Bushell v. Schepp
| Decision Date | 03 February 1981 |
| Docket Number | No. 42737,42737 |
| Citation | 613 S.W.2d 689 |
| Parties | Helen M. BUSHELL, Plaintiff-Appellant, v. Janice L. SCHEPP, Successor Administratrix Ad Litem of the Estate of Charles J. Bushell, Deceased, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Stuart J. Radloff, Friedman, Fredericks & Radloff, Clayton, for plaintiff-appellant.
Janice L. Schepp, pro se.
Anderson, Preuss & Zwibelman, Clayton, for defendant-respondent.
The issue in this appeal concerns a mother's right to continue receiving child support payments provided in a dissolution of marriage proceeding from the estate of the father after his death. The probate division of the circuit court denied the mother's claim for continued payments, and she has appealed. We affirm.
The marriage ligatures of Charles and Helen Bushell were riven by court order on November 20, 1978 with the custody of their two children, ages sixteen and thirteen, awarded to Mrs. Bushell. The dissolution decree and separation agreement referred to in the decree provided that Mr. Bushell was to pay Mrs. Bushell child support of $400 per month for each child during minority. The separation agreement also provided that the two children were to remain as beneficiaries on life insurance policies covering Mr. Bushell's life, and Mr. Bushell agreed that the children would share in his estate equally if he should die during the minority of the youngest child. Mr. Bushell died on July 9, 1979, less than eight months after the dissolution. His will designated his two children as the sole beneficiaries of his estate. Child support payments were fully current at the time of his death.
Mrs. Bushell filed claim against Mr. Bushell's estate for a continuation of the child support payments. The probate division of the circuit court denied the claim. Its conclusion was that any obligation to continue child support payments must be contained in the separation agreement or some contractual obligation. Its decision was based on the common law indited in Gardine v Cottey, 360 Mo. 681, 710, 230 S.W.2d 731, 750 (banc 1950), that a parent's obligation for child support terminates on the death of the parent. The probate division also found that, whether or not it could, the separation agreement did not manifest an intention to obligate Mr. Bushell's estate to continue payment to Mrs. Bushell.
Mrs. Bushell asserts two points of alleged error in her appeal: (1) that the effect of the common law of Gardine v. Cottey, was repudiated by the enactment of § 452.370, RSMo 1978, allegedly providing for termination of child support only by emancipation; (2) that the separation agreement was unambiguous in providing that child support was to continue "during the minority of the said minor children"; hence, that it was to continue beyond the death of Mr. Bushell.
In the keystone case of Gardine v. Cottey, the Missouri Supreme Court specifically held that provisions for support of minor children contained in divorce decrees as to payments to become due in the future do not constitute a valid claim against the estate of a deceased father. Id. at 750. If Gardine v. Cottey is still the law, it is squarely on point as to the dispositive issue in this case, and Mrs. Bushell's claim against Mr. Bushell's estate for continued child support payments was properly denied.
As an offset to Gardine v. Cottey, Mrs. Bushell advances § 452.370 RSMo 1978, which provides:
1. Except as otherwise provided in subsection 6 of section 452.325, the provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.
2. Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.
3. Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child.
She argues that whereas subsection (2) provides specifically that maintenance payments terminate upon the death of either party, subsection (3), dealing with child support, does not mention the effect of the death of either party. Thus, she syllogizes, the legislature intended that the contingency mentioned in subsection (3) emancipation of the child is the "only" event which will terminate the obligation to pay child support and the common law of Gardine is abrogated. This argument is patently fenestrated. Mrs. Bushell's postulation would logically mean that even the death of the minor child would not terminate the child support obligation unless a clause to that effect appeared in the decree or separation agreement. The word "only" does not appear in the statute, nor is there any other language of exclusivity. The obvious purpose of subsection (3) is to make it absolute that, absent express provisions to the contrary in the decree or separation agreement, the obligation ends upon emancipation and does not automatically continue to age twenty-one. Also, this section would conceivably permit child support to be terminated automatically at an earlier time, at age sixteen, for example, if such is found conscionable and is expressly provided for in the decree or separation agreement. Moreover, it should be noted that the statute does not specify what the age of majority is for child support purposes. Case law fixes the age at twenty-one, even though majority is attained at eighteen for most other purposes. Biermann v. Biermann, 584 S.W.2d 106 (Mo.App.1979). The foregoing bolsters our view that the statute is not exhaustive and exclusive on the subject of termination of child support. Rather, the statute simply does not address the question of whether the parent's death terminates the child support obligation.
It is a fundamental precept of statutory interpretation that the legislature is presumed to act with knowledge of the subject matter and existing law, Wilson v. McNeal, 575 S.W.2d 802 (Mo.App.1978), which would include the law regarding continuation of child support payments interdicted by Gardine v. Cottey. We believe that if the legislature had intended to change the existing law to make decretal...
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