Balls v. Hackley

• Decision Date: 16 November 1987
• Docket Number: No. 870068-CA,870068-CA
• Citation: Balls v. Hackley, 745 P.2d 836 (Utah App. 1987)
• Parties: Marlon D. BALLS, Plaintiff and Appellant, v. JoAnn C. (Balls) HACKLEY, Defendant and Respondent.
• Court: Utah Court of Appeals

Page 836

745 P.2d 836

Marlon D. BALLS, Plaintiff and Appellant, v.JoAnn C. (Balls) HACKLEY, Defendant and Respondent.

No. 870068-CA.

Court of Appeals of Utah.

Nov. 16, 1987.

Brian R. Florence, Ogden, for plaintiff and appellant.

David R. Hamilton, Farr, Kaufman & Hamilton, Ogden, for defendant and respondent.

Before BENCH and BILLINGS, JJ., and HANSON, District Judge.^*

OPINION

BENCH, Judge:

Plaintiff appeals from a court order which modified his divorce decree by increasing the support for a child over the age of 18.We affirm.

Plaintiff Marlon Balls and defendant JoAnn (Balls) Hackley, parents of two children, were divorced October 4, 1979.The decree was based upon a stipulation between the parties which set forth the terms for custody, support, alimony, and property rights.The portion of the decree relevant to this appeal reads as follows:

That commencing with the month of October, 1979, defendant be and she is hereby awarded and plaintiff be, and he is hereby required to pay to defendant the sum of $125.00 per month per child for the support and maintenance of the minor children of the parties, which payments shall be due on or before the 15th day of each month.That said child support payments for each child shall continue until such child reaches the age of 18 years and thereafter so long as such child is single and living with defendant and is attending a college or a university on a full-time basis; provided, however, that in no event shall plaintiff be obligated for the support of either child beyond his or her 22nd birthday.

In September 1986, after the first child had reached the age of 18 years, defendant filed a petition to modify the decree to increase child support to $250.00 per child per month.At the modification hearing, the parties stipulated there had been a substantial change in circumstances, namely the increased needs of teenage children and a near doubling of plaintiff's income since entry of the decree.Plaintiff agreed to increase the minor child's support to $250.00 per month.The parties disagreed, however, whether the increase should be granted to the 18 year old child, and submitted the issue to the court for resolution.In an order dated February 9, 1987, the court increased child support to $250.00 per child per month subject to the conditions set forth in the decree.On appeal, plaintiff argues the trial court erred in increasing child support since, but for plaintiff's stipulation, the court had no authority to require support for a child over the age of 18.

Utah Code Ann. § 30-3-5(3)(1987) provides:

The court has continuing jurisdiction to make subsequent changes or new orders for the support and maintenance of the parties, the custody of the children and their support, maintenance, health, and dental care, or the distribution of the property as is reasonable and necessary.

Plaintiff recognizes the continuing jurisdiction of the trial court to increase the support for the minor child based on the substantial change in circumstances.Plaintiff argues, however, that under Utah law the trial court had no authority to require him to pay more support than agreed after a child's 18th birthday.

Utah Code Ann. § 15-2-1(1986) states:

The period of minority extends in males and females to the age of eighteen years; but all minors obtain their majority by marriage.It is further provided that courts in divorce actions may order support to age 21.

The authority of the trial court, under this section, to extend a parent's obligation to support his or her child beyond the age of 18 is discretionary and may only be exercised upon a finding of necessity and special or unusual circumstances.Harris v. Harris, 585 P.2d 435, 437(Utah1978).See alsoDehm v. Dehm, 545 P.2d 525(Utah1976).Plaintiff argues that absent explicit statutory authority, the court cannot modify his stipulation with defendant.

The Utah Supreme Court considered similar facts in Despain v. Despain, 627 P.2d 526(Utah1981).In Despain, the parties entered into a stipulation and property settlement agreement which was approved and incorporated in the divorce decree.The husband agreed to continue support payments for two of the children so long as they resided with plaintiff and were full-time students.Subsequently, the...