Ellis v. Ellis

CAMPBELL, J.,

dissenting.

I agree that a support order in a decree is only effective during the period of time that the child is a minor. However, I disagree that emancipation automatically *509changes the status of a child from a minor to an adult. I agree with the trial court that under ORS 107.135(2) it had no power to set aside the child support payments which had accrued as a final judgment prior to the time that the father filed his motion to modify the decree. I would therefore affirm the trial court.

The majority in effect says the decree only requires payment for the support of minor children and there was no obligation by the father to pay the mother child support for the oldest child after November, 1978, because the trial court found the child to be emancipated and therefore no longer a minor.1

“The significance of the word “emancipation” is not exact. It is used sometimes to signify a mere gift by parent to child of the latter’s earnings, and sometimes to signify the complete severance, so far as legal rights and liabilities extend, of the parental relationship. Thus, emancipation may be either complete or partial, conditional or absolute. The minor may be emancipated for some purposes, but not for others, and the parent may be freed of some of his obligations and divested of some of his rights, yet not freed and divested of others. The child may be emancipated for the balance of his minority or for a shorter period.” 59 Am Jur 2d Parent and Child § 93 at 191 (1971).

Also to be considered is the rule that emancipation does not remove the disabilities of infancy or operate to make the child sui juris. 59 Am Jur 2d Parent and Child § 93 at 193 (1971).

I have been unable to find an Oregon case that defines “emancipation,” but the language of ORS 109.550 to 109.656, passed by the 1977 legislature supports the proposition that emancipation does not automatically change the status of a minor child to an adult.

ORS 109.550 reads:

“As used in ORS 109.550 to 109.565:
*510“(2) ‘Emancipation’ means conferral of certain rights of majority upon a minor, as enumerated in ORS 109.555.
“(3) ‘Minor’ means a person under the age of 18 years.”
ORS 109.555(2) provides:
“A decree of emancipation shall not affect any age qualification for purchasing alcoholic liquor, the requirements for obtaining a marriage license, nor the minor’s status under ORS 109.510.” (Emphasis added).
ORS 109.510 provides:
“Except as provided in ORS 109.520 [majority of married persons], in this state any person shall be deemed to have arrived at majority at the age of 18 years, and thereafter shall have control of his own actions and business, have all the rights and be subject to all the liabilities of a citizen of full age.”

I do not contend that ORS 109.550 to ORS 109.565 controls this case. It is a statutory scheme wherein a juvenile court on written application of a minor may grant a decree of emancipation after notice to the parents. I claim only that the statutory language shows that a child who is emancipated does not lose its status as a minor and is therefore consistent with the general law on the subject.

It seems clear in Oregon that when a court in a dissolution case declares a minor child to be emancipated because the child is self-supporting the child does not lose its status as a minor. Such a child would not acquire the right to vote. Or Const Art II, sec 2. It would still be a minor for the determination of conditions of employment. ORS 653.010. The consent of a parent or guardian would be required to obtain a marriage license. ORS 106.060. A person under 21 years of age can not purchase intoxicating liquor. ORS 471.105. A person under eighteen years of age is subject to the jurisdiction of the juvenile court and can only be tried in an adult court after a remand hearing. ORS 419.476, 419.533. All of these provisions of the law are based on age and not “emancipation.” The best that can be said is that such a child is “emancipated” from receiving “support payments.”

In the 1967 divorce decree the father was ordered to pay to the mother a specific sum per month “for the support and maintenance of said children until each child *511shall be twenty-one (21) years of age, self-supporting, or otherwise emancipated from the home.”

In March, 1980, the father in a pleading entitled “MOTION FOR ORDER MODIFYING DECREE” moved the trial court for an order requiring the mother to appear and show cause why “the decree on file herein should not be modified in the following respects: * * * granting (father) credit for any unpaid child support obligations with respect to the minor child of the parties, Lissa Ellis, from the date of her emancipation * * *.”

