Opinion
November 14, 1955.
On November 29, 1944, plaintiff obtained a judgment of separation against defendant on the ground of abandonment and nonsupport. The judgment provided that defendant pay $25 a week for the support of plaintiff and the then infant daughter. There were various modifications of the judgment, the final one being on February 18, 1954, at which time defendant was directed to pay $165 a week for the support of plaintiff and the then infant daughter. On December 16. 1954, the daughter became of age. In May, 1955, defendant moved to modify the amended judgment by eliminating that part of the $165 a week which is allocable to the support of the daughter on the ground that she had become of age. Defendant's motion was denied, and plaintiff's cross motion for an allowance for her counsel was granted. Order modified by striking therefrom the first ordering paragraph and remitting defendant's motion to modify the judgment to Special Term for the taking of testimony as to the financial condition of the parties. As so modified, order affirmed, without costs. Defendant may not be compelled to support his child after she became twenty-one, in the absence of a showing of unusual circumstances. ( Lair v. Lair, 276 App. Div. 775.) The fact that the child is attending college is not an unusual circumstance within the meaning of this rule. ( Halsted v. Halsted, 228 App. Div. 298.) However, the fact that the child is over twenty-one does not mean that defendant is automatically entitled to a reduction of the total amount payable for the support of plaintiff and the daughter. In Malamat v. Malamat ( 264 App. Div. 795) and Welton v. Welton ( 260 App. Div. 876), the right to the reduction of alimony sought by the father because of the emancipation of one of the children was held to be offset by a change in circumstances due to the increased cost of maintenance of the other child. In Barker v. Barker (45 N.Y.S.2d 809), it was held that, despite the emancipation of the children, the circumstances required that the amount formerly paid for the wife and children should be paid solely for the wife. Testimony should be taken of the financial condition of the parties to determine whether, on the basis of the present needs of plaintiff and the present financial condition of defendant, the amount payable for the support of plaintiff and the daughter should be modified. The counsel fee to plaintiff's attorney to oppose defendant's motion was proper. Nolan, P.J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.