Opinion
May 31, 1996
Appeal from the Erie County Family Court, Rosa, J.
Present — Lawton, J.P., Wesley, Callahan, Balio and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum:
Respondent appeals from an order denying his objections to the order of the Hearing Examiner directing him to pay $136 biweekly in child support for his daughter, effective August 15, 1993. We reject the contention of respondent that his daughter is emancipated. The record establishes that the daughter, who lived with petitioner, was employed 30 hours a week for a few months to save money for college, which she planned to attend on a full-time basis beginning in January 1995. From our review of the record, we conclude that the daughter is not emancipated ( see, Matter of Eggert v. Simpson, 224 A.D.2d 958; Matter of Jaffee v Jaffee, 202 A.D.2d 264, 264-265; Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97, 105), and, therefore, that termination of respondent's statutory duty to support the daughter to age 21 on that basis is not warranted.
The Hearing Examiner, however, should have made the order of support retroactive only to the date on which the modification petition was filed, i.e., June 6, 1994 ( see, Family Ct Act § 449; see, e.g., Matter of Eggert v. Simpson, supra). Therefore, we modify the order by sustaining in part respondent's objections to the order of the Hearing Examiner and providing that the order of the Hearing Examiner be retroactive to June 6, 1994.