Mason v. Mason

• Decision Date: 16 March 1973
• Docket Number: No. 9495,9495
• Citation: 507 P.2d 781,1973 NMSC 31,84 N.M. 720
• Parties: Ruric D. MASON, Plaintiff-Appellee, v. Barbara E. MASON, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 781

507 P.2d 781

84 N.M. 720

Ruric D. MASON, Plaintiff-Appellee, v. Barbara E. MASON, Defendant-Appellant.

No. 9495.

Supreme Court of New Mexico.

March 16, 1973.

Sommer, Lawler & Scheuer, Santa Fe, for appellant

Hunter L. Geer, Albuquerque, for appellee.

OPINION

OMAN, Justice.

The parties hereto were formerly husband and wife. They have four children. The husband, as plaintiff, was granted a divorce from the wife, as defendant, by final judgment and decree entered July 17, 1970.

A written stipulation between the parties filed in the divorce proceedings, approved by the trial court, and made a part of the final judgment and decree, provided in material part:

'7. Defendant shall be awarded custody of the four minor children of the parties, namely, Robin V. Mason, born on December 9, 1951; O'Brien Mason, born on February 14, 1953; Kathleen Mason, born on December 25, 1954 and Shelley Mason, born on June 15, 1957, with the right upon the part of plaintiff to visit with said children at all reasonable times and places and to have said children with him for reasonable periods of time.

'8. As support for the minor children of the parties plaintiff will pay to defendant the sum of $115.00 per month per child during the respective minority of said children or until they earlier become married or otherwise emancipated, said payments to be made semi-monthly on or before the 5th and 20th days of each month during the time required to effectuate the payments herein provided. It is further agreed that payments in behalf of any child shall be waived for the period such child is regularly enrolled in and attending college and living away from the residence of defendant provided plaintiff is paying or has obliged himself to pay essentially all of the costs of room, board, tuition and books for such child. Status of such child on date support payments are due shall determine whether such payment shall be waived.

'9. The parties represent and agree that each of the four children is owner of insurance policies in the amount of $2,000 on his or her respective life, that plaintiff will continue to pay premiums due on such policies until they are paid up and shall be entitled to be named as sole beneficiary on each of such policies, and that during the respective minorities of the children such policies may not be cashed, collateralized or borrowed against without the express written consent of both parties.

'10. The plaintiff will provide any and all medical, surgical and hospitalization expenses and costs incurred through the treatment of the four aforesaid children until said children attain their lawful majorities, earlier marry or otherwise become emancipated, with the exception that the defendant will pay the first $50.00 incurred and not covered by hospitalization insurance through any such care or treatment for any one illness for any one child.

'11. Until such time as each living child of the parties attains his or her lawful majority, earlier marries or otherwise becomes emancipated, the plaintiff will maintain life insurance in a minimum amount of $7,500.00 for each such minor child, with the minor children of the parties, or the survivor or survivors of them, being named as beneficiaries, in equal shares thereof. From and after the attaining of the age of twenty-one (21) years of each of said children or its earlier marriage or earlier emancipation, the plaintiff shall be free to delete said child as the beneficiary on such insurance or otherwise deal with such insurance as to him shall appear proper.'

Plaintiff complied with the decree, and particularly with the provisions of paragraph 8 of the stipulation, through July 31, 1971. During the month of August 1971 the four children resided with defendant, but plaintiff failed to make payments to her on behalf of Robin and O'Brien, the two older children, on the ground that these two children, who were then 20 and 18 years of age respectively, had attained their majority and were thereupon emancipated by the provisions of Laws of 1971, ch. 213 § 1, which became effective June 18, 1971, and now appears as § 13--13--1, N.M.S.A. 1953 (Repl. Vol. 3, Supp.1971), and provides:

'13--13--1. Age of majority--Eighteen years--Exception.--A. Except as provided in subsections B and C, notwithstanding any other law to the contrary:

'(1) any person who has reached his eighteenth birthday shall be considered to have reached his majority and is an adult for all purposes the same as if he had reached his twenty-first birthday;

'(2) any law conferring any right or privilege, or imposing any duty or obligation, upon any person who has reached his twenty-first birthday shall apply to any person who has reached his eighteenth birthday;

'(3) any law which denies any right or privilege to persons who have not reached their twenty-first birthday shall apply only to persons who have not reached their eighteenth birthday; and

'(4) any law, except the Liquor Control Act (46--1--1 to 46--11--4), which differentiates between treatment to be accorded persons who have reached their twenty-first birthday and those who have not, shall differentiate between treatment to be accorded persons who have reached their eighteenth birthday and those who have not.

'B. It is the intent of the legislature that this general law shall control over any conflicting prior special law except that it shall not apply to or change any age requirements for exercising the elective franchise.

'C. Provided, however, that for the purposes of the Uniform Gifts to Minors Act (48--20--1 to 48--20--10), as it relates to any gift made prior to the effective date of this act, the donee shall not be entitled to delivery or payment over of the gift until he has reached his twenty-first birthday.'

Plaintiff's position was and is that these two older children had become emancipated, and, therefore, he was no longer obligated under the law or under the stipulation and decree to support them. Subsequent to August 1971 he did in fact assume payment of tuition, room and board for O'Brien who entered college, but urges he did so pursuant to an arrangement between him and O'Brien and not by reason of any obligation to do so under the stipulation and decree.

Defendant sought a court order compelling plaintiff to pay her the support monies for Robin and O'Brien for the month of August 1971, and for Robin thereafter in accordance with the provisions of paragraph 8 of the stipulation above quoted. The trial court entered an order denying defendant relief on the...