Jungjohann v. Jungjohann

• Decision Date: 08 December 1973
• Docket Number: No. 46979,46979
• Citation: 516 P.2d 904,213 Kan. 329
• Parties: Mary B. JUNGJOHANN, Appellant, v. Kenneth R. JUNGJOHANN, Appellee.
• Court: Kansas Supreme Court

Page 904

516 P.2d 904

213 Kan. 329

Mary B. JUNGJOHANN, Appellant, v. Kenneth R. JUNGJOHANN, Appellee.

No. 46979.

Supreme Court of Kansas.

Dec. 8, 1973.

Syllabus by the Court

1. The condition of minority is a status rather than a fixed or vested right, there being no vested property rights in the personal privileges of minority.

2. Where, by a decree of divorce, a defendant is required to make child support payments until a child reaches the age of majority, the duty imposed by such decree is terminated by K.S.A. 1972 Supp. 38-101 on the effective date thereof where prior to its effective date the child had become eighteen years of age.

3. In this jurisdiction a child has no vested right in future child support.

4. K.S.A. 1972 Supp. 60-1610(a), pertaining to orders for the care of minor children in a decree of divorce, contemplates that provisions for the care of children are to be made only during their minority.

5. The provisions of K.S.A. 1972 Supp. 38-101 are examined and held not to operate retrospectively under the circumstances set forth in the opinion.

Ronald J. Wilkinson, of Alkire, Clausing, Coldsnow, Bush & Wilkinson, Wichita, argued the cause, and was on the brief for appellant.

Jack S. McInteer, of Weigand, Curfman, Brainerd, Harris & Kaufman, Wichita, argued the cause, and Orval J. Kaufman, Wichita, was with him on the brief for appellee.

KAUL, Justice.

This appeal is taken from an order of the trial court terminating the obligation of appellee, Kenneth R. Jungjohann, to pay child support for his daughter, Elizabeth Jungjohann. The trial court's order was based upon K.S.A. 1972 Supp. 38-101 which became effective July 1, 1972, and reads:

'The period of minority extends in males and females to the age of eighteen (18) years.'

The forerunner statute provided that the age of minority extended to the age of twenty-one with a proviso pertaining to 'legally married persons over eighteen years of age.'

The facts are not in dispute and the issue presented is purely a question of law.

The controversy arises from a decree on February 2, 1970, granting a divorce to appellant, Mary B. Jungjohann, and approving and incorporating a property settlement and alimony agreement previously entered into by the parties. With respect to custody of and support for Elizabeth, the trial court decreed as follows:

'That the plaintiff is a fit and proper person to have the care, custody and control of the minor child of the parties, to-wit:

'Elizabeth Dailey Jungjohann, born August 5, 1953, and that the defendant shall have all reasonable rights of visitation with said minor child; that the child support payments and other provisions concerning the minor child contained in the Property Settlement and Alimony Agreement shall be approved and adopted by the Court as its order herein and the defendant shall pay $100.00 per month child support through the Clerk of the District Court payable $50.00 on the first day and $50.00 on the 15th day of each month commencing February 1, 1970, and that all provisions concerning the said minor child and child support payments shall be subject to the continuing jurisdiction of this Court.'

The agreement, which was attached to the decree of divorce, provided that:

'. . . the Husband shall pay through the Clerk of the District Court to the Wife as and for child support the sum of $100.00 per month until said child attains the age of majority. Husband agrees to and shall maintain medical and hospitalization insurance coverage on said minor child during her minority. . . .'

Elizabeth became eighteen years of age on August 5, 1971; as noted the law became effective on July 1, 1972. Kenneth continued his child support payments until August of 1972 when he filed his motion to terminate his obligation. Apparently, a motion not shown in the record was filed by appellant (Mary) to enforce a provision of the agreement wherein the parties stated that they recognized 'their sole and joint duty to provide for the higher education of the said minor.'

On August 17, 1972, the matter was heard by the trial court. With respect to Kenneth's motion the trial court ruled:

'. . . that the child of the parties, Elizabeth Dailey Jungjohann, is of the age of 19 years and that the defendant's duty to support said child ceased as of July 1, 1972, by virtue of Chapter 161 of the 1972 Session Laws amending K.S.A. 38-101, fixing the age of majority at 18 years, the contract of the parties and the order of the Court herein providing that defendant should pay support for the said child 'until said child attains the age of majority."

