Ferrer v. Ferrer, 2

• Decision Date: 01 December 1983
• Docket Number: No. 2,CA-CIV,2
• Citation: 673 P.2d 336,138 Ariz. 138
• Parties: Linda M. FERRER, Petitioner/Appellant, v. Paul T. FERRER, IV, Respondent/Appellee. 4824.
• Court: Arizona Court of Appeals

Page 336

673 P.2d 336

138 Ariz. 138

Linda M. FERRER, Petitioner/Appellant, v. Paul T. FERRER, IV, Respondent/Appellee.

No. 2 CA-CIV 4824.

Court of Appeals of Arizona Division 2.

Dec. 1, 1983.

L. Tipton Jackson, Jr., Tucson, for petitioner/appellant.

Little, Fisher & Siegel, P.C. by Barbara E. Fisher, Tucson, for respondent/appellee.

OPINION

HATHAWAY, Judge.

Appellant/wife contends on appeal that the trial court erred in not ordering support beyond minority for a disabled child who had not yet reached her majority, and further contends that the trial court abused its discretion in disposing of equity in the residence, in not awarding arrearages for child support, and in not awarding attorneys fees.

The petition for dissolution of the marriage was filed by the wife in propria persona on November 30, 1979, in Pima County. She sought, and was granted, child support for their four children, ages 7 through 14, in the sum of $125 per month per child, "ending at majority age." The decree was entered February 1, 1980.

On August 3, 1982, through counsel, she filed a verified petition for order to show cause seeking, among other things, support of the second daughter of the parties, a disabled child, beyond the age of emancipation, pursuant to A.R.S. § 25-320(B).

The court found that the 14-year-old daughter of the parties was suffering from a disability, but concluded that how that disability would affect her emotional status and maturity after her high school years was uncertain. The court found that the issue of continuing child support past emancipation for a child that was disabled at the time the decree was entered should have been covered in the decree, and that it could not be done two years later, and therefore denied the request for child support on the ground of disability beyond emancipation.

The trial court found the appellee/husband's interest in the residence to be $9,500 and ordered payment thereof. It also found as to the wife's prayer for arrearages that the husband had overpaid $169.54 and ordered a credit. The court ordered each party to pay their own costs and attorneys fees.

We agree that child support for the period beyond the child's emancipation, based on her disability, should be denied at this juncture. However, we disagree with the portion of the court's order that "... FINDS the issue of continuing child support past emancipation for a child that was disabled at the time the Decree was entered should have been covered in the Decree. It cannot be done two years later." It is our opinion that this portion of the order is inconsistent with the finding that a prognostication of disability upon emancipation was conjectural. That being the case, the matter must await a time when the question may be properly evaluated. In Provinzano v. Provinzano, 116 Ariz. 571, 570 P.2d 513 (App.1977), Division One of this court considered whether A.R.S. § 25-320(B) ¹ authorizes a support award for a disabled adult child when at the time of the commencement of the dissolution proceedings the disabled child had already attained adulthood, and legal custody had not been vested in either parent. The statute was amended in 1980 to add the section which appears in italics:

"B. In the case of a mentally or physically disabled child, if the court, after considering the factors set forth in subsection A, deems it appropriate, the court may order support to continue past the age of majority and to be paid to the custodial parent, guardian or child, even if at the time of the filing of a petition or at the time of the final decree, the child has reached the age of majority." (Emphasis added)

Although the necessity that the court have acquired jurisdiction prior to the time the...