DRAKE V. DRAKE
89 Ad.2d 207, 455 N.Y.S.2d 420 (1982)
NATURE OF THE CASE: Dorothy (C), child, appealed a grant of summary judgment for Richard
(F), father, for C's claim for support arrearages. F appealed a grant of summary judgment
for C with regard to future payments and the sums owed pursuant to the agreement's
escalation clause.
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.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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