Brown v. Smith, CA

• Citation: 1 Ark.App. 141,613 S.W.2d 598
• Decision Date: 08 April 1981
• Docket Number: No. CA,CA
• Parties: James F. BROWN, Appellant, v. Amanda Brown SMITH, Appellee. 80-498.
• Court: Arkansas Court of Appeals

Page 598

613 S.W.2d 598

1 Ark.App. 141

James F. BROWN, Appellant, v. Amanda Brown SMITH, Appellee.

No. CA 80-498.

Court of Appeals of Arkansas.

April 8, 1981.

Joseph W. Gelzine, Little Rock, for appellant.

Ronald D. Harrison, Fort Smith, for appellee.

CRACRAFT, Judge.

In 1971 the appellant, James F. Brown, and appellee, Amanda Brown Smith, were granted a divorce in the Sebastian County Chancery Court. A property settlement agreement entered into between the parties prior thereto was approved by the court and incorporated in its decree. Their agreement provided that the appellant should pay to appellee for the support and maintenance of their daughter the sum of $125 per month and for the support and maintenance of their son the sum of $175 per month, said payments to continue "until said children obtain majority or marry, whichever occurs first." The agreement recited that the reason for the larger sum being awarded for the support of the minor son was due to the requirement that he receive special education beyond the requirements of an average child.

At the time these agreements were made in 1971 our law provided that all males under the age of twenty-one years were deemed to be minors. Ark.Stat.Ann. § 57-103 (Repl.1973). In 1975 the legislature changed the law by providing that all persons upon reaching the age of eighteen years shall be considered to have reached the age of majority. Ark.Stat.Ann. § 57-103 (Supp.1979). When the minor son reached his eighteenth birthday in December of 1979 appellant ceased making child support payments relying upon the latter act.

In February of 1980 the appellee filed her petition requesting that the court hold appellant in contempt for discontinuing the support payments for the minor child without prior court order, for arrearages accumulated from and after his eighteenth birthday, and for an increase in child support payments. After hearing evidence on the matter the chancellor entered his order directing that the appellant pay all installments of child support which had accrued since the date the child reached his eighteenth birthday, directed him to continue those support payments pending further order of the court and increased the child support payments to the sum of $50 per week. The chancellor in his findings found that the child "became of age at the age of eighteen under the present law, but the fact that a child becomes of age does not necessarily mean that support should be terminated." He found that the child was handicapped and that support should be continued even beyond the age of majority in the increased amount.

The appellant appeals from that order of the court asserting that the court erred in awarding the arrearage, and that there was not sufficient evidence to show that the child was handicapped or required further support from his parent. While we do not agree with the chancellor's conclusion that the obligation to pay support was terminated on the child's eighteenth birthday, we do find that he reached the correct result and affirm the order entered by him. Morgan v. Downs, 245 Ark. 328, 432 S.W.2d 454.

The pivotal question presented by this appeal is whether a statutory reduction in the age at which a minor is deemed to reach his majority has the effect of establishing an earlier date for the termination of the obligation to support a child under a contract entered into before its effective date, and providing for the support to continue "until he reaches his majority." We are unable to find any cases in our courts dealing directly with the subject. Both parties have provided us with excellent briefs discussing many cases from sister states which have dealt with the question and the issue was the subject of an exhaustive annotation found in 75 A.L.R.3d 228 (1977) at page 260.

Some of these courts have held that minority is a status rather than a vested right, there being no vested right in the personal privilege of minority and a child has no vested right in further child support. Such agreements have been construed to intend no greater liability for child support than that imposed by law. Rice v. Rice, 213 Kan. 800, 518 P.2d 477 (1974); Jungjohann v. Jungjohann, 213 Kan. 329, 516 P.2d 904 (1973). The majority rule, and we believe the better reasoned one, is best expressed in Wilcox v. Wilcox, 406 S.W.2d 152 (Ky.1966). There the parties had entered into a property settlement agreement in which the father agreed to make child support payments until the child reached its majority or became self-supporting. Some nine years after that divorce was granted and property settlement approved, the legislature of the State of Kentucky passed an act reducing the age of majority from twenty-one to eighteen years of age. The husband, upon the child reaching its eighteenth birthday, filed a petition to be relieved of further payments under the contract and decree upon the child reaching its eighteenth birthday. The trial court found as a matter of law that the age of majority was reduced from twenty-one to eighteen years by the legislation and there was no obligation for support after the child's eighteenth birthday. There the appellate court in reversing the action of the trial court, stated:

We cannot agree with the finding of the court that there was no obligation of support on the husband after the child's...