Embree v. Embree

• Decision Date: 29 March 1963
• Docket Number: Nos. 9145,s. 9145
• Citation: 85 Idaho 443,380 P.2d 216
• Parties: Ruth EMBREE, Plaintiff-Appellant, v. Clayton EMBREE, Defendant-Respondent (two cases). to 9146.
• Court: Idaho Supreme Court

Page 216

380 P.2d 216

85 Idaho 443

Ruth EMBREE, Plaintiff-Appellant, v. Clayton EMBREE, Defendant-Respondent (two cases).

Nos. 9145 to 9146.

Supreme Court of Idaho.

March 29, 1963.

May & May, Twin Falls, for appellant.

Kramer & Walker, Twin Falls, for respondent.

SMITH, Justice.

Two appeals are consolidated for hearing and disposition.

No. 9145 is an appeal from an order of the trial court granting defendant's (respondent) motion for modification of a divorce decree as regards its provisions pertaining to child support.

No. 9146 is an appeal from an order of the trial court denying plaintiff's (appellant) motion for allowance of costs and attorney fees on appeal.

May 21, 1954, after thirteen years of married life, plaintiff obtained a divorce from defendant. Plaintiff was awarded the custody of a male child, the only issue of the marriage, and child support of $50 a month ordered paid by defendant during the child's minority.

July 21, 1961, four months prior to the time the boy attained the age of 18 years, defendant presented a motion, supported by his affidavit, for modification of the divorce decree as respects the child support. Defendant, as grounds for the motion, alleged that the boy had become self-supporting; that defendant had sustained an industrial injury causative, to a medical probability, of a lengthy period of physical incapacity; that he is not steadily employed; that he is unable to make the child support payments in the future, and that such alleged facts 'constitute a material permanent change in the circumstances of these parties which would warrant the court in issuing an order modifying the decree.'

Plaintiff, by her counter affidavit, admitted the boy's age; that he owned an automobile and was able to pay part of his expenses by his work; admitted defendant's industrial injury but alleged that he received a salary in regular employment; that defendant had remarried and that his present wife was employed and that plaintiff, although remarried, was seeking a divorce from her present husband. She prayed for an order denying defendant's motion for modification.

September 29, 1961, the trial court, after a hearing on defendant's motion, entered an order modifying the decree of divorce. The court ordered that defendant be relieved of all child support payments after November 24, 1961, when the child shall have attained the age of 18 years. November 17, 1961, plaintiff appealed from this order, (Appeal No. 9145).

November 24, 1961, plaintiff presented to the trial court a motion, supported by her affidavit, for costs and attorney fees on appeal. Defendant, in opposition thereto, filed a counter affidavit alleging his physical handicap due to industrial injury and inability to pursue full time employment; his take-home pay of $86.00 a week; his inability to pay the sums which plaintiff requested; his indebtedness approximating $2900; his lack of property other than an automobile; the income of plaintiff and the son, each of whom own an automobile, and the payments being made on the son's car; that plaintiff has never required the son to contribute toward his maintenance and support although he is 18 years of age and steadily employed. December 8, 1961, after a hearing the court entered an order denying plaintiff's motion. Plaintiff appealed from such order (Appeal No. 9146).

Plaintiff, on Appeal No. 9145, assigns error of the trial court in entering the order modifying the decree of divorce, contending that 'no permanent change of circumstances was shown,' as well as urging the child's minority, his school attendance, and his alleged physical frailty.

Plaintiff in effect urges that once a decree has been entered providing for payment of child support until the child attains majority (as the original decree herein provides), such payments must continue in spite of any contingency until the child attains such age which, in the case of a male, is 21 years, I.C. § 32-101.

I.C. § 32-705, which plaintiff cites in support of her position, reads:

'In an action for divorce the court may, before or after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.' (Emphasis supplied.)

Such section of the statute does not support plaintiff's position; rather, the emphasized portions show retention of jurisdiction for the purpose of modifying the judgment at any time after its entry, as regards the provisions of child custody, care and education, until the child attains the age of majority. Arkoosh v. Arkoosh, 66 Idaho 607, 164 P.2d 590; Application of Martin, 76 Idaho 179, 279 P.2d 873, 53 A.L.R.2d 582. Nor does Piatt v. Piatt, 32 Idaho 407, 184 P. 470, cited by plaintiff, support her position as shown by the observation of the court that in the matter of providing maintenance for the children, 'the power of the court ends upon their attaining their majority.'

