Childers v. Childers

• Decision Date: 02 February 1978
• Docket Number: No. 44555,44555
• Citation: 89 Wn.2d 592,575 P.2d 201
• Parties: Joyce E. CHILDERS, Petitioner, v. Leland E. CHILDERS, Respondent.
• Court: Washington Supreme Court

Page 592

89 Wn.2d 592

575 P.2d 201

Joyce E. CHILDERS, Petitioner, v. Leland E. CHILDERS, Respondent.

No. 44555.

Supreme Court of Washington, En Banc.

Feb. 2, 1978.

Bonjorni, Harpold & Fiori, Duncan A. Bonjorni, Auburn, for petitioner.

Donald E. Watson, Seattle, Stephen R. Thomas, Seattle, for respondent.

HICKS, Associate Justice.

In a dissolution proceeding, may a parent be required to support a child beyond the age of majority while a college education is pursued? Within the sound discretion of the trial court, our answer is yes.

The trial court entered a decree of dissolution and awarded the custody of the children to the petitioner (wife), divided the property, fixed support payments to be paid by the respondent (husband), and awarded an attorney's fee. The court's order required husband to pay support for the parties' three sons while they attend college. Should each of the sons elect to complete work for a baccalaureate degree, each would be 22 years of age. That is 4 years beyond the present age of majority. RCW 26.28.010.

The Court of Appeals reversed as to the support order on the grounds that a parent owes no duty of support to a child who has attained the legal age of majority. The court reasoned that the privileges and immunities section of our state constitution (article 1, section 12) and equal protection under the fourteenth amendment to the United States Constitution would be violated by imposing such a duty, as there is no reasonable ground for making a distinction between divorced parents and married parents, the latter being "free to bid their children a fiscal farewell at age 18." Childers v. Childers, 15 Wash.App. 792, 796, 552 P.2d 83, 85 (1976). We granted wife's petition for review. We reverse the Court of Appeals in part and affirm the trial court.

The parties were married in April 1953. They have three sons, born 1954, 1956 and 1959. Husband is a medical doctor practicing alone in King County. At trial, he was 53 years of age and wife was 45 years of age. Wife had no employment history other than as a waitress and some slight experience in helping around her husband's office. She was not college-trained.

Husband appealed to the Court of Appeals from that portion of the decree which requires him to pay $500 per month maintenance for his wife while she pursues a baccalaureate degree in an accredited school, college or university as a full-time student; to pay tuition, books and miscellaneous educational fees of each son; and to maintain medical and dental insurance for the benefit of the wife and sons until such time as the sons are no longer dependent upon the parties for support. Husband abandons, in this court, his appeal concerning maintenance for his wife while she furthers her education.

RCW 26.08.110, the statute in effect prior to enactment of the 1973 Dissolution of Marriage Act, provided that support could be ordered only for minor children of a marriage:

and shall make provision for costs, and for the custody, support and education of the minor children of such marriage.

(Italics ours.) Cases cited by husband in support of his contention that the parental duty of support terminates when the child reaches majority are all based on the above statute. Those cases, mainly Sutherland v. Sutherland, 77 Wash.2d 6, 459 P.2d 397 (1969), Ditmar v. Ditmar, 48 Wash.2d 373, 293 P.2d 759 (1956) and Van Tinker v. Van Tinker, 38 Wash.2d 390, 229 P.2d 333 (1951) all antedate the 18-year age of majority (enacted in 1971) and the 1973 dissolution act. They are therefore not controlling in this case.

The 1973 dissolution act, RCW 26.09, eliminated all reference to minority, and granted the court authority to order support for dependent children to whom a duty of support is owed. RCW 26.09.100 provides in part:

(T)he court may order either or both parents owing a duty of support to any child of the marriage dependent upon either or both spouses to pay an amount reasonable or necessary for his support.

That "dependent" child does not mean "minor" child is apparent from RCW 26.09.110, which states in part:

The court may appoint an attorney to represent the interests of a minor or dependent child with respect to his custody, support, and visitation.

(Italics ours.) "When the term 'or' is used it is presumed to be used in the disjunctive sense, unless the legislative intent is clearly contrary." 1A C. Sands, Sutherland on Statutory Construction § 21.14, n. 1 (4th ed. 1972) (cases cited). We have said "or" does not mean "and". State v. Tiffany, 44 Wash. 602, 87 P. 932 (1906).

