Ellis v. Ellis

640 P.2d 1024, 292 Or. 502, 1982 Ore. LEXIS 717

• Court: Oregon Supreme Court
• Decided: February 10, 1982
• Docket: CA 18634, SC 27942
• Status: Published

Opinions

TANZER, J.

This is an appeal from a denial of a father’s motion to modify a 1967 decree of dissolution by declaring his oldest daughter emancipated and by granting him credit for support payments which came due since her emancipation.¹ Custody had been awarded to the mother and the father was ordered to pay $60 per child per month, “for support and maintenance of said children until each child shall be twenty-one (21) years of age, self-supporting, or otherwise emancipated from the home.”²

The trial court found that the daughter had become emancipated and it terminated the father’s support obligation as to her effective on the date of filing of this motion. The father appealed, contending that his support obligation should have been terminated as of the date of the daughter’s emancipation. The Court of Appeals held that regardless of when his support obligation terminated, the mother had “waived” her rights to support payments accruing subsequent to the date of the daughter’s emancipation and modified the trial court order as requested by the father. We affirm the Court of Appeals, but on different grounds.

The parties’ oldest child graduated from high school in June of 1978 and soon thereafter moved into her own apartment, became self-supporting, and established her own credit. The trial court found her to have become emancipated and the Court of Appeals found the time of emancipation to be November, 1978. After the child had moved out and become self-supporting, the mother notified both the father and the Department of Human Resources. The father, thinking his support obligation regarding the child was terminated, ceased paying child support for her. The mother advised the department that this was alright with her and, as a result, the department stopped billing the father for support for the child.

The father commenced this proceeding in February of 1980 seeking a declaration that his support obligation for the child had terminated in November of 1978. Although the trial court found her to have been emancipated as of November, 1978, it ruled that it could terminate the father’s support obligations only back to the date this proceeding was commenced because it viewed the relief as modification of the decree. The court concluded that, despite the literal terms of the initial support decree and the mother’s acquiescence in the father’s cessation of payments, the support obligations for the child had continued to accrue into final judgments outside of its powers under ORS 107.135(2) to grant relief.

ORS 107.135(2), relating to the enforcement of support decrees, provides:

“The decree is a final judgment as to any instalment or payment of money which has accrued up to the time either party makes a motion to set aside, alter, or modify the decree, and the court does not have the power to set aside, alter or modify such decree, or any portion thereof, which provides for any payment of money, either for minor children or the support of a party, which has accrued prior to the filing of such motion.”

The enactment in 1921 of what is now ORS 107.135, by giving unpaid support payments the status of final judgments as they accrue, removed from Oregon courts the power to retroactively modify them. Poe v. Poe, 246 Or 458, 459-460, 425 P2d 767 (1967); Shelley v. Shelley, 204 Or 436, 283 P2d 663 (1955); Forbes v. Jennings, 124 Or 497, 503, 264 P 856 (1928).

ORS 107.135(2) is not applicable here because this case does not involve setting aside, alteration or modification of a decree. Despite the wording of the father’s motion, it sought only for the court to declare the extent of the father’s obligation under the decree as issued, not to modify the decree or the obligation.

The authority of a court to order child support is governed by ORS 107.105(l)(b). The statute refers only to the “minor children” of the parties, a minor child being one under 18 years of age, ORS 109.510, not married, ORS 109.520, and not emancipated, see ORS 109.555.³ The court may also order support for a “child attending school,” defined as

“* * * a child of the parties who is unmarried, is 18 years of age or older and under 21 years of age and is a student regularly attending school, community college, college or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment.” ORS 107.108(1) and (4). See further Or Laws 1981, ch 669.

A child support order has no force past the child’s period of minority, Mack v. Mack, 91 Or 514, 517, 179 P 557 (1919), and it has been held that a support obligation under the decree terminates when the child reaches either majority or an age set by the decree. See Jensen v. Jensen, 249 Or 423, 438 P2d 1013 (1968); Mallory and Mallory, 30 Or App 533, 535, 567 P2d 1051 (1977); Cupp and Cupp, 28 Or App 593, 596, 560 P2d 291 (1977); Clark, Law of Domestic Relations 513-514, § 15.3 (1968).

A support order cannot lawfully require more than the underlying statutes require or authorize. The statutory limitations of a child support obligation inhere in the decree whether stated in the decree or not because those limitations circumscribe the court’s authority to make such an order. Here, some statutory limitations are stated in the decree and some are not, but they all have effect. Because the trial court found that the child was “otherwise emancipated” as of November of 1978, then, under the terms of the initial decree, the father’s support obligation for the child terminated at that time and any support instalments on her behalf ceased accruing.

In sum, the decree only requires payment for the support of a minor child. There is no obligation under the decree to pay child support after the child is no longer minor. A judicial declaration that circumstances exist under which an obligation ceased to exist at a certain time does not “set aside, alter or modify” the decree in any respect; it merely describes the application of the decree in the circumstances.