With respect to expenses for Elizabeth's higher education the court found that Kenneth was to continue to contribute and in this regard futher ordered:

'IT IS FURTHER ORDERED that of the $150.00 child support the defendant has paid after July 1, 1972, $75.00 be applied toward the defendant's liability for the first semester, 1972-1973, of higher education expenses as set out in the order of the Court herewith and in reference to the procedure established in the order of August 16, 1971.'

The trial court also terminated the right of Kenneth under the original decree to list Elizabeth as a dependency exemption on his income tax returns. These rulings of the trial court were not challenged by Kenneth; but based upon Elizabeth's acceptance thereof, he has filed a motion to dismiss this appeal on the grounds that Elizabeth had acquiesced in the judgment below. Although the court's rulings are included in one journal entry it appears that the matters were presented in two separate motions; but only the ruling on one (Kenneth's) is appealed from. In any event, we choose to pass over this procedural point and resolve the matter on the merits since the question presented is one of first impression in this jurisdiction.

On appeal, appellant states her version of the point at issue in this fashion:

'The ruling of the Court terminating child support payments by the Appellee did not take into consideration the contract between the parties providing for the payment by Appellee of child support until the child attained the age of majority, and the statute fixing the age of majority which was in effect at the time the contract was made.'

Appellant advances several arguments which she claims support her position. She first asserts that our decision in Smith v. Smith, 104 Kan. 629, 180 P. 231, is sufficient authority to decide the issue here. Appellant's interpretation of the Smith decision, as we understand it, is that a statute cannot be enacted which alters the duration of a statuts previously fixed by law. Application of the rule, in its literal sense, as proposed by appellant would have precluded the enjoyment by eighteen year olds, of any of the rights conferred by the legislature on July 1, 1972, such as voting, contracting, termination of guardianship, etc. Judicial tampering with the age of majority could lead to widespread confusion in this regard. We do not read Smith as interpreted by appellant-the situation in Smith was converse to that appearing in the instant case. In Smith the act of the legislature extended the period of minority in women to age twenty-one instead of reducing it as in the instant case. The Smith case dealt with interpretation of a divorce decree in which the rents and profits of certain real estate in which a life estate was owned by the husband and father had been set aside for the support of the minor children until the youngest child should become of age. At the time of the decree (1902) the age of majority for women was eighteen years. In 1917 (Chapter 184, Section 1, Laws of 1917) the age of minority was extended to twenty-one years. In 1915 the youngest Smith child, a girl, became eighteen. The father brought suit against the mother and children to recover possession of the said estate. The critical issue in Smith was the interpretation of the original unclear divorce decree on the point whether the children were entitled to the rents and profits during the lifetime of the father, as they claimed, or merely to the age of majority of the youngest child. Most of the opinion is devoted to that point, which was resolved in the father's favor. The effect of the change in the law arose when the defendants (mother and children) asserted the action was prematurely brought because even though the youngest child, Nettie, became eighteen in 1915, she was still a minor by reason of the 1917 law extending minority to age twenty-one for women. The court held the new law did not change the 'status' of one who had already reached the age of majority under the former law. We discern a marked distinction in the effect of annulling the fixed rights of majority which the court refused to do in Smith and advancing the age at which those rights might be enjoyed which is the effect of K.S.A.1972 Supp. 38-101 in the instant case. We do not believe the decision in Smith controls the disposition of the issue here. We have also examined State ex rel. v. Lyons, 104 Kan. 702, 180 P. 802, in which it was held that the 1917 act extending the period of minority from eighteen to twenty-one years was not intended to change the 'status' of one who had already reached the age of majority under the former law. The condition of minority or majority is a 'status' rather than a fixed or vested right, there being no vested property rights in the personal privileges of infancy. Nor can it be said that minority is a fixed status. Under the law in effect at the time of the divorce in the instant case, a minor could acquire rights of majority by marriage (38-101), by a proceeding in district court (K.S.A. 38-108) or by legislative emancipation such as occurred.

The distinction between the privileges of minority and the rights to which a person is entitled on reaching his majority is expressed in these words in 42 Am.Jur.2d, Infants, § 1:

'. . . Majority is the age at which the...