Mack v. Mack, 751335

• Decision Date: 24 November 1976
• Docket Number: No. 751335,751335
• Parties: William H. MACK v. Enid Williams MACK. Record
• Court: Virginia Supreme Court

Page 895

229 S.E.2d 895

217 Va. 534

William H. MACK v. Enid Williams MACK.

Record No. 751335.

Supreme Court of Virginia.

Nov. 24, 1976.

Edward L. Breeden, III, Norfolk (Breeden, Howard & MacMillan, Norfolk, on brief), for appellant.

William A. Cox, III, Norfolk (Edwin C. Kellam, Kellam, Pickrell & Lawler, Norfolk, on brief), for appellee.

Before I'ANSON, C.J., and HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMTPON, Justice.

We again consider the effect of the 1972 statute lowering the age of majority on a court order for child support. See Meredith v. Meredith, 216 Va. 636, 222 S.E.2d 511 (1976); Eaton v. Eaton, 215 Va. 824, 213 S.E.2d 789 (1975); Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974).

The January 1961 final decree divorcing these parties from the bond of matrimony provided, Inter alia, that a June 15, 1960 written agreement between the parties:

'. . . is hereby confirmed and ratified in all respects and is expressly incorporated by reference into this decree and made a part hereof, the same as if written herein.'

The foregoing agreement in pertinent part provided:

'The party of the first part (appellant-father) agrees to pay to the party of the second part (appellee-mother) for the support, maintenance and education of the two minor children the sum of $300.00 per month and to pay to the party of the second part the sum of $100.00 per month for her maintenance and support. . . . It is hereby requested, provided and agreed that the provisions hereof in regard to the support of the children of the parties are subject to change in the event of a change of the circumstances of the parties.'

In May 1971, after the older child of the parties reached her majority of 21 years, the trial court interpreted and applied the agreement, and ordered that the sum of $225 per month be paid by the father to the mother for the support of the younger child, who was then fourteen years of age 'until the further order of (the) Court.' Subsequently, the age of majority was changed from 21 to 18 by enactment of the General Assembly effective July 1, 1972 (Acts 1972, cc. 824, 825). Code § 1--13.42.

Thereafter, the father filed a petition asking that effective February 16, 1975, the date the younger child became 18, the trial court relieve him of the duty to make further child support payments. Following a hearing, the court below on August 20, 1975 denied the father's request and ordered him to continue to make support payments for the benefit of the younger child until the child reached 21. The appeal which we granted the father from the foregoing order requires us to construe the June 15, 1960 contract to determine whether the parties intended the support payments in issue to continue until the child attained the age of 21 years.

This is not an Eaton case; it is more akin to Meredith, decided after the ruling appealed here, than Paul, and we reverse.

In Paul, relied upon by the mother, we held that the 1972 enactment lowering the age of majority did not operate to relieve the father from making the agreed support payments for two children who had attained age 18. There, the court-approved 1969 agreement provided for support payments to be made until the children became 21, were married, entered the armed forces, became employed full-time, or were 'otherwise emancipated.' 214 Va. at 652, 203 S.E.2d at 124. In Meredith, relied upon by the father, we relieved the father of his obligation of support when the child became 18; we concluded the parties did not intend to continue the father's duty of child support 'beyond the period within which, in the absence of an agreement, he would have been liable under Virginia law for such support.' 216 Va. at 638, 222 S.E.2d at 512. There, the 1970 contract which was incorporated into the final divorce decree required the father to support the child 'until such child shall reach his majority.' 216 Va. at 637, 222 S.E.2d at 511.

In contrast to Paul and Meredith, the Mack agreement provides for support of the 'minor children' of the parties. The father argues, and the mother agrees, the word 'minor' is used in this contract as an adjective modifying 'children' and that such use of 'minor' should not be interpreted as a 'contractual undertaking' on the father's part. The mother maintains, however, that when all the provisions of the agreement are considered along with the extrinsic evidence, it...