Wood v. Wood

• Decision Date: 25 October 1979
• Citation: 407 A.2d 282
• Parties: George F. WOOD v. Frances M. WOOD.
• Court: Maine Supreme Court

Page 282

407 A.2d 282

George F. WOOD v. Frances M. WOOD.

Supreme Judicial Court of Maine.

Oct. 25, 1979.

Richard E. Valentino (orally), Saco, for plaintiff.

Ranger & Copeland by Orville T. Ranger (orally), Paul R. Copeland, III, Brunswick, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, GODFREY, NICHOLS and GLASSMAN, JJ.

GLASSMAN, Justice.

The appellant George Wood appeals from the judgment of the Superior Court, York County, entered on December 8, 1978, which reversed an order of the District Court, Tenth District, Division of Southern York, dated October 25, 1977, fixing arrearages in child support and granting a reduction in support payments under a divorce judgment. The appellant contends that the rule of law applied by the Superior Court that the father is primarily liable to support his minor children violates the Equal Protection Clause of the Fourteenth Amendment and that the District Court acted properly in altering the support decree retroactively. ¹

On October 17, 1975, the appellee Frances Wood was granted a divorce from the appellant George Wood. The divorce judgment incorporated by reference a property settlement agreement which provided, Inter alia, that the appellant would pay the appellee the sum of $75.00 per week for the support of each of the two minor children in the custody of the appellee. The judgment specifically mentioned this provision and decreed that the support obligation would continue "until further Order of Court." In September of 1976, the appellee secured employment as a public school teacher. That same month the appellant unilaterally ceased making support payments, resuming payments in October at a reduced rate of $50.00 per child per week. In a document dated October 18, 1976 and filed in the District Court on November 17, 1976, the appellee brought a motion for contempt, seeking arrearages and counsel fees. In his answer and cross-motion, dated November 16, 1976 and filed on November 29, 1976, the appellant sought modification of the support payments to $50.00 weekly for each of the two children.

On October 25, 1977, the District Court, after hearing, found that the child support provision was based upon the financial status of the parties as of the date of the divorce judgment and that the relative financial circumstances had subsequently changed because the appellee was now employed as a teacher, whereas at the time of the divorce she had no income. The court concluded that this increase in the financial resources of the appellee warranted a reduction in the support obligation of the appellant. Accordingly, the District Court reduced the support payments to $50.00 per child per week, to commence on November 16, 1976, the date appearing upon the appellant's cross-motion for modification. In determining the arrearages for which execution would issue, the court only considered unpaid installments prior to that date, fixing support arrearages at $400.00.

On appeal the Superior Court reversed the order on modification and arrearage. The court noted that the District Court order was premised not on a diminished ability by the appellant to provide a reasonable level of support but rather solely on the improved financial status of the appellee. This ground for modification, the Superior Court determined, was inconsistent with the traditional principle stated in Pendexter v. Pendexter, Me., 363 A.2d 743 (1976), placing the primary support obligation on the father and considering the financial status of the mother relevant only when the father is unable to provide a reasonable level of support on his own.

It is clear to us that the Superior Court misconstrued the Pendexter holding. ² As we recently emphasized in Gardner v. Perry, Me., 405 A.2d 721, 725 (1979), the opinion of this Court in Pendexter rejected the traditional rule imposing primary child support liability on the father as an outmoded distinction predicated on an archaic stereotype in which the mother played a dependent role in the allocation of family responsibilities. Pendexter v. Pendexter, supra, 363 A.2d at 748. Rather, the Pendexter Court held that

the primary purpose of child support is the best interest and welfare of the child. Support, as every other duty arising from the relationship of parent and child, is the equal responsibility of both mother and father, to be discharged in accordance with their respective capacity and ability. Id. at 749.

Because the Superior Court applied an erroneous principle of law, we need not consider whether the principle it applied is an unconstitutional gender-based classification. In fashioning its modification order, the District Court properly considered the relative financial circumstances of both parents. We cannot say that the court abused its discretion in ordering a reduction in child support payments. See Gardner v. Perry, supra, 405 A.2d at 725; Strater v. Strater, 159 Me. 508, 519-20, 196 A.2d 94, 99-100 (1963).

Although properly reducing the support obligation of the appellant as to future payments, the District Court decreed that the order become effective as of November 16, 1976, rather than on the date of its entry, October 25, 1977. This action raises the issue whether the court had authority to reduce the support payments retroactively.

