IN RE: Ellen MACAULEY

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Ellen MACAULEY, Respondent, v. Wayne DUFFY, Appellant.

Decided: September 16, 2002

NANCY E. SMITH, J.P., CORNELIUS J. O'BRIEN, HOWARD MILLER and BARRY A. COZIER, JJ. Prokop & Prokop, Setauket, N.Y. (Joseph W. Prokop of counsel), for appellant. Robert J. Cimino, County Attorney, Central Islip, N.Y. (Bernard T. McSorley of counsel), for respondent.

In a support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Dounias, J.), entered November 20, 2000, which denied his objections to an order of the same court (Livrieri, H.E.), entered July 31, 2000, which, inter alia, dismissed his petition for termination or modification of his child support obligation.

ORDERED that the order entered November 20, 2000, is modified, on the law, by deleting the provision thereof denying the father's objections to the order entered July 31, 2000, and substituting therefor a provision granting the objections and granting the petition to the extent of terminating the father's child support obligation as of June 26, 1997, with respect to the parties' son, and modifying the father's child support obligation with respect to the parties' daughter by directing him to pay $10.00 per week for the period commencing April 10, 2000, up to and including June 1, 2000, and thereafter terminating the father's child support obligation with respect to the parties' daughter;  as so modified, the order entered November 20, 2000, is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for further proceedings in accordance herewith.

 By the operation of the parties' judgment of divorce the children became emancipated upon obtaining full-time employment at the age of 18.   The parties' son became emancipated upon obtaining full-time employment in 1997.   Therefore, no support arrears have accrued with respect to the parties' son since the father's obligation to pay child support ended, as a matter of law, upon the son's emancipation. Accordingly, since the relief sought by the mother in her petition involved periods subsequent to 1997, she is not entitled to child support or arrears as to the parties' son, and the arrears and the money judgment entered with respect thereto should be adjusted to reflect that the father owes nothing for any time period after the son's emancipation (see Matter of Dox v. Tynon, 90 N.Y.2d 166, 659 N.Y.S.2d 231, 681 N.E.2d 398;  Domestic Relations Law § 244).   The amount of unsecured child support arrears from June 23, 1998, to October 1, 1999, should thus be reduced from $6,200 to $3,100.

 The order of support with respect to the parties' daughter terminated upon her emancipation as of June 1, 2000.   Moreover, contrary to the mother's contention, the father established an adequate basis for a downward modification of his child support obligation prior to June 1, 2000, with regard to the parties' daughter as a result of his serious medical condition (see Matter of Yeager v. Yeager, 266 A.D.2d 223, 697 N.Y.S.2d 170;  cf.   Matter of King v. King, 193 A.D.2d 800, 598 N.Y.S.2d 278).   However, because the father failed to move for a downward modification or termination of support with respect to the parties' daughter before arrears began to accrue, he is obligated to pay arrears until the date of his petition, April 10, 2000 (see Matter of Dox v. Tynon, supra).   Accordingly, the father's support obligation regarding his daughter is reduced to $10.00 per week commencing from April 10, 2000, until June 1, 2000.   Therefore, the father owes child support arrears to the mother for that period in the amount of $10 per week.

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