Brady v. Brady

• Decision Date: 31 March 1979
• Docket Number: No. 49256,49256
• Citation: 592 P.2d 865,225 Kan. 485
• Parties: C. E. BRADY, Appellant and Cross-Appellee, v. P. L. BRADY, Appellee and Cross-Appellant.
• Court: Kansas Supreme Court

Page 865

592 P.2d 865

225 Kan. 485

C. E. BRADY, Appellant and Cross-Appellee, v. P. L. BRADY, Appellee and Cross-Appellant.

No. 49256.

Supreme Court of Kansas.

March 31, 1979.

Syllabus by the Court

1. Child support may be modified at any time circumstances render such a change proper, but the modification operates prospectively only.

2. Accrued, unpaid child support payments cannot be modified under K.S.A. 60-260(B )(6). Similarly, relief from prospective unpaid child support payments should be sought under K.S.A.1978 Supp. 60-1610(A ) by proper motion of the party rather than K.S.A. 60-260(B )(6). (Remarks to the contrary in Besse v. Besse, 1 Kan.App.2d 217, 220, 563 P.2d 518, Rev. denied 223 Kan. clxxi (1977) are disapproved.)

3. When a fixed sum payable periodically is awarded as support for more than one child, and where the trial court does not specify the amount per child, justice is better served by dividing the sum proportionately.

4. Under K.S.A.1978 Supp. 60-1610(A ) any order requiring either parent or both parents to pay for the support of any child until the age of majority shall terminate when such child attains the age of eighteen (18) years, unless by prior written agreement approved by the court such parent or parents specifically agreed to pay such support beyond the time such child attains the age of eighteen (18).

5. An order for support of a child "until further order of the court" does not mean that payments will accrue after the child becomes of age until the court makes a further order. The order terminates when the child attains majority without further order.

6. Under the provisions of K.S.A. 60-2105 the Supreme Court is required in any case pending before it to render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court.

Charles L. Davis, Jr., Topeka, argued the cause, and Michael J. Unrein and J. Franklin Hummer, Topeka, were with him on the brief for appellant and cross-appellee.

F. G. Manzanares, Topeka, argued the cause and was on the brief for appellee and cross-appellant.

SCHROEDER, Chief Justice:

This is a post-judgment proceeding in a divorce action. On April 23, 1976, the plaintiff-appellant, C. E. Brady, filed an accusation in contempt against her former husband for failure to pay child support. Appeal has been duly perfected from an order of the district court which denied the contempt citation; relieved the defendant-appellee, P. L. Brady, from paying in full child support payments alleged to be due; and modified the order of support.

The parties were divorced on June 6, 1972. The appellant was awarded the care, custody, and control of the couple's three minor children Michael, age 16; Karen, age 15; and Lori, age 9. The decree provided:

"That the defendant should pay to the plaintiff for the support, maintenance and education of said minor children the sum of Two Hundred Fifty Dollars ($250.00) per month, the same to be due and payable One Hundred Twenty-Five Dollars ($125.00) on the first, and One Hundred Twenty-Five Dollars ($125.00) on the 15th of each month, commencing June 1, 1972, And to continue thereafter until further order of the Court." (Emphasis added.)

Subsequently Mike, the oldest child, moved to his father's house in June of 1973 and resided with him until he became of age. Soon after the move the appellee reduced child support payments from $250 to $167 per month, Admittedly with the consent of the appellant. The appellant was having problems with Mike and she felt the father could do a better job in caring for Mike.

Mike, the oldest child, reached the age of majority (18) in February 1974. Karen reached the age of majority (18) on May 2, 1975. At that time, May 1975, the appellee commenced paying $85 per month to the appellant for child support through the clerk of the district court.

By the terms of the divorce decree the homestead of the parties was to be sold in a commercial manner after June 1, 1975, and the net proceeds of the sale were to be divided equally. When a dispute arose concerning the sale of the house the appellant was served with a citation in contempt and consulted an attorney regarding the sale. Upon resolution of the matter concerning the sale the order for sale of the house was dated August 4, 1975. The closing statement shows the appellant wife received the sum of $21,764.33 and the appellee husband the sum of $19,310.52. At no time during this dispute did the appellant assert that the appellee was behind in his child support payments. In fact, on March 27, 1975, The appellant prepared and executed an affidavit stating the appellee was current and up to date on his child support payments. On this point the appellant testified in the instant contempt proceeding: "At the time then I knew that he was current."

