Despain v. Despain, 17034
| Decision Date | 11 March 1981 |
| Docket Number | No. 17034,17034 |
| Citation | 627 P.2d 526 |
| Parties | Joyce M. DESPAIN, Plaintiff and Respondent, v. Robert V. DESPAIN, Defendant and Appellant. |
| Court | Utah Supreme Court |
David S. Dolowitz, Salt Lake City, for defendant and appellant.
J. Thomas Green, H. Russell Hettinger, Salt Lake City, for plaintiff and respondent.
Defendant appeals from an order denying his motion to modify a provision in a decree of divorce. Defendant had entered into a stipulation and property settlement agreement with plaintiff, which was approved and incorporated in the decree by the trial court in November 1976. By the terms of this provision defendant agreed to continue to pay support to plaintiff for two of their children so long as they resided with plaintiff and were fulltime students. Defendant's sole ground for seeking modification was an alleged change of law, which assertedly constituted a change of circumstance sufficient to justify modification of the decree. Defendant sought to terminate his obligation to provide support on the 21st birthday of each child. The order of the trial court is affirmed.
According to defendant, after the entry of the decree of divorce this Court rendered a series of decisions which established that a parent could not be ordered to pay support for a child between the ages of 18 and 21 without a special finding by the trial court, concerning the child's need for such support. 1 Defendant further cites two cases, which were rendered prior to the entry of the decree, which hold that absent a finding that a child is incapacitated and unable to earn a living, a parent's obligation to support terminates at age twenty-one. 2
Since Section 15-2-1, Utah Code Annotated, 1953, as amended, confers power on the trial court in a divorce action to award support to age twenty-one, defendant does not challenge his obligation to his children to that age. He reasons that since a court in a divorce proceeding does not have authority to order support for a child over the age of twenty-one, who is not disabled, he should be relieved of his voluntary agreement to assist in providing his children with an education because his agreement was approved and incorporated by the court in a decree of divorce.
Defendant has failed to observe the distinction between those cases involving the statutory power of a court in a divorce proceeding to enter orders concerning support and those cases in which the parties in a divorce action have settled their property rights by agreement, the terms of which are incorporated in a decree. The limitations on the power of the court to order support do not limit the rights of a husband and wife to contract with respect to the education of their children as part of an agreement settling their property rights. A husband, who has undertaken an obligation in consideration of the provisions of the property settlement agreement which were for his benefit, cannot subsequently complain that the court, in the absence of such agreement, would have been without power to order him to do so. 3
In the instant case, plaintiff filed for divorce in November 1973, the parties did not reach an agreement until November 1976. In a prior case 4 involving another provision in the property settlement, defendant argued plaintiff had contracted away her rights and relinquished all claims to the marital estate in consideration for the benefits conferred upon her therein. This Court ruled the principles of Land v. Land 5 were applicable:
6
In Land and the prior Despain case, the Court dealt with property settlement...
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