Conrad v. Conrad , 57 A.D.2d 671 ( 1977 )

Appeal from an amended order of the Family Court of Greene County, entered October 8, 1976, which denied petitioner’s application to modify a prior order of child support dated May 8, 1972. By order dated May 8, 1972 the petitioner was directed to pay $25 per week for the support of his then 15-year-old daughter. Since that time, the petitioner has lost his employment as a truck driver; however, he is self-employed and has substantial assets without any substantial indebtedness. The finding of the Family Court that the petitioner failed to establish a financial inability to pay support is not against the weight of the evidence. The petitioner further contends that because the child is now out of high school and in college he is relieved from any obligation of support for a child over the age of 18. However, he concedes that he is liable unless his daughter is emancipated (Domestic Relations Law, §§ 2, 31, subd 3; § 32, subd 2). The record does not demonstrate that the daughter became emancipated from her legal custodian, her mother, or that she is financially independent. Assuming that the conduct of the daughter could be a basis for relieving the petitioner from the terms of the order of May 8, 1972 (cf. Johanny v Johanny, 41 AD2d 568), the present record does not establish any such conduct (see Matter of Roe v Doe, 29 NY2d 188). Since the petitioner is not being required to pay tuition or otherwise provide a college education for his daughter (although indirectly his support will aid the child in attending college) his contention that as a matter of law he need not provide a college education has no merit. Order affirmed, with costs. Kane, J. P., Mahoney, Main, Larkin and Herlihy, JJ., concur.