By the appellant's own testimony she had conversations with the appellee from June 1972 to February 1976. At the time she prepared and signed the affidavit the appellee was not paying child support through the clerk of the district court and there were no records in the clerk's office showing how much had been paid. She testified "Whatever agreement was entered into between Mr. Brady and I prior to and at the time the divorce decree was granted has never been changed."

The first time the appellee became aware that the appellant was asking him for child support, in addition to what he had been paying, was when he received a letter dated March 16, 1976, from her attorney. This is the first time he knew she was claiming that he was delinquent in his support payments.

When this divorce action was filed in 1972 the proceeding was termed a Friendly divorce. The appellee had no attorney and testified that the parties had an agreement he would pay $75 per child each month for their support. This is corroborated by an exhibit introduced in evidence showing payment by a cancelled check in the amount of $225 to the appellant for child support prior to any order of the trial court indicating the amount of child support payable.

The appellant denies that there was an agreement to pay $75 per month per child as support payments. This is the only factual dispute between the parties in the entire record. Both parties testified extensively.

This dispute was triggered by the fact that the appellant wanted the appellee to pay the college expenses of Karen after she had reached the age of majority. The appellee testified that in his opinion the two oldest children were "not college material." He refused to pay for Karen's college education and said there was no agreement between Mrs. Brady and himself to pay for the college education of the children. There is no testimony by the appellant in the record to the contrary.

On April 23, 1976, the appellant filed a contempt proceeding. She alleged the appellee was approximately $3,556.15 in arrears in child support payments. At that time, as well as the date of hearing on July 21, 1976, no motion to modify the original order of $250 per month had ever been filed by either party.

The appellee then filed a motion on May 19, 1976, for an order interpreting the child support provision in the decree or, in the alternative, for an order Nunc pro tunc.

At the hearing on July 21, 1976, the district court found the original order was in full force and effect. The court then ruled it had authority to relieve the appellee from final judgment under K.S.A. 60-260(B )(6). The trial court gave the father credit against the judgment for the period of time Michael was in the father's custody commencing in June 1973, and it also gave the father credit against the judgment for the period of time after Karen attained the age of 18 years. The trial court modified the order of child support directing the appellee to pay the appellant $130 per month for the support of Lori, the youngest child, admonishing that it was not a final order, and stating: "That Order is subject to proof."

The trial court dismissed the motion for contempt based upon its findings in the case.

It is apparent the trial court in hearing this matter treated the motion not only as one for contempt but also as a motion to modify the child support award by reason of changed circumstances.

On appeal the appellant relies on the technicalities of Kansas law regarding child support awards in an effort to collect the difference between $250 per month, calculated from the date of the divorce decree, and what was actually paid in money to the appellant as of May 31, 1976.

We have often stated installments for support of a minor child become final judgments as of the dates due. They may be enforced as other judgments and are barred by the statute of limitations as other judgments. See Strecker v. Wilkinson, 220 Kan. 292, 297, 552 P.2d 979 (1976) and cases cited therein. Furthermore, child support may be modified at any time circumstances render such a change proper, but the modification operates prospectively only. Salem v. Salem, 214 Kan. 828, Syl. P 4, 522 P.2d 336 (1974); Ediger v. Ediger, 206 Kan. 447, 479 P.2d 823 (1971); Herzmark v. Herzmark, 199 Kan. 48, 427 P.2d 465 (1967). Divorced parents cannot legally reduce child support or terminate the obligation by a contractual agreement or otherwise. It is a right of the child and can only be reduced or terminated by court order. See Thompson v. Thompson, 205 Kan. 630, 470 P.2d 787 (1970).

The appellant first contends the trial court abused the exercise of its power of discretion when it retroactively relieved the appellee from judgments which accrued when he failed to pay child support previously ordered by the court.

Material to further discussion herein are provisions in K.S.A. 60-260(B ) which provide in part:

"On motion and upon such terms as are just, the court may relieve a party or said party...