Dowling v. Dowling

• Decision Date: 30 March 1984
• Docket Number: No. 6454,6454
• Citation: 679 P.2d 480
• Parties: Vivian L. DOWLING, Appellant, v. James K. DOWLING, Appellee.
• Court: Alaska Supreme Court

Page 480

679 P.2d 480

Vivian L. DOWLING, Appellant, v. James K. DOWLING, Appellee.

No. 6454.

Supreme Court of Alaska.

March 30, 1984.

William T. Ford, Anchorage, for appellant.

John W. Sivertsen, Jr., Richard D. Pennington, Aglietti & Pennington, Anchorage, for appellee.

Before BURKE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and MOORE, JJ.

OPINION

BURKE, Chief Justice.

James and Vivian Dowling were divorced in Anchorage on September 24, 1974. The divorce decree incorporated the parties' property settlement and child custody agreement. The agreement provided that Vivian Dowling receive custody of the four minor children, and that James Dowling pay child support. In the event of the coming of age, marriage, death, or emancipation of a child, the child support payments would be reduced pro rata.

In 1977, the Alaska Legislature changed the age of majority from nineteen years of age to eighteen. AS 25.20.010. As a result of this amendment, James Dowling, on June 5, 1981, filed a motion for declaratory relief in which he requested the superior court to rule that his obligation to pay child support terminates when each child is "emancipated" by reaching the statutory age of majority, eighteen years. Valerie Dowling, the second eldest Dowling child, had just turned eighteen. Vivian Dowling opposed the motion, but it was granted by the superior court.

On September 1, 1981, Vivian Dowling filed a motion for modification of child support. The motion, opposed by James Dowling, requested the superior court to order James Dowling to pay post-majority educational support should any child decide to attend college as a full time student. The superior court denied her motion. Vivian Dowling appeals the superior court's rulings on both motions.

We first review the superior court's ruling on James Dowling's motion. The child support agreement provided that James Dowling would pay child support "until the children have reached the age of nineteen, marries, becomes deceased, or otherwise emancipated." Whether the change in the statutory age of majority had any effect on the child support agreement depends upon the meaning of the phrase "otherwise emancipated" contained in the agreement. Vivian Dowling contends that it is apparent from the agreement itself ¹ that the phrase only means an emancipation "in fact," i.e., a cessation of dependency, and does not include an emancipation "by law."

The definition of the word "emancipate" is: "to release from paternal care and responsibility and make sui juris ... to free from restraint, control, or the power of another." Webster's New Collegiate Dictionary 370 (1973). "Emancipation" is defined as "[t]he act by which one who was unfree, or under the power and control of another, is rendered free, or set at liberty and made his own master." Black's Law Dictionary 613 (4th ed. 1968). Thus, we believe that the meaning of the phrase "otherwise emancipated" includes an emancipation "by law," such as the attainment of the statutory age of majority. ²

However, Vivian Dowling also contends that AS 01.10.100(a), the Alaska general savings clause provision, prevents the amended age of majority statute from having any effect on a pre-existing child support decree. AS 01.10.100(a) provides:

The repeal or amendment of any law does not release or extinguish any penalty, forfeiture, or liability incurred or right accruing or accrued under such law, unless the repealing or amending act so provides expressly. The law shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of the right, penalty, forfeiture, or liability.

The phrase "right accruing or accrued" has been construed to mean a vested right. Alaska Public Utilities Commission v. Chugach Electric Association, Inc., 580 P.2d 687, 692 (Alaska 1978); Bidwell v. Scheele, 355 P.2d 584, 586 (Alaska 1960).

The term "vested" means "fixed; accrued; settled; absolute." Black's Law Dictionary 1734 (4th ed. 1968). Since a child support order is modifiable after judgment upon a showing of substantial change in circumstances, ³ a child's right to future, unaccrued installments of child support is not a vested right. ⁴ Thus, AS 01.10.100(a) does not prevent the amendment of the age of majority statute from altering the legal effect of the language contained in the pre-existing child support order. The superior court's grant of James Dowling's motion is affirmed.

We next review the superior court's denial of Vivian Dowling's motion. The issue is whether a court has the power to modify a child support order so as to provide for post-majority educational support.

A motion to modify a child support order is made pursuant to AS 25.24.170, formerly AS 09.55.220, ⁵ which provides in part:

[A]ny time after judgment the court, upon the motion of either party, may set aside, alter, or modify so much of the judgment as may provide ... for the care and custody of the minor children or for their nurture and education....

