In re Marriage of Schoby, No. 82,074.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtABBOTT, J.
Citation4 P.3d 604,269 Kan. 114
Decision Date21 April 2000
Docket NumberNo. 82,074.
PartiesIn the Matter of the Marriage of DONNA J. SCHOBY, Appellee, and DAVID SCOTT SCHOBY, Appellant.

269 Kan. 114
4 P.3d 604

In the Matter of the Marriage of DONNA J. SCHOBY, Appellee, and
DAVID SCOTT SCHOBY, Appellant

No. 82,074.

Supreme Court of Kansas.

Opinion filed April 21, 2000.


S. Mark Edwards, of Hoover, Schermerhorn, Edwards, Pinaire & Rombold, of Junction City, argued the cause and was on the brief for appellant.

Charles W. Harper, of Harper, Hornbaker, Altenhofen & Opat, Chartered, of Junction City, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

The trial court declined to modify the child support obligations of David Scott Schoby shortly after his minor son Michael,

269 Kan. 115
age 16, was married. The Court of Appeals, on a 2 to 1 vote, affirmed the trial court. We granted David's petition for review

The issue before us is clear cut. When the parents agree in a property settlement agreement that child support payments shall cease when a minor child marries and the trial court approves the agreement and one of the parties' minor children later marries, does that marriage automatically emancipate the child or is the proper procedure for the parent/obligor to seek prospective modification or termination of the support obligation?

David and Donna J. Schoby were divorced in 1994. Michael is the oldest of four children. The parties entered into a property settlement agreement agreeing to joint custody of the children, with Donna having physical custody. Child support was agreed on at $940 a month "payable thereafter until such time as the minor children respectively reach the age of 18 years, marry, become legally emancipated or die ... all in accordance with the laws of the State of Kansas."

On July 17, 1997, Michael, then 16 years of age, married. David was not informed of this fact. It does not appear that David or the court was informed of the marriage in March 1998, when David requested and received a reduction in child support payments (from $940 a month to $581 a month) apparently due to a reduction in his income.

David learned of the marriage in April 1998 when Michael visited him in Iowa. A motion to abate child support for Michael was filed, alleging that Michael "has lived on his own with his wife and has been emancipated." The trial court was requested to adjust the amount of child support, both past and future.

A proceeding was had on the motion. No sworn testimony was given, although Donna did make several statements on the record and her counsel proffered testimony. Donna stated that she continued to support Michael after his marriage by purchasing food, paying utilities, and his rent while he was enrolled in school through 1997. After visiting David, Michael and his wife separated and Michael moved in with Donna, who is supporting him.

The trial court held the marriage of Michael did not result in his emancipation and that he "is dependent on his mother and custodial

269 Kan. 116
parent for his past and ongoing support and well-being and he continues to reside with his mother." The trial court held the marriage of a minor child in Kansas is not an event terminating a parent's support obligation and denied the motion to terminate support for Michael

David does not challenge the admissibility or sufficiency of the evidence. David argues that the parties agreed that marriage of a minor child terminated the right to child support for that child and that the court approved that provision when it approved the property settlement agreement. Thus, David argues, as a matter of law, child support ceases on the first day of the month following the child's marriage.

The Court of Appeals affirmed the order of the district court, stating:

"First, the right of a child to support from his or her father cannot be taken away or unfairly diminished by an agreement between the divorcing parents. Thompson v. Thompson, 205 Kan. at 633 (citing Grimes v. Grimes, 179 Kan. 340, 343, 295 P.2d 646 [1956]). Second, the public policy of Kansas is stated in 60-1610(a) and specifically provides for the payment of child support until a child reaches 18 years of age. An order of a district court providing for automatic termination upon emancipation or marriage of the child would be no less contrary to public policy. We know of no circumstance short of death of the parent obligor or the child that calls for automatic termination of child support before a child reaches 18 years of age. We conclude that if termination is appropriate, the parent obligor must seek prospective termination by filing a motion under 60-1610(a). Accordingly, we affirm the judgment of the trial court." In re Schoby, 26 Kan. App.2d 317, 319, 982 P.2d 406 (1999).

Kansas has no statute which specifically terminates the duty to pay child support upon the marriage of a minor. The only automatic terminating events in Kansas are the child reaching the age of majority, the death of the child, or the death of the payor parent.

