Ruhsam v. Ruhsam

515 P.2d 1199, 21 Ariz. App. 101, 1973 Ariz. App. LEXIS 824
CourtCourt of Appeals of Arizona
DecidedNovember 14, 1973
Docket2 CA-CIV 1429
StatusPublished
Cited by6 cases

This text of 515 P.2d 1199 (Ruhsam v. Ruhsam) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ruhsam v. Ruhsam, 515 P.2d 1199, 21 Ariz. App. 101, 1973 Ariz. App. LEXIS 824 (Ark. Ct. App. 1973).

Opinion

OPINION

HOWARD, Judge.

The subject of this appeal is a post-divorce order directing appellant to continue child support payments for his three children until each “of the said children reaches the age of twenty-one or become emancipated by marriage, or dies.” It was appellant’s position that the recent legislative change in the age of majority to eighteen years of age relieved him of an obligation to support his children beyond such age.

The parties were divorced in 1970 and incorporated into the decree and made a part thereof was a 1969 agreement regarding their property and children. The agreement provided that appellant was to pay $100 per month support for each of the three children of the parties until “each of said children is emancipated by marriage, majority or by the death of each such child.” The age of majority at the time of the agreement was twenty-one years of age. In August, 1972, the legislative change in the age of majority (from 21 to 18, with certain exceptions not applicable) became effective. Appellant ceased payment of support for one child who was borri in November, 1953, believing he was no longer obligated to support this child since he had achieved majority by legislative fiat. Appellee then instituted show cause proceedings, alleging that as of August 1, 1972, appellant failed to pay child support in the amount of $100. A hearing was duly held at the conclusion' of. which the order appealed from was entered.

The question before us is whether the 1972 amendment of A.R.S. § Í-^ISÍM) 1 terminated an order entered prior to August 13, 1972, for the support of a child who had attained the age of 18 years. Other jurisdictions which have considered the question have reached different conclusions. Since this question is one of first impression in this state, we believe a discussion of the’rationale of other state decisions is appropriate.

The appellate courts of the State of Kentucky have distinguished between situations where the duty of support was predicated upon a contract between the parties and those where it was not. In the case of Young v. Young, 413 S.W.2d 887 (Ky.App.1967), the divorce decree made no mention of child support and the court held that in the absence of a contract, there was no duty to support beyond 18, the new age of majority, notwithstanding the age of majority at the time of the decree was 21. In the case of Blackard v. Blackard, 426 S.W.2d 471 (Ky.App.1968), the court held that since there was no evidence of an intent that payments would continue to 21, the then fixed age of majority, there was no duty to support beyond 18 years. In the case of Wilcox v. Wilcox, 406 S.W.2d 152 (Ky.App.1966), the parties’ agreement provided for support until the child reached the age of .majority. The court held that in order to construe the agreement, it was necessary to ascertain the parties’ intention at the time it was entered into. It concluded that since the statute, *103 providing that the age of majority was 21, was in effect at the time of the contract and became a part of it, the word “majority” meant 21. In Collins v. Collins, 418 S.W.2d 739 (Ky.App.1967), a like conclusion was reached. See also, Kirchner v. Kirchner, 465 S.W.2d 299 (Ky.App.1971); Worrell v. Worrell, 489 S.W.2d 817 (Ky.App.1973).

The Tennessee Supreme Court in the 1972 case of Garey v. Garey, 482 S.W.2d 133, was called upon to construe a divorce decree incorporating a property settlement agreement which provided for support of a child “until 21 years or is otherwise emancipated”. The court held that the change in the age of majority from 21 to 18 constituted emancipation of the child from parental control and therefore the parents were relieved of a duty to support beyond the age of 18.

A similar divorce decree was involved in the case of Mason v. Mason, 84 N.M. 720, 507 P.2d 781 (1973). The decree provided for support for the minor children “during the respective minority of said children or until they earlier become married or otherwise emancipated”. The New Mexico Supreme Court stated that it would be inclined to follow the Kirchner and Collins holdings if the parties’ agreement referred to “minority” alone. It analyzed the parties’ agreement:

“ . . . Clearly this language cannot be said to be synonymous with twenty-one years of age, or to imply an intent on the part of the parties that the payments on - behalf of each child should continue until that child attained the age of twenty-one years.
Minority, in the sense of our concern here, is a legal status conditioned primarily upon age. [Citations omitted]. However, the existence of this status is not conditioned entirely upon age, and certainly not in the sense in which it was used in the stipulation. It is clear that the parties intended plaintiff should be responsible for support payments on behalf of a particular child only so long as the child should remain unmarried or otherwise unemancipated and then only until he or she attained the age of majority. It was plaintiff’s duty under the law to support his children during their minority. [Citations omitted]. However, marriage and other conditions may earlier emancipate a child from his or her status of minority, and thus relieve a parent from the legal obligation of support before the age of majority is attained by the child.” 507 P.2d at 784.

The court held that two of the children were emancipated by the statutory revision of the age of majority and therefore, the father was relieved by the express language of the parties’ agreement from making further support payments to the mother on behalf of these two children.

In the cases of Rosher v. Superior Court, 9 Cal.2d 556, 71 P.2d 918 (1937) and State v. Kiessenbeck, 167 Or. 25, 114 P.2d 147 (1941), the question arose as to the effect of a statutory amendment raising the age of majority from 18 to 21 years. In each case the court held that the father’s obligation to support did not terminate at age 18. In Rosher, supra, the court rejected the father’s argument that he had a vested right to be immune from payment of support:

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Bluebook (online)
515 P.2d 1199, 21 Ariz. App. 101, 1973 Ariz. App. LEXIS 824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruhsam-v-ruhsam-arizctapp-1973.