has expenses for Ned including medical insurance coverage and unreimbursed medical expenses, clothing, sneakers, personal hygiene products, cell phone, electronics and haircuts. DISCUSSION The Stipulation sets forth in pertinent parts as follows at Article E: 3. The Husband shall pay to the Wife the sum of $4,500.00 per month as and for child support for the parties; three (3) children commencing on the first day of the month following the execution of this Stipulation and continue each month thereafter as set froth and subject to the allocations contained in paragraph 4g below… 4.g. As to the income above the cap, said income $386,783.90 and the parties have not applied the statutory percentage of 29 percent. Instead, the parties have agreed that the Husband shall pay the additional sum of $1,044.17 per month, bringing his total agreed upon child support obligation to $4,500.00 per month allocated between the children as follows: $54,000 per year ($4,500 per month) for three unemancipated children; $46,552 per year ($3,879 per month) for two (2) unemancipated children and $31,665 per year ($2,639 per month) for one unemancipated child. m. The Husband’s obligation to pay child support shall continue until the child attains the age of twenty-two (22) regardless of whether a child is still in college or has completed college. Thus, by way of example, should Campbell graduate college at the age of 21, child support for her shall continue through age 22. Emancipation shall also include: Marriage (even though such a marriage may be void or voidable and despite any annulment of it); Permanent residence away from the residence of the Mother and the Father. A residence at boarding school, camp, or college is not to be deemed a residence away from the residence of the mother and, hence, such a residence at boarding school, camp, or college is not an Emancipation Event; Death of the child (God forbid); Entry into the armed forces of the United States (provided that the Emancipation Event shall be deemed terminated and nullified upon discharge from such forces, and, thereafter, the period shall be the applicable period as if such an Emancipation Event by reason of the entry had not occurred); Engaging in full-time employment upon and after the attaining by a child of 18 years of age…. It is clear from the Stipulation that the parties carefully carved out emancipation events and the Stipulation as a whole must be looked at to gleam the intent of same as the parties were creative with their settlement agreement as it pertains to the payment of child support and maintenance. As set forth above, the Ex-Husband argues that this matter can be simply decided based upon the alleged emancipation of Ned, as he contends that Ned’s attendance at USNA is his entry into the armed forces of the United States. Ex-Wife contends that the decision is easily made based upon the clear language of the Stipulation and that there is no need to look any further into any military codes or definitions. Ex-Husband contends that once Ned entered the USNA, he became a midshipmen and is deemed on “active duty” in the United States military. 38 U.S. Code sec. 1965, defines “active duty” as follows: (1)(D) full-time duty as a cadet or midshipman at the United States Military Academy, United States Naval Academy, United States Air Force Academy, or the United States Coast Guard Academy. There is no argument between the parties that Ned is a midshipman at USNA, thereby, by definition, on active duty pursuant to 38 U.S. Code Sec. 1965. The Uniform Code of Military Justice, Chapter 47 sets forth as follows, in pertinent parts: Sec. 801 Art. 1. Definitions (7) The term “midshipman” means a midshipman of the United States Naval Academy and any other midshipman on active duty in the naval service. Sec. 802. Art. 2. Person subject to this chapter (a) The following persons are subject to this chapter: (2) Cadets, aviation cadets, and midshipmen. In addition, on the first day at the USNA, Ned reported for Induction Day and took an Oath of Office which is as follows: I, ___, having been appointed a midshipman in the United States Navy, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God. Further still, prior to Induction Day, the midshipmen execute an Agreement to Serve which outlines the service obligation and is signed and returned to the USNA. It also requires the consent of parents or guardians if the midshipman is a minor. The Agreement sets forth that the midshipman will: — complete the four-year course of instruction at the Naval Academy; — accept an appointment and serve as a commissioned officer in the Navy or Marine Corps, and serve on active duty for at least five years immediately upon graduation; — serve in an appropriate enlisted grade on active duty for up to four years, or reimburse the United States for the cost of education received at the Naval Academy if you do not fulfill the conditions agreed to above. The USNA describes itself as “the undergraduate college of our country’s naval service”. The Naval Academy prepares young men and women to become professional officers and leaders of sailors and Marines. Naval Academy students are midshipmen on active duty in the U.S. Navy. They attend the Academy for four years, graduating with bachelor of science degrees and commissions as ensigns in the Navy or second lieutenants in the Marine Corps. Naval Academy graduates serve at least five years in the Navy or Marine Corps. It is important to note that although Ned agreed to serve 5 years in the Navy