Dimitroff v. Dimitroff

• Decision Date: 21 October 1975
• Docket Number: No. 13539,13539
• Citation: 159 W.Va. 57,218 S.E.2d 743
• Court: West Virginia Supreme Court
• Parties: Mozelle Elaine DIMITROFF v. Paul (NMI) DIMITROFF.

Page 743

218 S.E.2d 743

159 W.Va. 57

Mozelle Elaine DIMITROFF v. Paul (NMI) DIMITROFF.

No. 13539.

Supreme Court of Appeals of West Virginia.

Oct. 21, 1975.

Syllabus by the Court

Where a statute lowers the age of majority from twenty-one to eighteen years, and a divorce decree provided for the support of children until twenty-one years of age or otherwise emancipated, and a savings clause is included in the statute providing that such change shall not by operation of law affect any rights, duties or obligations existing by virtue of a judgment or decree prior to the effective date of the statute changing the age of majority, and in the absence of specific language authorizing the court, in its discretion, to modify a decree when a child reaches the new age of majority, the child must be supported as provided in the divorce decree entered before the passage of the statute changing the age of majority.

John L. Ward, Charleston, for appellant.

No appearance for appellee.

BERRY, Justice.

Paul Dimitroff, the defendant in divorce and contempt proceedings below, appeals from the judgment of the Circuit Court of Kanawha County, acting in its capacity as an intermediate appellate court, which reversed the judgment of the Domestic Relations Court of Kanawha County and held that the appellant was obligated to pay child support payments to the appellee in accordance with the terms of a prior divorce decree. The judgment appealed from was entered by the Circuit Court on July 5, 1974. This Court granted an appeal on November 25, 1974, and the case was submitted on the brief of the appellant on September 16, 1975.

On February 11, 1970, the appellee, Mozelle Elaine Dimitroff, obtained a divorce from the appellant in the Domestic Relations Court of Kanawha County. By the terms of the decree, the appellee obtained the custody of the two infant children of the parties, Ricky Cleveland Dimitroff, then sixteen (16) years of age, and Agnes Ann Dimitroff, then fifteen (15) years of age. The decree further provided that the appellant pay to the appellee the monthly sum of $50.00 as child support for each of the children '. . . until the further order of this Court, and so long as each child is under the age of 21 years, unmarried and not emancipated . . . said monthly payment as to each child is to cease and discontinue when that child becomes 21 years of age, is married, or during the period said child is in active military service, and then without requirement of further order of this Court.' The obligation of Paul Dimitroff to pay child support was also defined in a separation agreement executed by the parties on the 24th day of November, 1969. The agreement, which was entered into the record below by stipulation and which was ratified, approved and confirmed by the Domestic Relations Court, but was not made a part of the divorce decree, specified that the appellant agreed to pay the appellee the sum of $100.00 per month ($50.00 for each child) for the support, maintenance and education of those children '. . . do (sic) long as each child is under the age of 21 years, unmarried and not emancipated . . ..'

Subsequent to the entry of the divorce decree, Ricky Cleveland Dimitroff entered the armed forces and the appellant was thereby relieved of the obligation to provide for his support.

On June 9, 1972, statutes enacted by the Legislature of this State changing the age of majority from twenty-one years to eighteen years became effective. On October 6, 1972, Agnes Ann Dimitroff celebrated her eighteenth birthday and immediately thereafter the appellant discontinued making support payments on her behalf. As a result of the appellant's unilateral action, the appellee initiated contempt proceedings in the Domestic Relations Court on November 19, 1973, alleging the nonpayment and contending that the appellant was in arrears in the amount of $650.00. A rule to show cause was issued and hearings were held in the Domestic Relations Court. As a result of these proceedings, on December 5, 1973, the Domestic Relations Court of Kanawha County ruled that Agnes Ann Dimitroff, having reached majority, was an adult and was emancipated and that the appellant was no longer liable for her support and maintenance.

On appeal by Mozelle Elaine Dimitroff to the Circuit Court of Kanawha County, the order of the Domestic Relations Court was reversed. The Circuit Court was of the opinion that savings provisions in the statute establishing the age of majority at eighteen years preserved the rights and obligations of the parties under the original decree and that the appellant was not automatically relieved of his support obligation by virtue of his child having reached eighteen years of age.

The only issue involved in this case is whether the amended statute relieved the defendant of his duty to pay support and maintenance as required by the divorce decree. The relevant statute, which amended Chapter 2 of the West Virginia Code by adding article 3, section 1, reads in pertinent part as follows:

'On and after June nine, one thousand nine hundred seventy-two, except as otherwise specifically provided in this Code, no person who is eighteen years of age or older shall lack legal capacity, by reason of his age, to enter into contracts, sell or purchase real or personal property, create a lien, execute any legal or other written instrument, prosecute or defend legal actions, assert claims or deal in his own affairs in any manner whatsoever.

'The provisions of this section, and the provisions of chapter sixty-one, acts of the Legislature,...