McGrath v. McGrath

Appellate Division of the Supreme Court of New York

McGrath v. McGrath

174 A.D.2d 368, 571 N.Y.S.2d 213, 1991 N.Y. App. Div. LEXIS 7964

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 11, 1991

StatusPublished

This text of 174 A.D.2d 368 (McGrath v. McGrath) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McGrath v. McGrath, 174 A.D.2d 368, 571 N.Y.S.2d 213, 1991 N.Y. App. Div. LEXIS 7964 (N.Y. Ct. App. 1991).

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Opinion

—Order, Supreme Court, New York County (Elliott Wilk, J.), entered May 17, 1990, which, inter alia, denied [369]*369defendant’s application for an order declaring the parties’ son emancipated, and for reimbursement of school expenses paid by defendant retroactive to July 20, 1988, unanimously affirmed, without costs.

The parties’ separation agreement, which survived a judgment of divorce, sets forth the support obligations of each parent to their two children. Under the agreement, both parties are required to pay their children’s school expenses. In addition, while defendant retains custody of the children, plaintiff is required to pay defendant support and maintenance of each child until their emancipation. Another section of the agreement provides that a child is deemed emancipated by electing to permanently reside with plaintiff. That section defines the terms under which a child permanently resides with plaintiff and states that plaintiff must continue to pay defendant child support for a three month period after the child’s permanent residence with plaintiff commences. Finally, the agreement states that the obligations assumed by the husband and the wife for each child terminate upon the emancipation of the children.

We agree with the IAS court that, contrary to defendant’s construction of the agreement, the parties intended that plaintiff would not be required to pay defendant support for a child whose support obligations plaintiff assumed by virtue of the child’s permanent residence with him, but that such would not affect the obligation for educational expenses here in issue. Defendant’s construction of the agreement would violate the public policy against parents contracting away their parental responsibilities, since by her interpretation of the agreements, all parental obligations would terminate by virtue of the child’s permanent residence with plaintiff (see, Matter of Hoppl v Hoppl, 50 AD2d 59, affd 40 NY2d 993). Concur—Murphy, P. J., Milonas, Ellerin, Wallach and Smith, JJ.

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—Order, Supreme Court, New York County (Elliott Wilk, J.), entered May 17, 1990, which, inter alia, denied [369]*369defendant’s application for an order declaring the parties’ son emancipated, and for reimbursement of school expenses paid by defendant retroactive to July 20, 1988, unanimously affirmed, without costs.

The parties’ separation agreement, which survived a judgment of divorce, sets forth the support obligations of each parent to their two children. Under the agreement, both parties are required to pay their children’s school expenses. In addition, while defendant retains custody of the children, plaintiff is required to pay defendant support and maintenance of each child until their emancipation. Another section of the agreement provides that a child is deemed emancipated by electing to permanently reside with plaintiff. That section defines the terms under which a child permanently resides with plaintiff and states that plaintiff must continue to pay defendant child support for a three month period after the child’s permanent residence with plaintiff commences. Finally, the agreement states that the obligations assumed by the husband and the wife for each child terminate upon the emancipation of the children.

We agree with the IAS court that, contrary to defendant’s construction of the agreement, the parties intended that plaintiff would not be required to pay defendant support for a child whose support obligations plaintiff assumed by virtue of the child’s permanent residence with him, but that such would not affect the obligation for educational expenses here in issue. Defendant’s construction of the agreement would violate the public policy against parents contracting away their parental responsibilities, since by her interpretation of the agreements, all parental obligations would terminate by virtue of the child’s permanent residence with plaintiff (see, Matter of Hoppl v Hoppl, 50 AD2d 59, affd 40 NY2d 993). Concur—Murphy, P. J., Milonas, Ellerin, Wallach and Smith, JJ.

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Bluebook (online)

174 A.D.2d 368, 571 N.Y.S.2d 213, 1991 N.Y. App. Div. LEXIS 7964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgrath-v-mcgrath-nyappdiv-1991.

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