or Marine Corps., those years are not inclusive of his time at the USNA. In addition, it is clear that he accepts the appointment, which is made after graduation. In the case of Beekman-Ellner v. Ellner, 296 AD2d 404 (2d Dept. 2002), the Appellate Division upheld the decision of the Family Court which terminated child support “[s]ince the parties’ child enrolled in full-time training duty at the U.S. Naval Academy at Annapolis and his life at Annapolis was largely controlled by the government, which also provided for the bulk of his material needs, he was clearly engaged in ‘active military service’ to render him emancipated” (citing 10 USC Sec 101[d][1]). Ex-Husband argues that the facts and circumstances of this case as they compare to Ned’s are almost identical. This case does not provide any insight into the agreement of the parties. Similarly, in Zuckerman v. Zuckerman, 154 AD2d 666 (2d Dept. 1989), the Appellate Division held that the parties’ son “became emancipated when he entered West Point.” In Zuckerman, the parties’ stipulation obligated the father 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. The Appellate Court found that pursuant to 10 USC Sec 3075[b][2]1, upon entering West Point, the minor child “is considered a member of the regular army and subject to extensive governmental control, which is inconsistent with a parent’s control and support of a child.” The Appellate Court further explained that the child “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.” Ex-Wife contends that the USNA’s own introduction handbook dictates that it is an undergraduate college. Her main argument lies with the Stipulation, and not Federal codes or handbook descriptions, as the parties manifested a clear intent that attendance at college not be determinative of emancipation. She contends that the intent of the parties is unambiguous and clear from the four corners of the Stipulation, to wit: a child’s college attendance was not intended to be an emancipation event. She therefore argues that the emancipation event in the Stipulation of “entry into the armed forces of the United States” cannot fairly be interpreted to include attendance at a four-year military college where the parties evinced such a clear intent that attendance at college not be considered an emancipation event. Although she acknowledges that Ned is provided a stipend by the USNA of $1,100 per month, she argues that there are deductions for “laundry, barber, cobbler, activities fees, and other service charges” which leaves Ned with only $125.00 per month. She sets forth the numerous financial responsibilities Ned would have to cover with his $125.00 monthly net funds such as insurance co-pays, car insurance, spending money when home, spending money when not at the USNA campus, non-uniform clothing, sneakers, underwear, toiletries, cell phone and other electronics, and other necessities. Therefore, she contends that Ned simply cannot be deemed self supporting as even the Ex-Husband claims to provide Ned additional funds. Ex-Wife further contends that the Military Codes and citations provide no insight on whether it was the intent of the parties that attendance at a four-year military college be an emancipation event. She also argues that whether a child is emancipated is governed by the State of New York, and not federal law. Ex-Wife contends that the cases cited above do not provide enough factual background to conclude they are directly on-point. Ex-Wife does agree that there are only two Appellate Division cases on this fact specific issue, both of which are addressed above. It is well established that a “stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract, the terms of which are binding on the parties.” Moss v. Moss, 91 AD3d 783 (2d Dept. 2012). Moreover, “[i]n interpreting a marital contract, a court should construe it is such a way as to ‘give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.’” Id at 784 (citing Hyland v. Hyland, 63 AD3d 1106 (2d Dept. 2009). Furthermore, the Second Department has held “the court should determine the intent of the parties from within the four corners of the contract without looking to extrinsic evidence to create ambiguities.” Wider Consol., Inc. v. Tony Melillo, LLC, 107 AD3d 883 (2d Dept. 2013). This Court can not analyze the facts of this case as one solely reliant upon the language in the Stipulation, or the intent of the parties as the Ex-Wife proposes. The crux of the issue regarding the emancipation of a child is whether that child is self supporting and no longer needs the financial assistance of that child’s parents. When looking at the language of the Stipulation, all of the emancipation events listed would be the result of Ned being self supporting. There can be no doubt, that a parent’s obligation to financially support their child ends if that child gets married. There is no doubt that a parent’s obligation to financially support their child ends if that child resides away from both parents, on their own, so long as they are not at boarding school or college, as the child would be financially responsible to support such living arrangements. Of course, there would be exceptions if the parent(s) agree to continue to support that child living elsewhere, as if a parent chooses to pay for the child’s housing, despite being employed, or no longer in school. That is not the situation here. Clearly, a parent’s obligation to financially support their child ends if that child becomes gainfully employed at an age over 18. Again, it