Biermann v. Biermann, 39850
| Decision Date | 06 March 1979 |
| Docket Number | No. 39850,39850 |
| Citation | 584 S.W.2d 106 |
| Parties | Carolyn Joyce BIERMANN, Respondent, v. William Raymond BIERMANN, Appellant. |
| Court | Missouri Court of Appeals |
David R. Spitznagel, Clayton, for appellant.
Thomas M. Lang, Thomas K. Edelmann, Love, Lacks, McMahon & Schwarz, Clayton, for respondent.
This is an appeal by William Raymond Biermann from the refusal of the trial court to quash a writ of execution whereby Carolyn Joyce Biermann, his former wife, sought to collect child support awarded to her in a divorce proceeding in 1971. We affirm.
The judgment awarding child support did not state for how long the payments were to be made. Therefore, they were to be made until the child reached majority or was emancipated. Appellant discontinued payments of child support for each child when that child reached the age of eighteen years on the theory that the child reached majority at that age.
The issues on this appeal are:
(1) Does a child reach majority for the purpose of terminating the obligation of a parent to pay child support pursuant to a divorce or dissolution of marriage decree at age eighteen or at age twenty-one?
(2) If the obligation to pay child support did not terminate at age eighteen, was Carolyn Ann Biermann, the oldest child of the parties, emancipated at anytime before reaching twenty-one years of age.
Appellant admits that under the common law an infant person attained majority at the age of twenty-one years, see 42 Am.Jur.2d Infants § 3, and that until changed by legislative action the common law shall be the rule of action and decision in this State. § 1.010 RSMo 1969; Robertson v. Jones, 345 Mo. 828, 136 S.W.2d 278 (1940). Appellant contends, however, that the legislature has changed the age of majority to eighteen years of age.
Appellant first refers to the fact that in 1974 the legislature passed Senate Bill 438, which provided, among other things, that "The age of majority in this state is eighteen years, and all persons having attained that age are entitled to all the privileges, rights and immunities, and subject to all the obligations and responsibilities of adulthood and are not subject to any of the disabilities of infancy." An exception was provided as to laws "pertaining to alcoholic beverages." However, in State ex rel. McNary v. Stussie, 518 S.W.2d 630 (Mo. banc 1974), the Supreme Court of this State declared the above legislative act to be unconstitutional in its entirety. Nevertheless, appellant argues that the passage of this unconstitutional act "clearly indicates the intention of the legislature * * * to change the age of majority to eighteen, * * *."
The legislature may have intended to change the age of majority to eighteen years, but it did not do so by the passage of an unconstitutional act. The courts are bound by what the legislature in fact did; not by what was its ineffective intention.
Appellant points to other acts of the legislature which have changed the age from twenty-one to eighteen years for specified purposes. For example, § 451.090(2) now provides that a male eighteen years of age may obtain a license to marry without parental consent. Also, § 507.115 authorizes a person who is eighteen years of age to prosecute or defend a lawsuit in his own name as the real party in interest, and § 431.055 authorizes a person eighteen years of age to enter into a legally binding contract. Unquestionably, these statutes evidence the intention of the legislature that for the stated purposes the age of eighteen years is sufficient. However, appellant points to no statute, and we find none, which purports to change the common law obligation of a parent to support a minor child until he reaches the age of twenty-one years, or to abrogate the authority of the court in a dissolution of marriage proceeding to award child support to the custodial spouse until the child reaches the age of twenty-one years.
Absent a showing of emancipation, the obligation of appellant under the decree of divorce for child support did not terminate as to each child until that child reached the age of twenty-one years. See Block v. Lieberman, 506 S.W.2d 485 (Mo.App.1974).
Appellant next contends that Carolyn Ann was emancipated prior to reaching her twenty-first birthday, and that the trial court erred in failing to so find.
Carolyn Ann was eighteen years of age on February 1, 1974 and...
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