Supreme Court Administrative Order No. 128 governs the Child Support Guidelines in Kansas and sets forth that child support may be modified "when there is a material change in circumstance." (1999 Kan. Ct. R. Annot. 107). The district court may consider any of the traditional considerations and may also consider whether a child has been emancipated.

K.S.A. 1999 Supp. 60-1610 sets forth in pertinent part:

269 Kan. 117
"(a) Minor children. (1) Child support and education. The court shall make provisions for the support and education of the minor children. The court may modify or change any prior order, including any order issued in a title IV-D case, within three years of the date of the original order or modification order, when a material change in circumstances is shown, irrespective of the
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28 practice notes
  • Taylor v. Sedgwick Cnty. Bd. of Comm'rs, Case No. 18-2674-DDC-JPO
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • September 30, 2019
    ...Plaintiff and Ms. Slater's child support case is ongoing until their children reach the age of majority.7 See In re Marriage of Schoby, 4 P.3d 604, 607 (Kan. 2000) (explaining that child support "may be modified at any time circumstances render such a change proper . . . ." (citation and in......
  • State of Kan. ex rel. Sec. of Srs v. Bohrer, No. 95,935.
    • United States
    • United States State Supreme Court of Kansas
    • August 8, 2008
    ...until the child reaches the age of majority, or until the death of the child or the obligor parent. See In re Marriage of Schoby, 269 Kan. 114, 116, 4 P.3d 604 (2000). The common-law duty of support ends, however, if parental rights are terminated. State ex rel. Secretary of SRS v. Clear, 2......
  • Matter of Marriage of Whildin, No. 119,489
    • United States
    • Court of Appeals of Kansas
    • July 5, 2019
    ...district court affirmed the hearing officer's child support rulings. In its ruling, the district court cited In re Marriage of Schoby , 269 Kan. 114, Syl. ¶ 1, 4 P.3d 604 (2000), for the rule that "[d]ivorced parents cannot legally reduce child support or terminate the obligation by a contr......
  • Matter of Marriage of Moler and Moler, No. 119,113
    • United States
    • Court of Appeals of Kansas
    • July 26, 2019
    ...support is a right belonging to the child which cannot be reduced or terminated by agreement between parents. In re Marriage of Schoby , 269 Kan. 114, Syl. ¶ 1, 4 P.3d 604 (2000) ; see Brady v. Brady , 225 Kan. 485, 488-89, 592 P.2d 865 (1979) ("Divorced parents cannot legally reduce child ......
  • Request a trial to view additional results
28 cases
  • Taylor v. Sedgwick Cnty. Bd. of Comm'rs, Case No. 18-2674-DDC-JPO
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • September 30, 2019
    ...Plaintiff and Ms. Slater's child support case is ongoing until their children reach the age of majority.7 See In re Marriage of Schoby, 4 P.3d 604, 607 (Kan. 2000) (explaining that child support "may be modified at any time circumstances render such a change proper . . . ." (citation and in......
  • State of Kan. ex rel. Sec. of Srs v. Bohrer, No. 95,935.
    • United States
    • United States State Supreme Court of Kansas
    • August 8, 2008
    ...until the child reaches the age of majority, or until the death of the child or the obligor parent. See In re Marriage of Schoby, 269 Kan. 114, 116, 4 P.3d 604 (2000). The common-law duty of support ends, however, if parental rights are terminated. State ex rel. Secretary of SRS v. Clear, 2......
  • Matter of Marriage of Whildin, No. 119,489
    • United States
    • Court of Appeals of Kansas
    • July 5, 2019
    ...district court affirmed the hearing officer's child support rulings. In its ruling, the district court cited In re Marriage of Schoby , 269 Kan. 114, Syl. ¶ 1, 4 P.3d 604 (2000), for the rule that "[d]ivorced parents cannot legally reduce child support or terminate the obligation by a contr......
  • Matter of Marriage of Moler and Moler, No. 119,113
    • United States
    • Court of Appeals of Kansas
    • July 26, 2019
    ...support is a right belonging to the child which cannot be reduced or terminated by agreement between parents. In re Marriage of Schoby , 269 Kan. 114, Syl. ¶ 1, 4 P.3d 604 (2000) ; see Brady v. Brady , 225 Kan. 485, 488-89, 592 P.2d 865 (1979) ("Divorced parents cannot legally reduce child ......
  • Request a trial to view additional results

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