is because the end result is that said child would be self supporting. The sticking issue in this case, is the emancipation event listed in the Stipulation as “entry into the armed forces”. There can be no doubt, that if a child under the age of 21 (where pursuant to New York State law is the age upon which parents are still financially obligated to support their children), enters the armed forces, they are employed on a full time basis. Here, Wife argues that Ned’s financial situation is akin to a student attending a civilian college, on a full scholarship, who procures a part time job to help pay for odds and ends. There is no dispute that Ned is one of the elite few to gain entrance into the prestigious USNA. There is no dispute that all fees associated with Ned’s attendance/enrollment in the USNA is paid in full by the United States. There is no dispute that Ned took an Oath and committed to five years of service in the United States Navy, after graduation. However, the five years of service are not inclusive of his time at USNA. Further, he agreed to become an officer and accept his assignment, after graduation. There is also no dispute that Ned receives $1,100.00 per month from the USNA, with deductions being made for certain necessities. As set forth above, according to the Ex-Wife, after those deductions, Ned nets only $125.00 per month. To weigh the facts of this case, the Court must look at the language of the Stipulation, as set forth above, the relevant case law and understand the legislative intent of the CSSA statute. Here, the Ex-Husband agreed to be obligated to pay child support through the age 22, inclusive of the Children’s time at college with an exception if the Child elected military service. It is clear that the intent based upon this language is that child support ends if the Child elected military service, instead of college. The Stipulation is silent as to the current situation where Ned is attending a military academy. The Stipulation clearly envisions that the first priority of the parents was to have the Children obtain a college degree and the Ex-Husband agreed to support the Children throughout that process. That was clearly the bargain based upon the reduced amount in child support. It is clear that the New York State Legislature has always wanted children attending college supported by their parents, hence the child support cutoff age of 21. Further still, the Legislature enacted the Excelsior Scholarships which makes college tuition free or low cost depending the individual’s financial circumstances and factors. Despite these scholarships, the Legislature did not reduce the age of required child support based upon said scholarships. There is a clear recognition that the Legislature wants parents to support their children until 21, even if they have no college costs, as is the case here with Ned. There is no dispute that many of Ned’s necessities are provided for by the USNA. However, it is questionable whether the free tuition and funds provided enable Ned to be self supporting if both of his parents’ financial obligations were to be terminated. If the Ex-Husband and/or Ex-Wife do not pay for civilian clothing, toiletries, a cell phone, food money when away from USNA, or provide him money to come home during his 5 weeks when he is permitted to be away from the USNA, would he be able to pay for these everyday items and necessities? Although the Stipulation is clear that attendance at a college is not an emancipation event, it is also clear that enlistment in the military is one. However, as detailed as this Stipulation is regarding child support and college, it is silent regarding whether the parties agree that attendance at a military academy such as USNA, does not constitute enlistment in the military. If the Stipulation were that specific, the Wife’s argument would have more weight. Accordingly, based upon the facts and circumstances of this case, the clear Appellate Division precedent, and the silence of the Stipulation regarding this specific issue of attendance at a military academy, the Ex-Husband’s motion to terminate child support for Ned is GRANTED. It is hereby ORDERED, that the parties’ son, Edward (Ned), is deemed emancipated. The So Ordered Stipulation sets forth in pertinent part as follows: E. The parties agree that in the event that the Court grants that branch of the Defendant’s Order to Show Cause seeking a determination that Edward has obtained an Emancipated Event (i.e., that the Court determines and/or issues an order that Edward is emancipated), the Defendant shall have a credit in the monthly amount of $1,240 (the different between monthly child support of $3,879 for 2 children and $2,639 for one child) he has paid to the Plaintiff from the date of this Stipulation and determination of his aforementioned Order to Show Cause. Said credit shall be applied to the prospective child support to be paid for Douglas at a rate of $500 per month until exhausted. ORDERED, that pursuant to the So Ordered Stipulation entered on October 26, 2020, the Ex-Husband shall have a $1,240 monthly prospective child support credit as set forth therein, at a rate of $500 per month, until his credit has been fully satisfied. Based upon the foregoing, the Ex-Husband’s request for counsel fees and sanctions is DENIED. Likewise, Ex-Wife’s request for counsel fees is DENIED. All other requested relief, not specifically addressed herein, is hereby DENIED. This constitutes the Decision and Order of this Court. Dated: January 19, 2021