The dissent, relying on dicta in Forbes v. Jennings, supra, suggests that the amount of a judgment based on accrued unpaid support should be capable of ministerial computation by reference to the face of the decree and the judgment docket, thus rendering extrinsic facts immaterial. The measurement of a decreed obligation cannot always be that simple. Fact-finding is sometimes necessary to determine the extent of any judgment which is based upon accrued periodic payments ordered by a decree. Numerous examples exist which affect the extent of a ripened judgment which do not appear on the face of the decree but which may be proved by one who seeks the benefit of establishing a nonapparent duration of a decree. For perhaps most obvious example, this court has held that a support obligation terminates upon the death of the obligor, Streight v. Streight, 226 Or 386, 360 P2d 304 (1961). That fact affects the number of accrued payments which comprise a judgment, but it requires proof outside the decree for there to be judicial cognizance of it. Similarly, if the decree were silent as to the birthdate of a child, then the terminal date for accrual of child support payments would be subject to proof. If a child were to die before reaching majority, no judgment would accrue thereafter and the obligor would be entitled to prove the fact of death to determine the extent of the judgment. That would also be true if a child reached majority by marriage or moved in or out of student status between the ages of 18 and 21 years. These examples demonstrate that a court may look to proof of facts extrinsic to the decree to determine the actual extent of a judgment based upon amounts accrued under a decree. To do so is to apply the decree to specific situations, not to diminish it. There is nothing inconsistent with this idea in Forbes v. Jennings, supra, Poe v. Poe, supra, or any other authority cited by the dissent.⁴

Although the mother concedes that death of a child or, perhaps, its reaching of a certain age would automatically terminate an accruing obligation, she argues that a different rule should be applied when the obligor sets up an “emancipation” defense because such a defense will generally entail more difficult fact-finding. This distinction is unpersuasive. Emancipation may not be as clear-cut a fact as death or marriage, but that is not a reason for a different rule.

Finally, much of the argument presented by the parties centered around equitable notions of estoppel and waiver, as was the Court of Appeals opinion. Given our determination that there were no such accruing instalments, we need not reach the father’s equitable arguments.

Affirmed. Costs to respondent on review.

1 The father moved for similar relief regarding the parties’ younger daughter which was denied upon a finding that she was not emancipated. We have no reason to review that finding and on review we reach no issue regarding this obligation. The mother has made no contention under Cooper v. Matheny, 220 Or 390, 392, 349 P2d 812 (1960), perhaps because the decree orders support for each child rather than for both. Our references to a child are to the older child only.

2 In 1973, the legislature changed the age of majority from 21 to 18. Or Laws 1973, ch 827, § 14. The uncodified § 84 of that Act exempted certain things from its operation. Pertinent here are subsections (2) (a) and (b):

“(a) Nothing in this Act affects * * * an order, decree or judgment entered, a right accruing, accrued or acquired, or a liability, duty or obligation incurred, before the effective date of this Act, under the law then in effect.

“(b) A reference to majority, minority, age of majority or words of similar intent in an order, judgment or decree entered before the effective date of this Act shall be considered to be to the age of majority in effect when the order, judgment or decree was entered.”

Therefore, for purposes of adjudicating the scope of this decree, we take 21 as the age of majority.

3 Courts generally exercise their authority to recognize the fact of emancipation, see Annot., Minor — Implied Emancipation, 165 ALR 723 (1946). This court has done so in the context of determining whether a son’s assets are available for the obligations of a parent. In Flynn v. Baisley, 35 Or 268, 273, 57 P 908, 45 ALR 645 (1899), we held that emancipation could be found from circumstantial evidence:

“A writing is unnecessary to evidence the emancipation of an infant, it having been held that his liberation may be established by direct evidence or implied from circumstances: [citations omitted] Nor is it necessary that the infant should abandon his home, or turn his parent out of doors, to afford proof of the latter’s relinquishment of his earnings. * * *”

The legislature has provided a procedure whereby a minor can petition for a declaration of emancipation. The statutes specify that an effect of such a declaration of emancipation is to terminate the parent-child support obligation. ORS 109.555(l)(b) and 109.010. Here, too, a judicial finding of the fact of emancipation implies that the support-dependency relationship of father and child has ended. It is true, as the dissent states, that neither the emancipation statute nor this proceeding affect minimum voting or drinking ages. Statutory requirements for those acts have no legal relevance to emancipation and parental obligations in the context of judicial enforcement of a support order.

4 The dissent also relies upon inferences drawn from ORS 107.415 which requires a custodial parent to notify a noncustodial supporting parent if a child earns income, marries or enters military service, and provides judicial authority to require “restitution” for “money paid” after a failure to provide such information. By its terms, the statute provides a means for the “restitution” by way of judgment or satisfaction of “money paid” in ignorance of those facts. Although some of the wording of subsection (2) may be ambiguous as to underlying legal assumptions, ORS 107.415 does not purport to govern whether a judgment continues to accrue when the obligation ceases to exist.