We have also said that from a change in the wording of a statute, a change in legislative purpose shall be presumed. We quoted as follows in Graffell v. Honeysuckle, 30 Wash.2d 390, 400, 191 P.2d 858, 864 (1948):

". . . Where a statute is amended, it will not be presumed that the difference between the two statutes was due to oversight or inadvertence on the part of the legislature. To the contrary, the presumption is that every amendment of a statute is made to effect some purpose, and effect must be given the amended law in a manner consistent with the amendment. The general rule is that a change in phraseology indicates persuasively, and raises a presumption, that a departure from the old law was intended, and amendments are accordingly generally construed to effect a change . . ."

We have no doubt that a change in the law was intended by the change in wording from the old support statute (referring to "minor", a fixed and arbitrary status) to the new support statute (referring to "dependent" and "emancipated", both of which are statuses to be determined under the facts of each case). The legislature may well have decided as a result of the lower majority age, that support obligations should no longer hinge on minority, but that trial courts should have discretion to determine when a duty of support is owed, or ceases to be, and when a child is dependent, or ceases to be.

That this was the intent of the legislature seems apparent from a reading of RCW 26.09.170:

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 or by the death of the parent obligated to support the child.

(Italics ours.) The italicized language evidences a legislative intent that the trial court have jurisdiction to enter a decree of support for children past age 18. How else could it be "otherwise . . . expressly provided in the decree"? A statute cannot be construed so that an entire provision is meaningless, unless necessary to save the statute or act from constitutional infirmity, or to reconcile conflicting statutes. Connolly v. Department of Motor Vehicles, 79 Wash.2d 500, 487 P.2d 1050 (1971); Miller v. Pasco, 50 Wash.2d 229, 310 P.2d 863 (1957); Groves v. Meyers, 35 Wash.2d 403, 213 P.2d 483 (1950). It appears to us that the effect of the Court of Appeals' construction of the act in Childers v. Childers, 15 Wash.App. 792, 552 P.2d 83 (1976) (Contra, In re Marriage of Melville, 11 Wash.App. 879, 526 P.2d 1228 (1974) and Reedy v. Reedy, 12 Wash.App. 844, 846, n. 1, 532 P.2d 626 (1975).) is to nullify or render meaningless the italicized phrase.

We construe the dissolution act as basing any support obligation on dependency, not minority, and ending the obligation at emancipation, not majority. Though it appears that emancipation, as the term is used in this act, is determined by factors in addition to age, we do not address the question as it is not an issue in this case. ¹ RCW 26.09.170 states that child support obligations cease when the child becomes emancipated unless, as here, it is otherwise provided in the decree. Since the trial court is empowered under RCW 26.09 to order support to continue past a child's majority, we turn now to determine if there is an abuse of discretion in so ordering under the facts of this case.

The Childers' boys are children of the marriage. The other criteria set out in RCW 26.09.100 are that they be dependent and that their father owe them a duty of support. Both are matters of fact.

Although the legislature has defined dependent child variously throughout the code as 18 and under, under 21, or simply in financial need, ² the chapter before us contains no definition. Legislative definitions generally control in construing the statutes in which they appear, but when the same word or phrase is used elsewhere the meaning depends on common usage and the context in which it is used, unaffected by the other statutory definitions. A dependent is, in our view and as used in this context, one who looks to another for support and maintenance, one who is in fact dependent, one who relies on another for the reasonable necessities of life. Dependency is a question of fact to be determined from all surrounding circumstances, or as the legislature put it: "all relevant factors". RCW 26.09.100. Age is but one factor. Other factors would include the child's needs, prospects, desires, aptitudes, abilities, and disabilities, and the parents' level of education, standard of living, and current and future resources. Also to be considered is the amount and type of support (i. e., the advantages, educational and otherwise) that the child would have been afforded if his parents had stayed together. See Puckett v. Puckett, 76 Wash.2d 703, 458 P.2d 556 (1969).

We find no abuse of discretion in the trial court's determination that the Childers' boys were dependents. They lived at home and were not self-sustaining at the time the decree was entered. As to their status as dependents continuing through 4 years of continuous pursuit of a baccalaureate degree, we think it reasonable to assume that a medical doctor, himself with years of higher education which brings him a higher than average income, would willingly treat his sons as dependents if they chose and showed an aptitude for college, but for the fact of...