Van Orman v. Van Orman, 70--444

• Decision Date: 02 November 1971
• Docket Number: No. 70--444,70--444
• Citation: 30 Colo.App. 177,492 P.2d 81
• Parties: Helen VAN ORMAN, Plaintiff-Appellee, v. William T. VAN ORMAN, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 81

492 P.2d 81

30 Colo.App. 177

Helen VAN ORMAN, Plaintiff-Appellee, v. William T. VAN ORMAN, Defendant-Appellant.

No. 70--444.

Colorado Court of Appeals, Div. II.

Nov. 2, 1971.

Rehearing Denied Nov. 23, 1971.

Certiorari Denied Jan. 24, 1972.

Sheldon, Bayer, McLean & Glasman, Raymond G. Carey, Jr., James T. Bayer, Denver, for plaintiff-appellee.

Victoria F. Gross, Denver, for defendant-appellant.

DUFFORD, Judge.

This appeal is brought by a divorced husband to challenge an ancillary order of the divorce court increasing his child support obligations. The order in question commanded the husband to pay the sum of $1,100 to his divorced wife or to his son Barry for the purpose of defraying Barry's college expenses, and to pay 'additional sums from time to time as required for the education of Barry Van Orman.'

At the time of the hearing from which the above order issued, it was established that the son, Barry, was approximately 20 years of age; that he had a history of part-time earning capacity; and that he was a National Merit Scholar who had enrolled in Johns Hopkins University for the purpose of beginning a course of study which he hoped to pursue to the ultimate end of obtaining a degree as a medical doctor.

The husband challenges the order which is under review on the grounds (1) that he has no duty to support a child who is capable of self-support; (2) that a child of age 18 or more is automatically emancipated by virtue of the effect of the Federal Voting Rights Act of 1970, which lowered the voting age to age 18; and (3) that the trial court abused its discretion by ordering him to pay Barry's college expenses.

Conversely, the wife asserts that the order of the trial court must be sustained because the child, Barry, was dependent and not emancipated. She further argues that a college education is a 'necessary' in the context of our present society, the cost of which may be properly assessed to a divorced father, and which he has an unqualified duty to pay.

I.

Primarily, we reject the husband's argument that he was without a duty to support Barry for the reason that Barry was an emancipated child who was no longer dependent upon his father for support. Under the provisions of C.R.S. 1963, 46--1--5(1)(a) and (c), our divorce courts are charged with the duty and vested with the right to enter orders providing for the care and support of children who are dependent upon their parent or parents for support. It is clear from the record before us that whether Barry was or was not dependent upon support contributions from his father was a contested issue of fact which was resolved against the father. The trial court's resolution of this question in that manner is well supported by the evidence produced at hearing and will not be disturbed by us upon appellate review. Pippinger v. Pippinger, 145 Colo. 140, 357 P.2d 911.

II.

We do not agree with the husband's contention that the enactment of the Voting Rights Act of 1970, 42 U.S.C. § 1973bb, lowering the federal voting age to 18 years, emancipated Barry, as a matter of law, and that, therefore, questions of Barry's dependency and emancipation were rendered moot in this case. In Colorado, by statutory definition, a person retains the status of minority until the age of 21 years. C.R.S. 1963, 135--1--2(14). We consider that statutory definition to be controlling as to the age at which emancipation occurs as a matter of law except where otherwise provided by statute. In the absence of emancipation occurring upon attainment of majority, the question of whether a child is emancipated is essentially one of fact determinable by the trier of fact. Union Pacific Railway Co. v Jones, 21 Colo. 340, 40 P. 891. Resolution of that question is concerned more with the extinguishment of parental rights and duties than with the removal of the disabilities of infancy. 39 Am.Jur. Parent and Child § 64. It occurs only when there is a complete severance of the filial tie, 39 Am.Jur. Parent and Child § 64; and we rule here that the child's possession or lack of possession of the right to vote has little or no bearing on the determination as to whether such tie has or has not been severed.

In view of these principles, we hold that it was proper for the trial court to hear and to determine the over-all question of Barry's emancipation and dependency. As we have stated, its determination of that question against the husband's position was supported by the evidence, and we will not disturb its ruling on appellate review. Pippinger v. Pippinger, supra.

III.

Lastly, we depart from both of the positions which the husband and wife urge with respect to the husband's obligations to pay for Barry's college expenses. Specifically, we do not agree with the wife's contention that, even in the absence of a statutory or contractual duty to do so, a divorced husband has an unqualified obligation and duty to pay for the college expenses of his minor child on the theory that such an education constitutes a necessity as measured within the context of our present society. Concededly, this may be the law in some jurisdictions, either as the result of statutory enactment or judicial decision. See, for example, Gerk v. Gerk, 259 Iowa 293, 144 N.W.2d 104; and Calogeras v. Calogeras, 163 N.E.2d 713 (Ohio Juv.Ct.). However, our legislature has not compelled such a result by statute, and our Supreme Court has not prescribed that this is the nature of the parent's duty within this jurisdiction. Additionally, we specifically reject the husband's contention that a divorced husband cannot under any...