Gazale v. Gazale, 770493

• Decision Date: 12 January 1979
• Docket Number: No. 770493,770493
• Citation: 250 S.E.2d 365,219 Va. 775
• Court: Virginia Supreme Court
• Parties: William Joseph GAZALE v. Solange Ulckar GAZALE (now Solange Ulckar Hedberg). Record

Page 365

250 S.E.2d 365

219 Va. 775

William Joseph GAZALE v. Solange Ulckar GAZALE (now Solange Ulckar Hedberg).

Record No. 770493.

Supreme Court of Virginia.

Jan. 12, 1979.

William J. LoPorto, Fairfax, for appellant.

Burke F. McCahill, Alexandria (Quinlan H. Hancock, Alexandria, on brief), for appellee.

Before CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

POFF, Justice.

This appeal raises the latest in a series of questions concerning the jurisdiction of the courts to order child support payments beyond the child's 18th birthday.

In a property settlement contract executed January 10, 1972, William Gazale (William) and Solange Gazale (Solange), his wife, agreed that Solange would have custody of their minor children, the youngest of whom, Pamela, was born June 18, 1962, and that William would make child support payments of "$267 per month per child . . . until such time as each child shall attain the age of 21 years, become(s) married, self-supporting or otherwise emancipated." The contract further required William to pay the costs of certain other designated needs of the children.

Effective July 1, 1972, the General Assembly reduced the age of majority from 21 to 18 years. Code § 1-13.42.

By decree entered September 25, 1972, Solange was granted a final divorce. The decree affirmed, ratified, and incorporated the terms of the property settlement contract.

On November 29, 1973, the chancellor entered a consent decree awarding William custody of Pamela and reducing the total monthly child support payments by $267 "until the further Order of this Court."

By another order entered December 17, 1976, the custody of Pamela was restored to Solange, and the monthly payment required by the contract for her support was reinstated for the same period fixed in the contract.

Appealing from this order, William contends that the consent decree supplanted the terms of the property settlement contract providing monthly support payments for Pamela and "deprived the Court of jurisdiction to order support beyond age 18."

We have decided four appeals questioning the effect of the statutory reduction in the age of majority upon child support orders.

In Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974), the parties executed a separation agreement which obligated the husband to make child support payments until the children became 21 years of age or "otherwise emancipated", and this contract was incorporated into the divorce decree entered in September, 1970. New statutes are usually presumed to operate prospectively only, Code § 1-16, and contractual rights and duties are controlled by the law in effect at the time the contract was executed. Applying these rules and considering several provisions of the contract reflecting the parties' intent to provide for the children not only before but also after they attained their majority, we held that the parties never meant the term "otherwise emancipated" to include emancipation resulting from a subsequent change in the law.

Next, we decided Eaton v. Eaton, 215 Va. 824, 213 S.E.2d 789 (1975). There, a separation agreement executed by the parties required the husband to make monthly payments of $300 for support of a son until he reached age 21. Unlike the Paul contract, the Eaton contract was never incorporated in the divorce decree. That decree, entered in March, 1972, ordered the husband to make monthly payments of $200. Following the statutory reduction in the age of majority, the court entered another order reducing the amount to $125. Later, after the child attained age 18, the court relieved the husband of any further support obligation, and the wife appealed. Noting that the court's authority to order child support payments was limited to "minor children", we held that the court lacked jurisdiction to order child support payments for a child older than 18. We distinguished Paul on two grounds. First, since the challenged order in Eaton was entered subsequent to enactment of the statute changing the age of majority, the question of retroactivity raised in Paul was not involved. Second, while in Paul, "there were no subsequent support orders supplanting the contract provisions", which had been incorporated in the divorce decree, 215 Va. at 827, 213 S.E.2d at 791, in Eaton the contract provisions pertaining to child support were "supplanted by subsequent court orders in the divorce suit dealing specifically with that subject." Id.

In Meredith v. Meredith, 216 Va. 636, 222 S.E.2d 511 (1976), the 1970 divorce decree incorporated a contract requiring the father to support the child "until such child shall reach his majority." 216 Va. at 637, 222 S.E.2d at 511. Construing the intent of that language, and citing cases from other jurisdictions holding that majority or minority is merely a status and not a vested right, a status the contracting parties were charged with knowing was subject to change by the legislature, we held that the parties intended the term of support duty to...