Siravo v. Siravo

• Decision Date: 16 January 1981
• Docket Number: No. 78-126-A,78-126-A
• Citation: 424 A.2d 1047
• Parties: Jean SIRAVO v. William SIRAVO. ppeal.
• Court: Rhode Island Supreme Court

Page 1047

424 A.2d 1047

Jean SIRAVO v. William SIRAVO.

No. 78-126-Appeal.

Supreme Court of Rhode Island.

January 16, 1981.

Feiner, Winsten & Landman, Richard D. Boriskin, Providence, for petitioner.

Taft, McSally & McKenna, James J. McKenna, Providence, for respondent.

OPINION

BEVILACQUA, Chief Justice.

The respondent William Siravo appeals from two decrees entered by a justice of the Family Court. ¹ The first decree was entered on April 10, 1978 and the second on April 17, 1978.

In the first decree, the Family Court justice found that respondent had failed to pay child support for his daughter Nancy, alimony to the petitioner Jean Siravo, and counsel fees for petitioner's representation in the original divorce proceeding. ² Additionally, the justice found that respondent was in contempt of an earlier decree ordering him to make these payments and, therefore, respondent would be required to pay counsel fees for the current litigation. ³ Finally, the April 10 decree denied respondent's petition to amend the original decree of divorce which outlined respondent's obligations with respect to alimony and support.

The respondent immediately requested a stay of the April 10 order and announced his intention to appeal to this court. The petitioner then moved for an allowance of counsel fees for herself and her daughter to defend against the anticipated appeal. In his second decree, the Family Court justice denied respondent's request for a stay, denied petitioner's motion for counsel fees for herself, but granted counsel fees for Nancy. Because of certain jurisdictional questions involved, a complete review of the facts and travel of this case is appropriate.

Nancy Siravo turned eighteen on August 24, 1977. The final decree of divorce ordered respondent to make payments "until said minor child shall have become emancipated." Believing that emancipation occurred at age eighteen, respondent discontinued making support payments. Two months later, respondent ceased payment of alimony to petitioner. Having stopped these payments, respondent filed a petition to amend the final decree of divorce on November 10, 1977. ⁴ The respondent followed this petition with a voluntary petition for bankruptcy filed in the United States Bankruptcy Court for the District of Rhode Island on February 3, 1978. ⁵ In the meantime, respondent's petition to amend and a motion to adjudge respondent in contempt, previously filed by petitioner, were consolidated and argued before a Family Court justice on February 6, 1978.

At the February 6 hearing, respondent testified he had no income as evidence by his petition for bankruptcy and argued that he was no longer under an obligation to support Nancy because she was now "emancipated." The petitioner attempted to dispute respondent's purported inability to pay and offered testimony in an attempt to demonstrate Nancy's continued dependency on petitioner and respondent for support. ⁶ It was the testimony given during this hearing, and during a second hearing held on March 13, 1978, that the Family Court justice used as a basis for the decrees of April 10 and 17 which gave rise to this appeal.

In reaching his decision, the Family Court justice made a number of determinations. The justice found that the parties intended support for Nancy to be terminated when she was emancipated in fact and not necessarily when she attained the age of majority. According to the justice below, emancipation did not occur automatically at eighteen. By examining the facts, the justice found that Nancy was not emancipated because she lived with petitioner, attended college, did not work, and could not support herself independently.

With respect to the petition for bankruptcy, the lower court ruled that such a petition did not have the effect of discharging respondent from child support, alimony, or counsel fee obligations. In this case, the justice held that the counsel fees were comparable to alimony because they affected the petitioner's maintenance. ⁷ Nor was respondent relieved of liability for arrearages in the opinion of the Family Court.

Subsequently, the Bankruptcy Court discharged respondent of all listed debts including alimony. ⁸ This had the effect of leaving respondent in contempt of court for nonpayment of moneys, some of which had been discharged by respondent's petition in bankruptcy.

I

The first issue before the court is whether, in light of respondent's filing of a petition in bankruptcy, the Family Court justice erred in not staying the contempt proceedings against respondent for his failure to pay his former wife's alimony and attorney fees, and his failure to make child support payments.