The trial court found that the oldest daughter, Lissa, was emancipated and modified the decree by terminating the provision for her support as of March 31, 1980. The trial court held that under ORS 107.135(2) it did not have the power to give the father credit for support payments which were due prior to the filing of the motion to modify. In the words of the trial judge: “So any amounts that would be due, having gone to judgment, remain as a judgment.”

ORS 107.135(2), relating to the enforcement of support decrees, provides:

“The decree is a final judgment as to any instalment or payment of money which has accrued up to the time either party makes a motion to set aside, alter, or modify the decree, and the court does not have the power to set aside, alter or modify such decree, or any portion thereof, which provides for any payment of money, either for minor children or the support of a party, which has accrued prior to the filing of such motion.”

The majority skates around the above statute by saying:

“ORS 107.135(2) is not applicable because this case does not involve setting aside, alteration or modification of a decree. Despite the wording of the father’s motion, it sought only for the court to declare the extent of the father’s obligation under the decree as issued, not to modify the decree or the obligation.
“* * * Because the trial court found that the child was ‘otherwise emancipated’ as of November of 1978, then, under the express terms of the initial decree, the father’s support obligation for the child terminated at that time and any support instalments on her behalf ceased accruing.”

*512Calling a horse a cow does not make it a cow. Likewise, by calling a motion for modification a motion for declaratory relief does not make it so.

One of my disagreements with the majority over the application of ORS 107.135(2) centers on the meaning of the word “accrued.” The majority claims that once the child in this case was in fact emancipated, the child support payments ceased accruing. The term “accrued” is used twice in the statute. Any installment or payment of money which has “accrued” prior to the motion to modify is a final judgment and the court does not have the power to modify the decree as to any support payment which has “accrued” prior to filing the motion.

The dictionary definition of “accrued” is: “due and payable,” “vested,” and “matured.” Black’s Law Dictionary 37 (4th Edition 1951).

The statute which became ORS 107.135(2) was enacted by the Oregon legislature in 1921. Prior to that time this court had held that an order to pay support was merely personal and created only an obligation in the nature of a debt and in the absence of an express order was not a lien upon the land of the obligor. Mansfield v. Hill, 56 Or 400, 107 P 471, 108 P 1007 (1910).

In the case of Forbes v. Jennings, 124 Or 497, 503, 264 P 856 (1928) Justice McBride explains why what is now ORS 107.135(2) was enacted:

“In that case [Mansfield v. Hill, supra], * * * the decree was never docketed in the lien docket, and therefore could not have been a specific lien in any event. This court was of the opinion that it was so indefinite as to duration and amount that no lien attached by virtue of the decree, and it is evident that the amendment of 1921 was enacted with the view of providing that such allowances in divorce cases should be raised from the grade of mere personal orders to the dignity of judgments. We find no reason, since the passage of such amendment, to distinguish them, as to their consequences, from other judgments involving the recovery of money. The language of the statute is explicit * * * 99

The law as to judgments was the same then as it is now. The judgment is docketed with the clerk, ORS 18.320, *513and is a lien upon any real property owned by the judgment debtor. ORS 18.350.

The case of Forbes v. Jennings, supra, at page 504, explains further:

“So we have here a final judgment that plaintiffs grantor pay the sum of $30 per month to his divorced wife for the maintenance of their minor daughter from the date of the decree until she is twenty-one years old. After docketing such judgment, there is no uncertainty whatever as to the amount due or to become due. All the clerk has to do is to deduct the payments, if any, * * * and compute the number of months in which payments due have accrued, and thereafter issue an execution for such balance.” (Emphasis added).

It would seem clear that once the payment date for an installment of support money has passed and the amount has been docketed as a final judgment upon which execution could issue then the installment “is due and payable” and has “vested,” “matured,” and “accrued” within the meaning of ORS 107.135(2).

This type of case is controlled by our previous ruling in Poe v. Poe, 246 Or 458, 459, 425 P2d 767 (1967) wherein we referred to ORS 107.135(2):

“This court has repeatedly held, since the finality of the installment judgment was added to the statute in 1921 * * * that the court is without power to modify or change support payments once they become a judgment.”

