Eaton v. Eaton, 740618

• Decision Date: 28 April 1975
• Docket Number: No. 740618,740618
• Citation: 213 S.E.2d 789,215 Va. 824
• Parties: Norma Faye Jones EATON v. Peter Thomas EATON, Sr. Record
• Court: Virginia Supreme Court

Page 789

213 S.E.2d 789

215 Va. 824

Norma Faye Jones EATON v. Peter Thomas EATON, Sr.

Record No. 740618.

Supreme Court of Virginia.

April 28, 1975.

George F. Tidey, Richmond, for appellant.

Ivy P. Blue, Jr., Hanover, for appellee.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

In this divorce suit, we deal with the effect of legislation lowering the age of majority on a court order for child support.

On May 13, 1971, Peter Thomas Eaton, Sr., the appellee, was granted a divorce from bed and board from Norma Faye Jones Eaton (now Norma Jones Mills), the appellant. The decree provided, Inter alia, that a copy of a property settlement and support agreement dated April 19, 1971, 'be filed with the papers in this cause.' The agreement provided for the payment by Eaton of $300 per month to his wife for the support of the child of the parties, Peter Thomas Eaton, Jr., 'until he reaches the age of twenty-one years.' The decree of divorce from the bond of matrimony was entered on March 31, 1972, and provided that the father pay to the mother 'the sum of $200.00 each month for the care, support and maintenance of his minor son.' This decree did not refer to the agreement.

In legislation effective July 1, 1972, the General Assembly enacted Code § 1--13.42 ¹ which changed the age of majority from 21 to 18.

On November 20, 1972, upon the father's motion, the Chancellor entered an order requiring payment by the father to the mother of 'the sum of $125.00 each and every month for the support and maintenance of the minor child. Such sum is to be paid . . . until the further order of (the) Court.'

The child attained the age of 18 years on September 18, 1973. During the preceding month, the father filed a petition and notice asking the court to relieve him of the obligation to pay child support when his son reached his majority. After several continuances, a hearing on the petition was held, and on March 5, 1974, the order appealed from was entered. It relieved the father of any requirement to pay for the support of his son after the son reached the age of 18.

The mother raises two issues on appeal. She argues, first, that we should apply to this suit the rationale of our decision in Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974), and hold that the father is required to continue support payments until the son reaches the age of 21. She argues, alternatively, that even if the father's obligation to pay support terminated when the child attained age 18, nevertheless, the trial court erred because of the Nunc pro tunc nature of the order appealed from. She argues that the monthly payments provided by the November, 1972, order became vested when due and that the Chancellor was without authority to cancel retroactively the payments which accrued prior to March 5, 1974, and subsequent to September 18, 1973, the child's 18th birthday. ² We disagree with both of these contentions and affirm.

Jurisdiction in divorce suits is controlled entirely by statute. Jackson v. Jackson, 211 Va. 718, 719, 180 S.E.2d 500 (1971). Our divorce laws give the court authority to provide for the maintenance and support of 'minor children.' Code §§ 20--103, --107. When the court entered its support order in November, 1972, 'minor children' meant those under the age of 18 years, as the result of the enactment of Code § 1--13.42. This order was a 'new decree' for child support. Code § 20--108. This order, and not the prior order of March, 1972, which was entered before the change in law, controlled the father's duty to pay support. Therefore, when this child reached his majority on September 18, 1973, the father's duty and obligation to pay support according to the November, 1972, order terminated, the divorce court's statutory authority to provide for support, under these facts, being limited to the child's minority.

The rationale of Paul is not applicable here. In Paul, a 1969 property settlement and support agreement, which, in 1970, was affirmed and ratified in the bed and board and final divorce decrees, provided that the father would make support payments for three children "until said children are 21, shall marry, enter or be inducted into the armed forces of the United States, become full-time gainfully employed or otherwise emancipated." 214 Va. at 652, 203 S.E.2d at 124. There, we held that the 1972 legislation lowering the age of majority did not operate to relieve the father from making the agreed support payments for two of the three children who had attained age 18. We brought to bear upon that agreement the basic rules for construction of contracts. We also applied the rule of statutory construction that new legislation is usually presumed prospective and not retrospective in its operation, noting Code § 1--16, which provides that no new law shall be construed to affect 'any right accrued, or claim arising' before the new legislation takes effect. Accordingly, we held that the parties to the Paul contract intended child support payments to continue until age 21 unless emancipation, under the law as it existed in 1969, occurred. We concluded that the words 'otherwise emancipated,' used in the agreement, did not contemplate emancipation by a change of law such as was effected by the 1972 legislation in question.

In the present suit, there is no reason to construe the contract and to ascertain the intention of the contracting parties. The agreement of the parties is only incidentally involved, because, insofar as its effect on the divorce suit is concerned, the contract provisions pertaining to child support were supplanted by subsequent court orders in the divorce suit dealing specifically with that subject. In Paul, the agreement was directly involved because the trial court had ratified and affirmed it. The court had ordered the parties to comply with the agreement, and there were no subsequent support orders supplanting the contract provisions. Moreover, the issue presented in Paul dealing with a retroactive application of new legislation does not arise in this suit. In the present case, the ...