Redman v. Redman, 4292

• Decision Date: 25 April 1974
• Docket Number: No. 4292,4292
• Citation: 521 P.2d 584
• Parties: Tommy J. REDMAN, Appellant (Defendant below), v. Marjorie Joanne REDMAN, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 584

521 P.2d 584

Tommy J. REDMAN, Appellant (Defendant below), v. Marjorie Joanne REDMAN, Appellee (Plaintiff below).

No. 4292.

Supreme Court of Wyoming.

April 25, 1974.

Joe R. Wilmetti, Rock Springs, for appellant.

H. S. Harnsberger, Jr. Riverton, for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and McCLINTOCK, JJ.

Mr. Justice McCLINTOCK delivered the opinion of the Court.

Tommy J. Redman ¹ appeals from the judgment of the District Court of Fremont County, Wyoming, made and entered July 20, 1973, finding him in willful violation of a previous judgment of that court entered February 25, 1970, and ordering him to pay plaintiff $2,025.00 in unpaid child support and $600.00 as attorney fees.

The judgment of February 25, 1970 was entered as the result of an alleged failure of defendant to comply with an original divorce decree entered August 31, 1967, which in addition to granting plaintiff a divorce awarded custody and directed defendant to pay $300.00 per month beginning September 1, 1967 'for the support of the minor children of the parties', four in number, and all of whom were under the age of 18 at that time. No period of time or other limitations were fixed in the order for child support.

It appears that following the entry of the decree defendant became delinquent in his payments and may have made some payments to the children themselves rather than to the plaintiff. Also, on September 16, 1969, Vicki, the oldest of the four children, became 18 years of age. On October 24 of that year, claiming that defendant was in substantial arrears in his payments, plaintiff filed an affidavit asking for a citation of contempt against him. Pursuant to citation a hearing was held February 2, 1970, resulting in the judgment of February 25, 1970 which contained the following specific finding:

'1. That the child support payment obligation of Defendant to Vickie J. Redman, ceased as of her 18th birthday which was September 16, 1969.'

Judgment was entered against defendant for $1,865.27 in adjudication of all obligations through January 31, 1970, and defendant was ordered to 'continue child support payments for the three remaining minor children in the custody of the Plaintiff, said payments being in the sum of $225.00 per month', to be made through the Clerk of the Court and not directly to the children. Neither party appealed this judgment and the money judgment was promptly paid.

Beginning with the July, 1971 payment defendant reduced the payment by $75.00, to $150.00 without previous application for this reduction or order of the court therefor. Debbi, the second oldest child, became 18 on August 13, 1971. No payment at all was made for the month of March, 1972. A year after this reduction and on July 2, 1972 plaintiff again filed motion for citation for contempt because of defendant's alleged 'failure to abide by the previous order of the Court, dated February 25, 1970'. By order issued July 28, served August 15, defendant was required to appear on August 30 and show cause why he should not be held in contempt for 'alleged violations of the order of this Court dated February 25, 1970, with respect to his obligation to pay child support to the plaintiff'. In his written answer filed August 23 defendant referred to the provisions of the original decree and subsequent judgment of February 25, 1970, and further alleged:

'8. That by virtue of said judgment of this Court, dated the 25th day of February, 1970, the initial Decree of this Court has, be implication been interpreted to mean that the child support payments were payments of Seventy-five and 00/100ths Dollars ($75.00) per month, per child for, during and until each of said minor children attained the age of 18 years.'

After some postponements of the hearing counsel for the parties on January 5, 1973 entered into a stipulation agreeing that defendant had reduced payments for July, 1971 and the following months to $150.00; that he had not made a payment for March of 1972; that Debbi had reached her 18th birthday on August 13, 1971; that the judgment of February 25, 1970 contained finding No. 1 as above quoted; and that defendant, understanding that his child support obligation for his children ceased as they became 18 years of age, had reduced the monthly payment by $75.00 when Debbi became 18. It was further stipulated:

'5. That the only question to be determined by this Court, at the hearing herein set for the 7th day of February, 1973, is, 'Does the defendant's child support obligation cease when his children attain the age of 18 years?"'

Briefs were filed with the trial court and a hearing was held on July 6, 1973 at which plaintiff was the only witness, testifying to the facts as we have stated them. The trial judge then discussed the case at some length, rejecting any theory of automatic cessation of obligation to pay child support at age 18 since there was no factual or legal basis to presume a ratable reduction was in order. He found that the defendant had failed to pay support according to the explicit terms of the decree of august 31, 1967 and the modification of February 25, 1970, which failure was willful and contemptuous. Defendant would therefore be ordered to pay $2,025.00 (the amount of the $75.00 reduction over a 25 month period plus $150.00 for March, 1972), and the payment of $225.00 a month would continue indefinitely because there was no record or facts before the court to undertake an adjustment of that amount. Judgment was entered July 20, 1973 in the amount of the deficiencies but further providing that defendant 'shall continue child support payments for the two remaining minor children in the custody of the plaintiff in the sum of $150.00 per month', ² payable through the Clerk's office.

Defendant does not deny that at the time of the original decree herein legal minority continued until a child was 21. Nor does he deny the right of a district court in providing for the custody and support of children of the marriage to enter a decree which would require such support during that minority, subject to such future modification thereof as might be secured by proper application to the court. ³ In the present case, however, the 1967 judgment fixed no time limit during which it should be in effect and while the support obligation is created for the benefit of the 'minor children' of the parties, there is no express direction that it was to continue throughout minority. In this respect the case differs from the authorities cited by plaintiff holding that if a decree 'requires payments for the support of a daughter 'during minority' the obligation continues until she is 21'. ⁴

Defendant cites statutes pertaining to the enforcement of civil and criminal sanctions against a parent who fails to give proper support to his children, which statutes are expressly limited to children under 18. ⁵ However, we do not understand him to dispute the right of a district court to grant a divorce, to provide for the custody and support of children of the marriage, ⁶ and to impose the obligation of support until the children shall have reached the age of majority or some other designated age beyond 18. His argument is that while the original decree was silent as to both the duration and severability of the support obligation, the judgment of February 25, 1970 has by interpretation or construction of the original decree rendered certain that which was uncertain so that from and after February 25, 1970 the obligation of the defendant was to pay plaintiff each month for the benefit of the each child then under the age of 18 years the sum of $75.00, with such obligation automatically terminating as to each child as that child reached 18.

Cited as authority sustaining the severability of the support award are Ditmar v. Ditmar (1956), 48 Wash.2d 373, 293 P.2d 759, and Codorniz v. Codorniz (1950), 34 Cal.2d 811, 215 P.2d 32, holding that as children married or circumstances changed concerning their dependency the father was justified in reducing the support payment without previous order of court, but we are not convinced that they represent either the majority or better view. Severability was specifically considered and rejected in Cooper v. Matheny (1969), 220 Or. 390, 349 P.2d 812; ...