Martin v. Martin, KCD

• Decision Date: 02 August 1976
• Docket Number: No. KCD,KCD
• Citation: 539 S.W.2d 756
• Parties: Flossie E. MARTIN, Respondent, v. Wayne T. MARTIN, Appellant. 27256.
• Court: Missouri Court of Appeals

Page 756

539 S.W.2d 756

Flossie E. MARTIN, Respondent, v. Wayne T. MARTIN, Appellant.

No. KCD 27256.

Missouri Court of Appeals, Kansas City District.

Aug. 2, 1976.

Robert E. Gregg, Donald E. Raymond, Kansas City, for appellant.

W. Hugh McLaughlin, William J. Hill, Kansas City, for respondent.

Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.

ANDREW J. HIGGINS, Special Judge.

Appeal from decree of divorce and attendant award of child support. The question is whether the court exceeded its jurisdiction when it purported to award support for an adult child of the parties. Reversed in part and remanded.

Flossie E. and Wayne T. Martin were married September 15, 1951. To them were born four children: Daryl W., born March 16, 1952, Sharon P., born May 28, 1954, Sandra R., born June 7, 1955, and Marjorie E., born May 31, 1959.

The cause was tried November 15, 1973, on plaintiff's petition and defendant's amended cross-petition for divorce. On November 20, 1973, the court entered the decree, which provided: '* * * that the bonds of matrimony heretofore contracted between plaintiff and defendant be and the same are hereby dissolved * * * that the plaintiff have the care, custody and control of the dependent child, Daryl W. Martin, age 21, and the minor children, Sharon P. Martin, age 19, and Marjorie Martin, age 14, born of said marriage relation, * * * that defendant pay to plaintiff as support and maintenance of said children the sum of $56.00 per week, * * * that defendant pay to plaintiff as alimony the sum of $1.00 per month, * * * that defendant pay to plaintiff as attorney's fee the sum of $755.00 * * * and * * * recover * * * her costs * * *.'

Appellant does not question the decree with respect to the divorce, custody, alimony, and attorney's fees and costs awards. He contends (I) that the child support award is excessive for the reason that it is beyond the needs of plaintiff and beyond the ability of defendant to pay; and (II) that the court exceeded its jurisdiction in attempting to award custody of and support for one adult and one emancipated child of the parties.

There is no question that Daryl W. Martin was over 21 years of age at the time the decree of divorce was entered; and the decree shows on its face that he is one of 'said children' for whom plaintiff was awarded $56.00 per week as and for child support and maintenance.

Section 452.070, RSMo 1969, provides the authority for a court to enter orders touching maintenance of children when a divorce is adjudged. It 'make(s) no provision for the maintenance of adult incapacitated children and the courts cannot write such a provision in the statute.' State v. Carroll, 309 S.W.2d 654, 662(15) (Mo.App.1958). The power of a divorce court to make orders touching maintenance of children cases with the minority of the children. Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762 (banc 1932). 'Largely in reliance upon the commonly expressed rule that when a child of the parties to a divorce or separation action attains his majority, authority of the court over such child comes to an end, it has been held or recognized, except in a few scattered cases, that a court in a divorce or separation suit is without power to provide for the support of, or aid to, and adult child of the parties * * *.' 162 ALR 1085. 'This, of course, does not include the question of a parent's commonlaw liability for necessities furnished a dependent adult child or the power of a court to require a parent to support his adult child, otherwise than by virtue...