Clavin v. Clavin, 31746

• Decision Date: 08 February 1977
• Docket Number: No. 31746,31746
• Parties: Thomas W. CLAVIN v. Ann S. CLAVIN.
• Court: Georgia Supreme Court

Page 151

233 S.E.2d 151

238 Ga. 421

Thomas W. CLAVIN v. Ann S. CLAVIN.

No. 31746.

Supreme Court of Georgia.

Feb. 8, 1977.

Rehearing Denied March 1, 1977.

Arthur Gregory, Thomas W. Thrash, McClain, Mellon, Bowling & Hickman, Atlanta, for appellant.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, J. M. Hudgins, IV, Atlanta, for appellee.

INGRAM, Justice.

Thomas Clavin appeals a final judgment and decree entered in his divorce action in the Superior Court of Fulton County. There are six enumerations of error. Four concern the validity of child support provisions in the decree. In the other two enumerations, appellant contends that the admission of evidence tending to show misconduct by him was error. We find two enumerations of error relating to the child support award meritorious.

The Clavins were married in 1964. It was the second marriage for each of them. No children were born of this union, but Mr. Clavin had four minor daughters from his first marriage. Mrs. Clavin subsequently adopted the children. At the time of this action, only one of the children was a minor. The pertinent part of the decree concerns the child support awarded for the minor child.

"We find as child support for the minor child . . . as follows: Two Hundred Dollars per month until age 21. Mr. Clavin pays all medical, dental and psychological service expenses as necessary, maintain major medical insurance . . . provide a life insurance policy on his life to the benefit of (the child) in an amount not less than $25,000.00; he be required to pay the cost of any special schooling . . . as may be required, to be determined by a competent professional opinion of Mrs. Clavin's choice."

Appellant contends that each of the provisions of the judgment relating to child support is invalid and are collectively excessive. Specifically, he argues that: (1) the award of child support past the age of majority is invalid; (2) the requirement that he provide a life insurance policy for the benefit of the minor child is invalid; (3) the provisions relating to special schooling and psychological expenses are vague, indefinite and invalid.

The first issue we consider is the requirement that child support be paid past the age of majority, which is eighteen. Code Ann. § 74-104.1 (Rev. 1973). A father's statutory duty to support his children ceases at their majority. Code Ann. § 74-105 (Rev. 1973). An award of child support substitutes for the support required of a father by statute. Golden v. Golden, 230 Ga. 867(3), 199 S.E.2d 796 (1973); and, see Code Ann. § 30-207 (Rev. 1969). A requirement to provide child support beyond the age of majority may not, as a matter of law, be imposed. See Newton v. Newton, 222 Ga. 175(2), 149 S.E.2d 128 (1966).

The wife argues, relying on Golden, supra, 230 Ga. at 868, 199 S.E.2d 796, that the jury may, in its discretion, make "specific provisions to the contrary." This argument has no merit as the quoted dicta refer not to provisions of a verdict but to provisions of an agreement between the parties settling child support. See, e.g., McClain v. McClain, 235 Ga. 659, 221 S.E.2d 561 (1975); and Anderson v. Powell, 235 Ga. 738, 221 S.E.2d 565 (1975). There was no such agreement in this case. That part of the decree requiring the payment by the father of support beyond the child's majority is unenforceable and must be stricken.

The husband next argues that the judgment is invalid as it requires him to "provide a life insurance policy on his life to the benefit" of the minor child. There is, of course, no question that a father may agree to provide life insurance for the benefit of his child. Such an agreement, if valid and incorporated in the decree, will be enforced. Futch v. Futch, 224 Ga. 350, 161 S.E.2d 868 (1968); Tilly v. Canedy, 217 Ga. 63, 121 S.E.2d 144 (1961). The question, rather, is whether the divorce court may impose this requirement either pursuant to a verdict or acting alone when hearing the case without a jury. We conclude the court does not have this power and such a provision is enforceable only when it has been agreed to by the father in the first instance.

Generally, the duty of a father to support his children ceases upon his death, and the duty then devolves upon another, usually the mother, during the minority of the children. Raily v. Smith, 202 Ga. 185, 188, 42 S.E.2d 491 (1947); Chapin v. Cummings, 191 Ga. 408, 412, 12 S.E.2d 312 (1940). The law does not require that a father provide for the support of his children after his death. See Code Ann. § 113- 106 (Rev. 1975). Public policy, of course, favors the support of minor children by the father's estate after his death. See, e.g., Code Ann. § 113-903 (Rev. 1975) (Rules of Inheritance); Code Ann. § 113-210 (Rev. 1975) (Mistake of Fact in Will); Code Ann. § 113-107 (Rev. 1975) (Charitable Devises); Code Ann. 51-705 (Rev. 1974) (Homestead); Code Ann. § 113-1002 (Rev. 1975) (Year's Support). However, the fact remains that, despite this strong public policy, a father is not required by law to create an estate for his minor children.

The same is true with respect to a divorced father and a child support decree. The decree merely replaces the father's statutory duty of support. Golden, supra. Absent some express, voluntary provision in the decree, the decree will not be enforced after the death of the father. Cf. Brooks v. Jones, 227 Ga. 566, 181 S.E.2d 861 (1971); Veal v. Veal, 226 Ga. 285, 174 S.E.2d 435 (1970); Ramsay v. Sims, 209 Ga. 228, 71 S.E.2d 639 (1952); Berry v. Berry, 208 Ga. 285, 66 S.E.2d 336 (1951). Similarly, this court has held that a father is not required to settle an estate on his children in a divorce case. Collins v. Collins, 231 Ga. 683, 203 S.E.2d 524 (1974); Clark v. Clark, 228 Ga. 838, 188 S.E.2d 487 (1972). The rationale is that the law places no greater duty of support on a divorced father than on one who is not divorced. It is in this context that we must consider the life insurance provision in this divorce decree.

The decree required appellant to "provide" a $25,000 life insurance policy for the benefit of his minor daughter. ¹ In effect, the trial court's decree requires this father to establish an insurance estate to vest in his daughter upon his death. This, no doubt, is desirable. However, a divorce court, absent a voluntary obligation of the father, may not by decree enlarge upon the legal obligation of support. Since this requirement was beyond the court's power to impose, we hold it invalid.

The husband next contends that the decree is invalid because it requires him to pay the costs of psychological services and special schooling for his child. He further contends that, even if valid, they are too vague to be...