Lang v. Lang

Ringold, J.

(dissenting)—I disagree with that portion of the majority's opinion holding that the trial court erred in granting post-majority child support for educational purposes. Under the 1973 dissolution of marriage act (1973 Act), courts have the power to modify a decree to grant post-majority child support upon a showing of substantial change of conditions. In re Marriage of Studebaker, 36 Wn. App. 815, 677 P.2d 789 (1984); In re Marriage of Gimlett, 95 Wn.2d 699, 704, 629 P.2d 450 (1981). The majority errs in refusing to apply the 1973 Act to the case sub judice.

The majority considers whether it is proper to apply the act retroactively to the pre-1973 divorce decree, assuming that a modification is not a new proceeding to be governed by the laws at the time of the modification. This assumption is not warranted. The Supreme Court has decided that for some purposes a modification is a new proceeding. State ex rel. Mauerman v. Superior Court, 44 Wn.2d 828, 271 P.2d 435 (1954); Lambert v. Lambert, 66 Wn.2d 503, 403 P.2d 664 (1965).

Policy, including the needs of the child, favors considering a modification a new proceeding, governed by current law. Child support is to be determined by all circumstances which have a bearing on the welfare of the children and the economic situation of the parents. Puckett v. Puckett, 76 Wn.2d 703, 705, 458 P.2d 556 (1969). The paramount con*769cern of the courts in proceedings to modify support is the welfare of the child. Johns v. Johns, 64 Wn.2d 696, 702, 393 P.2d 948 (1964). The law should be liberally construed to afford children the greatest possible remedy. No justification comes to mind which warrants that the needs of children be treated differently based solely on the date when their parents' marriages were dissolved.

RCW 26.09.170, adopted by Laws of 1973, 1st Ex. Sess., ch. 157, § 17, requires a showing of substantial change in circumstances before a support obligation may be modified. This was also the law in Washington prior to 1973. Lambert v. Lambert, supra at 508. I would hold that once a party has demonstrated the requisite change of circumstances, the current law be applied to a modification hearing.3

This approach has been taken elsewhere. In Minnesota, which, like Washington, has adopted the Uniform Marriage and Divorce Act, the Minnesota Court of Appeals considered whether to apply 1983 statutory changes in modification guidelines to a pre-1983 divorce decree. The court held " [tjhere is ... no reason why future modifications of support, assuming they are prompted by the requisite change of circumstances, should not be governed by the law in effect at the time of the modification motion." Hadrava v. Hadrava, 357 N.W.2d 376, 379 (Minn. Ct. App. 1984).

Even if a modification proceeding is nothing more than an extension of the original decree, the majority's conclusion that the 1973 Act is not applicable is incorrect. "Where . . . a statute is remedial and its remedial purpose is fur*770thered by retroactive application, the presumption favoring prospective application is reversed." Haddenham v. State, 87 Wn.2d 145, 148, 550 P.2d 9 (1976). A statute is remedial if it relates to remedies and does not affect substantive or vested rights. Miebach v. Colasurdo, 102 Wn.2d 170, 180, 685 P.2d 1074 (1984). The 1973 Act extends the possibility of child support past the age of majority, thus expanding a remedy available in a dissolution proceeding. This part of the act should be applied retroactively because it does not affect vested rights. See Miebach.

There is no vested right in any general rule of law or policy of legislation that it remain unchanged for one's own benefit. Johnson v. Continental West, Inc., 99 Wn.2d 555, 563, 663 P.2d 482 (1983). "[T]he legislature is without power to set aside, annul, or change the liability upon a judgment affecting solely the rights of private parties by the enactment of a general law." Baker v. Baker, 80 Wn.2d 736, 741, 498 P.2d 315 (1972). Child support payments, however, are not vested judgments until the installments become due. Schafer v. Schafer, 95 Wn.2d 78, 80, 621 P.2d 721 (1980). Until they are vested judgments, they are subject to modification by the trial court. See Schafer; RCW 26.09.170. Application of the 1973 Act would not, therefore, improperly affect liability on a judgment or infringe vested rights.

The change of circumstances must be something other than a change in the law itself. See Cunningham v. Cunningham, 12 Wn. App. 778, 532 P.2d 652, review denied, 85 Wn.2d 1010 (1975). In Cunningham, the court held that a modification proceeding was merely an extension of the original divorce action. Consequently, a subsequent change in the age of majority from 21 years to 18 years could not be applied to the modification proceeding. The cases relied upon in Cunningham do not support the contention that a modification hearing is only an extension of a divorce decree; instead, they concern whether a change in the age of majority was retroactive to an original divorce decree. I agree with the result in Cunningham because there was no showing of a change in circumstances other than a change in the law, but the holding is overly broad.