Johansen v. Johansen, 20001127-CA.

• Decision Date: 14 March 2002
• Docket Number: No. 20001127-CA.,20001127-CA.
• Citation: Johansen v. Johansen, 2002 UT App 75, 45 P.3d 520 (Utah App. 2002)
• Parties: Kathryn Ann JOHANSEN nka Kathryn Ann Turner, Plaintiff and Appellee, v. Paul R. JOHANSEN, Defendant and Appellant. State of Utah, Office of Recovery Services, Intervenor and Appellee.
• Court: Utah Court of Appeals

45 P.3d 520

2002 UT App 75

Kathryn Ann JOHANSEN nka Kathryn Ann Turner, Plaintiff and Appellee, v. Paul R. JOHANSEN, Defendant and Appellant.

State of Utah, Office of Recovery Services, Intervenor and Appellee.

No. 20001127-CA.

Court of Appeals of Utah.

March 14, 2002.

Jeffrey Robinson, Robinson & Sheen LLC, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General, Karma K. Dixon, Assistant Attorney General, and Steven C. Russell, Affordable Legal Advocates, Salt Lake City, for Appellee.

Before JACKSON, P.J., and GREENWOOD, and THORNE JJ.

OPINION

JACKSON, Presiding Judge:

¶ 1 Appellant Paul R. Johansen appeals the trial court's denial of his motion for partial summary judgment. We reverse and remand.

BACKGROUND

¶ 2 Appellant and Appellee were divorced in January, 1989. At that time they had three children: Laura, Lynsay, and Leisa. The divorce decree awarded Appellee a lump sum of $540.00 per month in child support, and did not address changes in child support when the children became "emancipated"¹ by reaching eighteen years of age. Laura reached her eighteenth birthday on September 2, 1995, as Lynsay did on October 1, 1997. Intervenor, Utah Office of Recovery Services (ORS), "collected child support and sought to collect arrears from [Appellant] after the children's eighteenth birthdays at the original child support amount without any adjustment." On February 15, 2000, Appellant petitioned the trial court to modify his child support obligation, seeking an order that would retroactively reduce his child support obligation from the time Laura and Lynsay became emancipated. The trial court denied his motion for partial summary judgment as to this issue. This appeal followed.

ISSUES AND STANDARD OF REVIEW

¶ 3 Appellant challenges the trial court's conclusion that "[b]ecause the decree of divorce was entered prior to" the enactment of Utah Code Ann. § 78-45-7.10 (Supp. 2001)² (Automatic Adjustment Statute), that the Automatic Adjustment Statute, which "provides for an automatic adjustment of child support when a child" becomes emancipated, does not apply.³ Appellant also challenges the trial court's legal conclusion that

[b]ecause the parties' decree neither specifies a per-child amount of child support nor the incomes of the parties at the time the decree was entered, it is impossible for the Court to evaluate retroactively what child support should have been when the first child reached age 18 or when the second child reached 18.

¶ 4 "`"Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Because a summary judgment presents questions of law, we review the trial court's ruling for correctness.'" Krambule v. Krambule, 1999 UT App 357, ¶ 10, 994 P.2d 210 (citations omitted); see also Department of Human Servs. v. Jacoby, 1999 UT App 52, ¶ 7, 975 P.2d 939 ("`Whether a statute operates retroactively is a question of law, which we review for correctness without deference to the district court.'" (Citation omitted.)); Brinkerhoff v. Brinkerhoff, 945 P.2d 113, 115 (Utah Ct.App.1997) (applying a correction of error standard of review to interpretation of statute governing child support proceedings); Ball v. Peterson, 912 P.2d 1006, 1009 (Utah Ct.App.1996) (same).

ANALYSIS

¶ 5 We first address whether the Automatic Adjustment Statute may apply to support orders in force prior to the effective date of the statute. A statute may be applied retroactively where it "is merely procedural and does not `enlarge, eliminate, or destroy vested or contractual rights.'" Ball v. Peterson, 912 P.2d 1006, 1009 (Utah Ct. App.1996) (citation omitted); accord Pilcher v. State Dept. of Soc. Servs., 663 P.2d 450, 455 (Utah 1983). On the other hand, a statute is substantive and may not be applied retroactively where it "establishes `a primary right and duty which was not in existence at the time [the claim] arose.'" Id. (alteration in original) (quoting Washington Nat'l Ins. Co. v. Sherwood Assocs., 795 P.2d 665, 669-70 (Utah Ct.App.1990)); accord Brown & Root Indus. Serv. v. Industrial Comm'n, 947 P.2d 671, 675 (Utah 1997).

