Fevig v. Fevig
| Decision Date | 26 January 1977 |
| Docket Number | No. 11040,11040 |
| Citation | 1977 NMSC 5,559 P.2d 839,90 N.M. 51 |
| Parties | Valerie A. FEVIG, as guardian of the persons and Estates of Mary Louise Fevig and Donna Jean Fevig, minors, Petitioner-Appellant, v. Valrie Marjorie FEVIG and Walter W. Fevig, Respondents-Appellees. |
| Court | New Mexico Supreme Court |
Petitioner-appellant Valerie A. Fevig, as guardian of the persons and estates of her minor sisters Mary Louise and Donna Jean Fevig, sought a decree from the trial court ordering their parents, Valrie M. Fevig and Walter Fevig, respondents-appellees, to contribute to the support and maintenance of the two minor children. The trial court found for the respondents. Petitioner appeals.
On April 17, 1970, the respondents were divorced. Valrie M. Fevig was awarded custody of Mary and Donna, but on October 23, 1970, custody of them was awarded to Walter Fevig. The children stayed with their father until late April or early May, 1975, when they moved out of their father's home and moved in which their older sister Valerie. On June 11, 1975, Valerie was appointed guardian of the persons and estates of Mary and Donna. Valerie filed for welfare assistance to enable her to support her two sisters, and she received $129 per month. On January 9, 1976, Valerie filed suit against respondents, alleging both had neglected to provide for their minor children, and requested an order of the court to compel contribution to their support.
The trial court held that (1) the minor children voluntarily left their home and thus relieved their parents from their support obligation, (2) the children were emancipated, and (3) the petitioner stood in loco parentis to the children. Thus the trial court concluded neither respondent owed a duty to support the two minor children.
Appellant first argues that the children are not emancipated based upon the facts presented. Appellees argue that since Mary and Donna left voluntarily and independently, they had emancipated themselves. The facts are mostly undisputed. Mary and Donna did not get along with their stepmother (Walter remarried). One day they had an argument with their father about keeping their room clean. Their father told them that if they could not keep their room clean, they could go to their mother. Mary Fevig testified to the exchange as follows:
. . . all my father said, 'Well, if you love your mother so much, why don't you go back with her?' And his wife said, 'Why don't you pack up your bags right now,' so we left.
Mary and Donna left with some of their clothes, but they went to their sister's home instead.
Parents have a duty to support their children until they reach the age of majority or are otherwise emancipated. Mason v. Mason, 84 N.M. 720, 507 P.2d 781 (1973). In the case before us, neither child has reached the age of majority. Thus, in order to sever the parental duty of support, the children had to be emancipated. By voluntarily leaving their father's home after an argument, did Donna and Mary emancipate themselves? We think not.
The power to emancipate a minor resides in that parent or those parents having the duty to support the child. Gillikin v. Burbage,263 N.C. 317, 139 S.E.2d 753 (1965). An express emancipation of a minor takes place when the parent freely and voluntarily agrees with his child, who is able to care and provide for himself, that he may leave home, earn his own living, and do as he pleases with his earnings. Rounds Bros. v. McDaniel,133 Ky. 669, 118 S.W. 956 (1909); cf. Gillikin v. Burbage, supra; Merithew v. Ellis, 116 Me. 468, 102 A. 301 (1917), 2 A.L.R. 1429 (1919). There is no evidence that Mary and Donna agreed that their parents were to be relieved of the responsibility of supporting them. Although she agreed to become their guardian, Valerie never agreed to furnish all the monetary support for her younger sisters. Walter Fevig, who earns approximately $1000 per month, testified at trial that he expected to furnish some support, and Valrie Fevig, who earns approximately $700 per month, stated she would be willing to furnish support for her daughters. Neither Donna nor Mary was able to care...
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