Jurisdictions differ on the question whether a divorce court has the power to order retroactive alteration of a child support order. See generally, H. Clark, Domestic Relations § 15.2 (1968); 24 Am.Jur.2d Divorce and Separation § 853 (1966); 27B C.J.S. Divorce § 322(1)(c) (1959); Annot., 6 A.L.R.2d 1277 (1949). Many jurisdictions hold that courts lack authority to reduce or cancel accrued child support payments on the ground that accrued installments become final judgments which cannot be modified, E. g., Engleman v. Engleman, 145 Colo. 299, 302, 358 P.2d 864, 866 (1961); McPherson v. McPherson, 153 Ohio St. 82, 91, 90 N.E.2d 675, 680 (1950); Tente v. Tente, 112 R.I. 636, 639, 314 A.2d 149, 151 (1974), or that support payments become vested as they accrue, E. g., Needler v. Needler, 131 Ill.App.2d 11, 22, 268 N.E.2d 517, 526 (1971); McCrady v. Mahon, 117 N.H. 762, 763, 378 A.2d 1143, 1144 (1977) (per curiam), or that statutes authorizing the modification of support orders cannot be construed as allowing the cancellation of arrearages. E. g., Kell v. Kell, 179 Iowa 647, 651, 161 N.W. 634, 636 (1917); Davis v. Davis, 145 Kan. 282, 286, 65 P.2d 562, 565 (1937); Pishue v. Pishue, 32 Wash.2d 750, 753, 203 P.2d 1070, 1072 (1949); Cf. Delbridge v. Sears, 179 Iowa 526, 529-534, 160 N.W. 218, 220-21 (1916) (no power to cancel accrued alimony). Primarily as a matter of statutory construction, some courts hold that the power of modification granted divorce courts extends not only to future child support installments but also to arrearages. E. g., Sawyer v. Kuhnle, 324 Mass. 53, 56, 84 N.E.2d 546, 548 (1949); Wellman v. Wellman, 305 Mich. 365, 371, 9 N.W.2d 579, 581 (1943); Slep v. Slep, 43 N.J.Super. 538, 541, 129 A.2d 317, 319 (1957); Cf. Watts v. Watts, 314 Mass. 129, 133-34, 49 N.E.2d 609, 611-12 (1943) (cancellation of alimony arrearages). By statute, legislatures in other jurisdictions have specifically granted, E. g., N.Y.Dom.Rel. Law § 240 (Consol.1979), or denied, E. g., Cal.Civ.Code § 4700 (West Supp.1979), courts the power to cancel child support arrearages.

Even in jurisdictions that forbid the retroactive modification of arrearages, courts altering child support decrees generally are empowered to cancel arrearages which accrued after the filing of the motion for modification and before entry of the order. E. g., Scott v. Scott, 265 Ala. 208, 211, 90 So.2d 813, 815 (1956) (per curiam); Rhodes v. Gilpin, 264 A.2d 497, 500 (D.C.App.1970); In re Marriage of Matzen, 69 Ill.App.3d 69, 73, 25 Ill.Dec. 557, 560, 387 N.E.2d 14, 17 (1979); Cal.Civ.Code § 4700 (West Supp.1979). In the instant case, the District Court apparently intended to reduce the child support obligation of the appellant as of the date of his cross-motion for modification. Although dated November 16, 1976, according to the record the motion was not filed until November 29, 1976, during which time two additional support installments accrued. Because the effective date of the order preceded the date of filing, the cancellation of the additional $100.00 of arrearage cannot be justified by reference to cases allowing post-filing cancellation under proper circumstances. Therefore, we must determine the law of Maine on the issue of retroactive modification of child support decrees.

This Court has repeatedly stated that jurisdiction over divorce and incidental relief is purely statutory. ³ The authority of the divorce court over matters of alimony, counsel fees and the custody and support of minor children "must be found in the statutes or it does not exist." Baril v. Baril, Me., 354 A.2d 392, 395 (1976); Dolan v. Dolan, Me., 259 A.2d 32, 35-36 (1969); Belanger v. Belanger, Me., 240 A.2d 743, 745 (1968); Strater v. Strater, 159 Me. 508, 510, 196 A.2d 94, 95 (1963); Dumais v. Dumais, 152 Me. 24, 26-27, 122 A.2d 322, 324 (1956); White v. Shalit, 136 Me. 65, 66-67, 1 A.2d 765, 766 (1938); McIntire v. McIntire, 130 Me. 326, 335, 155 A. 731, 735 (1931); Stewart v. Stewart, 78 Me. 548, 551, 7 A. 473, 474 (1887); Stratton v. Stratton, 73 Me. 481, 483 (1882); Henderson v. Henderson, 64 Me. 419, 421 (1875). See generally, Opinion of the Justices, 16 Me. 479 (1840). Although courts construing the divorce statutes properly display a special solicitude toward the minor children of divorced parents in fashioning decrees in the best interests of the children, the source of the courts' power is the statute governing divorce and not the general grant of equitable jurisdiction. See Baril v. Baril, supra, 354 A.2d at 395; Dumais v. Dumais, supra, 152 Me. at 27, 122 A.2d at 324. That such decrees terminate the common law parental support obligation,...