Under Rule 401(a) of the Federal Bankruptcy Code, a court may automatically stay, with certain limited exceptions, all actions on unsecured debts against a bankrupt. ⁹ One exception to the automatic stay rule is the alimony and child support provisions of Section 17(a)(7) of the Bankruptcy Act. ¹⁰ On July 18, 1977, the Bankruptcy Court for the District of Rhode Island held that the portion of section 17(a)(7) dealing with the dischargeability of alimony created an unconstitutional gender-based classification. In re Wasserman, 3 Bankr.Ct. Dec. 467 (D.R.I.1977). ¹¹ Basing its finding on this decision, the same court ruled two years later that respondent's alimony arrearage had been discharged.

By statute, Congress has vested the federal bankruptcy courts with exclusive jurisdiction in all matters pertaining to bankruptcy. ¹² Consequently, a finding that an exception to Rule 401(a) is unconstitutional by a federal bankruptcy judge should not be challenged in state court. This ruling becomes the law of the jurisdiction in which it is rendered unless it is either reversed by a higher federal court or the statute is subsequently revised. ¹³ In Rhode Island, at the time this action arose, alimony payments were improperly included as an exception to the automatic stay provisions of Rule 401. Therefore, when respondent filed his petition for bankruptcy on February 3, 1978, the Family Court should have recognized that an automatic stay was in effect as to the contempt proceedings that arose from the nonpayment of alimony. ¹⁴ Thus, we conclude that respondent should not have been found in contempt for failure to pay alimony arrearages including counsel fees. Moreover, because the alimony arrearage and petitioner's attorney fees were found to be dischargeable by the federal bankruptcy judge, we reject the decree of the Family Court justice to the extent it is inconsistent with the discharge order. It appears that petitioner's only recourse in this unique case would be an appeal within the federal court system.

II

Since the contempt proceedings for nonpayment of child support were not automatically stayed, we must now determine whether respondent, who was required to support his daughter until she became emancipated, properly ceased making support payments when she became eighteen years old, and whether respondent should be required to pay her counsel fees.

In the past we have stated that a father's responsibility for the support of his children terminates once they reach the age of majority absent some exceptional circumstances or express agreement between the parties to the contrary. Calcagno v. Calcagno, R.I., 391 A.2d 79, 82 (1978); Bouchard v. Bouchard, R.I., 382 A.2d 810, 813 (1978); Tuttle v. Tuttle, 86 R.I. 421, 423, 135 A.2d 841, 842 (1975). Most Family Court decrees are not self-terminating but remain valid and effective until amended or terminated by an order of the court. Calcagno v. Calcagno, supra; Bouchard v. Bouchard, supra; Ciallella v. Ciallella, 81 R.I. 320, 325, 103 A.2d 77, 79 (1954). However, as in the present case, some decrees are self-terminating upon the occurrence of a particular event. In this case, the emancipation of Nancy Siravo was such an event.

" 'Emancipation' * * * means the freeing of the child from the custody of the parent and from the obligation to render services to him." Vaupel v. Bellach, 261 Iowa 376, 379, 154 N.W.2d 149, 150 (1967). And emancipation has the effect of severing the legal rights and liabilities of the parents. Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967). Although a child may become emancipated prior to the attainment of majority, emancipation has been found to occur automatically when a child becomes an adult. Turner v. Turner, 441 S.W.2d 105, 108 (Ky.App.1969); but see id. 106, 108 (support obligation not terminated where language of agreement called for support payments until child self-supporting or emancipated). The only exception to this automatic emancipation rule occurs when infirmity of the body or mind renders the child unable to take care of itself. Fitzgerald v. Valdez, supra.

General Laws 1956 (1969 Reenactment) § 15-12-1 (1980 Supp.) lowered the age of majority from twenty-one to eighteen years of age. In reviewing the statute's effect on child support decrees, we determined recently that minority is a status with no fixed, vested or accrued rights in future support. Alternatively, we found that minority is a status created by law and subject to change by legislative enactment. Calcagno v. Calcagno, supra. A second consequence of § 15-12-1 was that it also lowered to eighteen the age at which a child is considered to be legally emancipated.

On August 24, 1977, Nancy Jean Siravo attained the age of eighteen and was therefore legally emancipated. The decree ordering child support until emancipation had been complied with and was then terminated. The respondent properly ceased making support payments; he was no longer legally responsible for the support of his newly emancipated daughter. We reach this conclusion notwithstanding the fact that Nancy attended college and lived at home on the weekends. Under the language of this particular support arrangement and in the absence of an agreement to the contrary, respondent was not...