The fact that the child is a minor is not the sole criterion of the court's power or jurisdiction to modify the child maintenance obligation of the original decree; rather the fact of dependency of the child constitutes the governing criterion to be considered in imposing the obligation, and thereafter in continuing, modifying or terminating such obligation. A summary of such basic concept is to be found in Ditmar v. Ditmar, 48 Wash.2d 373, 293 P.2d 759, in language of the Supreme Court of Washington, as follows:

'The court's jurisdiction to enforce support-money judgments is predicated upon the continued dependency of the children in question. It follows that a mother cannot compel payments of support money for children whose dependency upon her has ceased by reason of death, emancipation by marriage, attainment of majority, service in the Armed Forces of the United States, adoption, incarceration in penal or other custodial institutions, or economic sufficiency resulting from earnings, gifts, or inheritance. In the absence of specific provisions to the contrary, there is a necessary implication in every decree for child support, that its binding effect shall extend into the future only for the period during which the children's dependency upon their custodian continues. [Citations.]'

In Thomas v. Thomas, Mo.App., 238 S.W.2d 454, defendant, the divorced husband, succeeded in obtaining a modification of the divorce decree. Plaintiff, the divorced wife, maintained that the obligation of child support of the original decree continued until the child's attainment of majority. The Missouri Court rejected plaintiff's theory of child support in language as follows:

'The defendant [wife] appealed, and urges that the court erred in sustaining plaintiff's motion because it is the primary duty of a father to furnish support for a child until said child attains his majority, 'absent a change in condition.' That is a correct statement of a general principle of law, but it does not mean that under all conditions and circumstances a court must require the father to contribute to the support of a son merely because he is under 21 years of age.'

See also Ashton v. Ashton, 59 Idaho 408, 83 P.2d 991, which recognized that under C.S., sec. 4643, now I.C. § 32-705, the court has power at any time to modify the original decree in its aspects of child maintenance. In Application of Martin, 76 Idaho 179, 279 P.2d 873, 53 A.L.R.2d 582, the court held that '[d]ecrees and orders affecting the custody and support of children are subject to the continuing control of the court and do not become final.'

Thus, the child's age is not the sole criterion of the trial court's power or jurisdiction to modify the child maintenance obligation of the original decree.

In fixing the amount to be paid under the obligation of child support, of primary consideration is the financial ability of the payor. A clear recognition of this basic concept appears in Humbird v. Humbird, 42 Idaho 29, 243 P. 827, quoted with approval from Ex parte Spencer, 83 Cal. 460, 23 P. 395, 17 Am.St.Rep. 266, as follows:

'In fixing this compensation or allowance, the court may regard the earning of the husband, or his ability to earn money (Eidenmuller v. Eidenmuller, 37 Cal. 364); and may subsequently reduce the amount (Eidenmuller v. Eidenmuller, 37 Cal. 364); or increase it (Ex parte Cottrell, 59 Cal. 417) as, in its opinion, the changed circumstances of the parties shall warrant, * * *.'

See also Ashton v. Ashton, 59 Idaho 408, 83 P.2d 991; Hampshire v. Hampshire, 70 Idaho 522, 223 P.2d 950, 21 A.L.R.2d 1159; Application of Martin, 76 Idaho 179, 279

P.2d 873, 53 A.L.R.2d 582; Gilbert v. Gilbert, 98 Cal.App.2d 444, 220 P.2d 573.

Additionally, in fixing the amount of the payments for child maintenance not only should the order be predicated upon the payor's ability to pay, but upon the necessity of the child or children. Hampshire v. Hampshire, supra; Gilbert v. Gilbert, supra.

Supportive of her argument that the minor's age is the controlling factor in determining whether defendant can be released of the obligation of child support, plaintiff advances the aspect of non-emancipation of the son. Here, however, defendant raised the issue, for consideration by the trial court, of the child's emancipation by reason of his alleged self-support through his activities, work and earnings. Emancipation of a minor child by virtue of his own self-sufficiency is a factor which the trial court may properly consider in relieving a parent from his obligation of child support. Blue v. Blue, 152 Neb. 82, 40 N.W.2d 268; Thomas v. Thomas, Mo.App., 238 S.W.2d 454; Dearborn v. Dearborn, 278 App.Div. 943, 104 N.Y.S.2d 868; Wells v. Wells, Ohio Com.Pl., 86 N.E.2d 818; 37 Cal.Jur.2d, Parent & Child, § 16; 39 Am.Jur., Parent & Child, § 64. In Ditmar v. Ditmar, 48 Wash.2d 373, 293 P.2d 759, is listed 'emancipation by * * * economic sufficiency resulting from earnings, * * *' as one of...