(Emphasis added). An order may be modified notwithstanding the fact that it was based on a separation agreement or stipulation signed by the parties. Curley v. Curley, 588 P.2d 289, 291-92 (Alaska 1979).

In Hinchey v. Hinchey, 625 P.2d 297, 300 (Alaska 1981), this court held that AS 09.55.210 [AS 25.24.160], ⁶ which empowers a court to issue the initial child support order, allows a court to provide for post-majority educational support. The court explained its holding as follows:

It is of particular significance that the statute was not drafted to read "nurture and education of minor children" for then post-majority support would be clearly prohibited. Lacking such an express limitation, we think the term "children," in the context employed, is ambiguous and thus subject to judicial construction.

Other Alaska statutes pertaining to custody of children specify whether they are applicable to minor children. AS 09.55.205 [AS 25.24.150] provides, in part, that "[T]he court may ... make an order for the custody of or visitation with the minor child...." Similarly, AS 09.55.200 [AS 25.24.140] authorizes the court, during the pendency of the action, to enter orders "for the care, custody, and maintenance of the minor children of the marriage...." We conclude that a reasonable construction of AS 09.55.210 [AS 25.24.160] allows for the continuation of educational support of children beyond the age of majority.

This conclusion is supported by the decision in French v. French, 117 N.H. 696, 378 A.2d 1127 (1977). The New Hampshire court ordered the college fees paid for two children after they had reached the age of majority. The New Hampshire court reasoned that the word "minor" did not appear in the custody and support statute, and that the legislature would have included "minor" if it had intended to limit support to minor children.

Hinchey, 625 P.2d at 300 (footnotes omitted).

The Hinchey court did not consider other relevant statutes in determining the legislative intent behind AS 09.55.210 [AS 25.24.160]. First, as noted above, AS 09.55.220 [AS 25.24.170] authorizes a court to modify a child support order to provide "for the care of the minor children." (Emphasis added). Second, AS 11.51.120 states that a person is criminally liable if, "being a person legally charged with the support of a child under 18 years of age, he fails without lawful excuse to provide support for the child." Finally, a child of married parents has no legal right to post-majority educational support in Alaska. His only legal recourse to obtain post-majority aid is under AS 25.20.030, which provides that "[e]ach parent is bound to maintain his children when poor and unable to work to maintain themselves."

In light of these provisions, we are not convinced that the legislature intended to provide for post-majority educational support in either an original decree, or in a modification of the original decree. To the extent Hinchey is inconsistent with this conclusion, it is overruled. The superior court correctly denied Vivian Dowling's motion, and its judgment is AFFIRMED. ⁷

MATTHEWS, Justice, with whom RABINOWITZ, Justice, joins, dissenting.

Today's opinion overrules the holding of Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981) that a court may order a divorced parent to pay educational support to adult children for three reasons which are largely left to implication:

(1) Because AS 09.55.220, a statute not involved in Hinchey, authorizes modification of a child support order as to "minor children." The majority apparently believes that because of the language of § 220 courts, by negative implication, lack authority to modify a decree which provides support for adult children. Premised on this belief, the court evidently concludes that no decree providing support for adult children is permissible.

(2) Because AS 11.51.120 makes it a crime to fail to support minor, but not adult children.

(3) Because an adult child of married parents is not generally entitled to parental support, the court apparently believes that it follows that the legislature meant to bar a court in a divorce action from ordering post-majority educational support.

In my view all of these reasons are invalid.

I.

Turning to the first reason for the majority's decision, I do not agree that AS 09.55.220 can properly be read to impose, by means of a negative implication, a bar on the modification of a divorce decree which provides for post-majority child support. It has been well recognized that courts have the power to provide post-majority support for handicapped children. See H. Clark, Law of Domestic Relations § 15.1, at 495 (1968). See also Wells v. Wells, 227 N.C. 614, 44 S.E.2d 31 (1947); Commonwealth ex rel. Groff v. Groff, 173 Pa.Super. 535, 98 A.2d 449 (1953); Van Tinker v. Van Tinker, 38 Wash.2d 390, 229 P.2d 333 (1951). See generally Annot., 1 A.L.R.2d 910, 921 (1948). Likewise, it cannot be doubted that a separation...