A judgment entered by a court that has jurisdiction of the parties and the subject matter is a final judgment. Lytle v. Payette-Oregon Irr. Dist., 175 Or 276, 152 P2d 934 (1944). If the mother in this case had elected to have an execution issued on the unpaid installments of child support that had been docketed as a judgment, how could the father defend?

In 1971 the Oregon legislature enacted ORS 107.415, which provides:

“(1) If a party is required by a decree of a court in a domestic relations suit, as defined in ORS 107.510, to contribute to the support, nurture or education of a minor child while the other party has custody thereof, the custodial parent shall notify the party contributing such *514money when the minor child receives income from his own gainful employment, or is married or enters the military service.
“(2) Any custodial parent who does not provide notice, as required by subsection (1) of this section may be required by the court to make restitution to the contributing party of any money paid, as required by the decree. The court may enter a judgment or satisfy all or part of any accrued judgment to accomplish the restitution.” (Emphasis added).

I agree with Judge Warren’s dissent in Eagen and Eagen, 52 Or App 299, 628 P2d 428 (1981), modified on other grounds 292 Or 492, 640 P2d 1019 (1982) that the apparent purpose of the above statute was to reinstate the power of the trial court to modify accrued support judgments in specific circumstances.

I also agree with the Court of Appeals in Sullivan v. Sullivan, 21 Or App 382, 384, 534 P2d 1178 (1975), wherein it said that the obvious reason for ORS 107.415 is to give the contributing parent an opportunity to move for a reduction of child support if that parent so desires.

The 1971 legislature by enacting ORS 107.415, giving the trial courts the power to modify accrued child support judgments in certain specific circumstances, reaffirmed that the courts do not have the authority to modify those judgments under any other circumstances.

In this case the mother gave the father notice in 1978 that the oldest daughter Lissa was self-supporting. This notice complied with ORS 107.415. The father elected not to file a motion to modify the decree based on a change of circumstances under ORS 107.135(1) until March, 1980, when he asked that the divorce decree be modified to give him credit for the unpaid child support payments for November, 1978 through March, 1980. Those accrued payments have been docketed as final judgments and cannot be deleted or modified. ORS 107.135(2).

To support its theory in this case the majority has to be claiming that the judgment is conditional and self-executing. That is, the judgment is conditioned upon the fact that the child needs support and that when the child is emancipated the support payments automatically terminate. I disagree with the proposition that the judgment is *515self-executing. These are questions of fact which should be decided by the court. The mother provided the father with the notice required under ORS 107.415. Then the father should have the burden of going forward by way of a motion to modify the decree to determine the facts. It is the father who stands to gain by the modification of the decree. Under ORS 107.135(2) the court cannot modify the decree as to any support payments that have accrued prior to filing the motion.

It is important in the day to day functions of the trial courts, clerks of the court, district attorneys, the Department of Human Resources and the Support Division of the Department of Justice that the judgment records in child support cases reflect the correct amounts and are not subject to “after the fact” modifications by some court-made rule.

The majority in this case is straining to correct what it thinks is an inequitable decision by the trial court. The apparent inequity results from the fact that the mother told the Department of Human Resources that it was all right for the father to quit making child support payments. A court of equity cannot disregard the clear meaning of ORS 107.435 and ORS 107.415 to correct an apparent injustice. Scoggins v. State Construction, 259 Or 371, 375, 485 P2d 391 (1971). Whether or not the mother has a right to collect the accrued child support payments in this particular case should be determined by the law of waiver or estoppel. That is the basis upon which the Court of Appeals determined the case. 52 Or App 671, 629 P2d 417 (1981). I do not mean to infer that I necessarily agree with the result reached by the Court of Appeals.

The Court of Appeals in its opinion found the oldest girl, Lissa, to be emancipated as of November, 1978. 52 Or App 671, 674, 629 P2d 417 (1981). In footnote 2 the Court of Appeals said: “This is the date (November, 1978) Lissa moved into her apartment. Because of the disposition it made of the case, the trial court was not required to set the date of Lissa’s emancipation.”