Crook v. Crook

• Decision Date: 15 May 1956
• Docket Number: No. 6035,6035
• Citation: 296 P.2d 951,80 Ariz. 275
• Parties: , 58 A.L.R.2d 352 M. L. CROOK, Appellant, v. W. S. CROOK, Appellee.
• Court: Arizona Supreme Court

Page 951

296 P.2d 951

80 Ariz. 275, 58 A.L.R.2d 352

M. L. CROOK, Appellant, v. W. S. CROOK, Appellee.

No. 6035.

Supreme Court of Arizona.

May 15, 1956.

Shimmel, Hill & Cavanagh, and John E. Savoy, Phoenix, for appellant.

Rawlins, Davis, Christy, Kleinman & Burrus, Phoenix, for appellee.

UDALL, Justice.

This is an appeal from a judgment quashing an order to show cause and further ordering that the payment of support under the provisions of a divorce decree be stricken.

The facts in the case are not in dispute. A decree of divorce was entered in this action on June 24, 1942, on complaint of Mary L. Crook (plaintiff-appellant) against W. S. Crook (defendant-appellee) requiring inter alia:

'* * * that the defendant pay to the plaintiff through the office of the Clerk of this Court as and for the support and maintenance of the minor child of the parties * * * the sum of Fifty ($50.00) Dollars per month, * * * to be paid on or before the 1st day of every succeeding month commencing July 1, 1942, and to continue until further order of the Court, * * *.'

This decree was subsequently modified on May 19, 1949, to require defendant to pay $85 per month, 'until majority or the further Order of the Court'. Defendant made monthly payments regularly up to November 1, 1951. On October 9, 1951, the minor child was married, and thereafter defendant made no further payments. On August 27, 1954, an order to show cause was issued requiring defendant to appear and show cause why he had not complied with the decree in failing to make the monthly support payments, the arrearage on which amounted to some $2,295. At the hearing on this order the parties agreed the facts were substantially as set forth herein, and the trial judge directed each side to submit a memorandum, after which, on November 29, 1954, he rendered judgment for defendant. Plaintiff appeals from this judgment and order.

The sole and determinative question on this appeal is: Did the marriage of the parties' minor child operate ipso facto to relieve defendant of an enforceable duty to make support payments without first obtaining a modification of the divorce decree?

There seems little question that marriage of a minor child for whom support payments are required of the father is good and sufficient ground for modification of the decree. Davis v. Davis, 68 App.D.C. 240, 96 F.2d 512, 514, reversed on other grounds, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26, 118 A.L.R. 1518. It is there stated:

'It has been held that the marriage of a minor daughter, creating relationships inconsistent with parental control, emancipates her from the custody, care and control of her parents; that an emancipation works as complete a severance of the legal filial relationship as if the child had reached majority, thus relieving the parent of all legal obligation for support * * *.'

See also, Bennett v. Bennett, 179 Va. 239, 18 S.E.2d 911; Hayes v. Hayes, Mo.App., 156 S.W.2d 34. Cf. Leith v. Horgan, 24 N.J.Super. 516, 96 A.2d 15, reversed on other grounds, 13 N.J. 467, 100 A.2d 175, 38 A.L.R.2d 1440; Annotation-Minor-Implied Emancipation, 165 A.L.R. 723, 745; 67 C.J.S., Parent and Child, § 89c. However, plaintiff contends that until such time as either of the two events occurred upon which the decree was by its terms conditioned, namely attainment of majority or relief by court order, defendant was still bound to pay the support, as provided in the modified decree. She relies on the case of Adair v. Superior Court, 44 Ariz. 139, 33 P.2d 995, 996, 94 A.L.R. 328, wherein the following statement appears:

'Installments of alimony become vested the moment they are due and the court has no power to modify the decree as to them. The rights and liabilities of the parties in such instances become irrevocably fixed on the dates the decree provides they shall be paid, and the inevitable effect of this is that the power to 'amend, change or alter' a provision of the decree requiring the care, custody or maintenance of the children has no reference to installments that are past due and unpaid. * * *'

In effect she stands 'four-square' upon the prior divorce decree as amended and demands enforcement of its provisions regardless of the changed conditions or equitable considerations which have arisen subsequent to entering of the decree and which have a direct bearing upon the duty of the father...