Drake v. Drake

89 Ad.2d 207, 455 N.Y.S.2d 420 (1982)

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Nature of the Case

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Facts

In 1963 F and M entered into a separation agreement later incorporated, but not merged, in a divorce decree. F was to make periodic payments to M for the support of five children, whose custody remained in M. The agreement also provided for escalated payments of child support as F's earnings increased. Payments were to continue until each child reached the age of 21 years, died, became self-supporting, or married and were to be reduced according to a fixed schedule upon the happening of the expressed contingency. C is the only child who has not reached the age of 21 years and is presently a full-time college student. C moved from M's house to that of a friend and requested F to send the support payments directly to her. F concluded that she was emancipated and ceased making any support payments. C learned for the first time of the terms of her parents' separation agreement, including the escalation clause, and commenced the instant action seeking back payments for the preceding six years, escalated to reflect R's earnings which were now substantially greater than in 1963. C also sought an order directing F to make support payments to her as required by the agreement until she reaches the age of 21, marries, dies, or becomes self-supporting. The court held that C could not recover sums due prior to the commencement of the action, but that she may recover sums falling due thereafter, including sums due pursuant to the escalation clause in the agreement. Both parties appeal.