¶ 6 "[N]o one has any vested rights in a [child] support decree which statutorily may be changed from time to time by a court under its continuing jurisdiction...." Wiker v. Wiker, 600 P.2d 514, 515 (Utah 1978); accord Kocherov v. Kocherov, 775 S.W.2d 539, 541 (Mo.Ct.App.1989) ("`Since a child support order is modifiable after judgment. . . a child's right to future, unaccrued installments of child support is not a vested right.'" (Citation omitted.)). In other words, a child support payment does not become a vested right until it accrues. The Automatic Adjustment Statute became effective before the child support payments in question accrued. Indeed, the Automatic Adjustment Statute became effective April 24, 1989, see Utah Code Ann. § 78-45-7.10 (Supp. 1989), while Laura and Lynsay became eighteen years old on September 2, 1995 and October 1, 1997 respectively. Thus, at the time the statute became effective, no one had a vested right to the child support payments that would accrue after Laura's or Lynsay's eighteenth birthdays. Accordingly, the statute, as applied to Laura and Lynsay, "is merely procedural and does not `enlarge, eliminate, or destroy vested or contractual rights.'" Ball, 912 P.2d at 1009 (citation omitted). As a result, we conclude the Automatic Adjustment Statute may be applied retroactively to Laura and Lynsay.⁴ See id. ¶ 7 Appellant next challenges the trial court's conclusion that because the divorce decree awarding child support predated the child support guidelines, it is "impossible" to calculate the child support award according to those guidelines.⁵ Put differently, he argues the trial court interpreted the Automatic Adjustment Statute in a way that would render portions of it inoperable, thus presenting us with a question of statutory interpretation.

[O]ur primary goal when construing statutes is to evince "the true intent and purpose of the Legislature [as expressed through] the plain language of the Act." In doing so, we seek "to render all parts thereof relevant and meaningful," and we accordingly avoid interpretations that will render portions of a statute superfluous or inoperative.

Hall v. Utah State Dep't of Corr., 2001 UT 34, ¶ 15, 24 P.3d 958 (second alteration in original) (citations omitted).

¶ 8 We do not agree that the statute should be construed in a manner that renders it superfluous or inoperative. The Automatic Adjustment Statute reduces the combined child support obligation "to reflect the [amount] shown in the table for the remaining number of children due child support." Utah Code Ann. § 78-45-7.10 (emphasis added). Utah Code Ann. § 78-45-2(5) (Supp. 2001) provides that "`table' means the appropriate table in Section 78-45-7.14." Neither section specifies which year's table should be applied. "[O]missions in statutory language should `be taken note of and given effect.'" Biddle v. Washington Terrace City, 1999 UT 110, ¶ 14, 993 P.2d 875 (citation omitted). Giving effect to the Legislature's omission requires us to interpret the omission of a specific year as the Legislature's intent to apply tables in effect as of the same year as the omission. If it intended a different year's statute to be applied, it would have said so. Also, we cannot suppose that the Legislature intended this statute to be rendered inoperative simply because no "table" existed at the time many of the orders to which the statute would later apply were entered. Thus, giving effect to the Legislature's omission, and to avoid an interpretation that would often render the statute inoperative, we conclude "the table" referred to in the Automatic Adjustment Statute to be the base combined child support obligation table in effect the same year as the version of the Automatic Adjustment Statute that is being applied.⁶

¶ 9 Further, we note that the base combined child support obligation table, as applied here, is procedural in nature for the same reasons that the Automatic Adjustment Statute is procedural. Thus, the guidelines referred to in the Automatic Adjustment Statute may also be applied retroactively in this case. Accordingly, we reverse the trial court's ruling that calculating the child support award in this case is "impossible" simply because the divorce decree awarding child support predated the guidelines referenced in the Automatic Adjustment Statute.

¶ 10 Next, we address Appellant's challenge to the trial court's conclusion that "[b]ecause the parties' decree neither specifies a per-child amount of child support nor the incomes of the parties at the time the decree was entered, it is impossible for the Court to evaluate retroactively what child support should have been when the first child reached age 18 or when the second child reached 18." This challenge also presents us with a question of statutory interpretation. We determine that the trial court erred in its legal conclusion.

¶ 11 Nothing in the plain language of the statute makes automatic adjustment of a child support order dependent on whether the original order specified a per-child amount or the parties' incomes at the time the order was entered. Indeed, the Automatic Adjustment Statute simply states that "the base child support award is automatically reduced ... [as] shown in the table for the remaining number of children due child support, unless otherwise provided in the child support order." Utah Code Ann. § 78-45-7.10 (Supp. 2001). This unambiguous language plainly requires automatic reduction unless otherwise provided in the original order. Here, the original order does not provide otherwise.

¶ 12 Moreover, the 2000 amendment to the Automatic Adjustment Statute specifically provides a solution where the original order fails to specify the parties' incomes:

(3) The income used for purposes of

...