Johansen v. Johansen

GREENWOOD, Judge

(dissenting):

€{15 I respectfully dissent from my colleagues, to suggest an alternative approach to resolving the primary issue in this case.

T 16 I begin by repeating some of the facts included in the majority opinion and adding some additional facts. The divorce decree in this case was entered January 1989. The decree included an order of child support for the three children of $540 per month. The order was silent as to any per child amount or future reductions as each child turned eighteen or was otherwise excluded from child support.

117 Utah Code Ann. § 78-45-7.10 (Supp. 1989) (the Statute) was enacted and became effective April 24, 1989. The Statute originally provided that it was effective when a child became eighteen years of age. See id. It was amended in 1994 to the present version of subsection (1), to state it was effective at age eighteen "or [when the child] has graduated from high school during the child's normal and expected year of graduation, whichever occurs later." Utah Code Ann. § 78-45-7.10(1) (Supp. 1994). The two older children, Laura and Lynsay, turned eighteen on September 2, 1995 and October 1, 1997, respectively. The State, through the Office of Recovery Services (ORS), acted on behalf of appellee to collect the child support. See Utah Code Ann. § 62A-11-101 to -104 (2000). Appellant appeared in court on an Order to Show Cause on October 4, 1995, brought by ORS to collect child support ar-rearages that had accrued through May of 1995, before any of the children turned eighteen. Almost a year later, appellant contacted ORS regarding reducing his child support obligation because of his eldest child's eman*525cipation. ORS asked appellant to provide worksheets that appellant had indicated he possessed. However, there was no further communication between appellant and ORS. On February 15, 2000, appellant filed his petition to modify child support and retroactively reduce his child support obligation.

{18 At the time the divorcee decree was entered, Utah Code Ann. § 15-2-1 (1999) provided, as it does now, that "[the period of minority extends in males and females to the age of eighteen years.... It is further provided that courts in divorce actions may order support to age 21." Utah Code Ann. § 15-2-1 (1999). Therefore, courts may order child support to be paid for a child up to twenty-one years of age, provided appropriate findings are entered. See Fletcher v. Fletcher, 615 P.2d 1218, 1224 (Utah 1980); Thornblad v. Thornblad, 849 P.2d 1197, 1199-1200 (Utah Ct.App.1998) (upholding trial court's continuation of child support beyond age eighteen based on substantial change of cireumstances). The courts can also enforce an agreement by the parties in a divorce action to continue support beyond that allowed by statutory law. See Despain v. Despain, 627 P.2d 526, 528 (Utah 1981); see also Balls v. Hackley, 745 P.2d 836, 837-38 (Utah Ct.App.1987) (affirming trial court's enforcement of parties' stipulation that child support would continue after eighteen years under specified circumstances).

119 Until 2000, ORS could not modify a support order unless it acted through the courts, In Karren v. State Department of Social Services, 716 P.2d 810 (Utah 1986), our supreme court held that the Public Support of Children Act then in effect gave the state agency "the power to collect unpaid support debts that acerue[ ] under existing court orders," but not "the power to modify an already existing support order. The power to modify a decree is retained by the courts under section 80-3-5." Id. at 818. Therefore, ORS could not modify support orders through administrative proceedings. Id. The holding in Karren was applied in Starks v. Department of Social Services, 750 P.2d 199, 200 (Utah Ct.App.1988). Starks also noted that because ORS's "right to reimbursement is derived from the spouse entitled to support," it could seek modification from the courts based on a "substantial change in cireumstances occur[ring] subsequent to the entry of the original divorce decree." Id. at 201.

{20 This court's opinion in Ball v. Peterson, 912 P.2d 1006 (Utah Ct.App.1996), cited by the majority, appears to be the only Utah decision addressing the impact of the Statute. In Ball, the child support order at issue was entered in 1992 and did not refer to emancipation or other events that would terminate child support. See id. at 1008. A month later, one of the children turned eighteen. Later, a second child moved in with the father (the obligor in this case) and also turned eighteen. See id. Both children turned eighteen before the 1994 amendment to the Statute, which added the provision that support be adjusted after the age of eighteen or graduation from high school, whichever occurred later. The father proportionately reduced the child support he was paying and filed a petition to modify child support, based in part on the fact that the two children were then eighteen. See id. The trial court's order assumed that the 1994 amendment was applicable in determining child support due. See id. at 1009.

121 This court held that the trial court erred in retroactively applying the 1994 amendment, which would have extended the father's obligation beyond the eighteenth birthdays of his children. See id. This court concluded that the amendment was substantive because it determined when a support obligation ends and affects a child's substantive right to support. See id. The amendment could not apply because the children turned eighteen before the amendment's effective date.

1 22 The Ball court went on to discuss the retroactivity of the trial court order. See id. at 1011. That order had not only erroneously awarded child support through the date of graduation from high school, but had also awarded an increase in child support for other unemaneipated children on the basis of a substantial change in cireumstances. This court reversed the increased child support award to the extent it was retroactive. See id. at 1011-12. The court cited Utah Code *526Ann. § 30-8-10.6(2) (1998), which provides that a support order may not be retroactively modified, except to the date when the petition to modify was filed and the other party was notified. See Ball, 912 P.2d at 1011-12.1 However, the court also examined application of the Statute and its mandate that the base child support award be reduced or adjusted.2 See id. at 1010. In Ball, the father's child support obligation increased, in part, because the custody formula changed from joint to sole custody. See id. at 1011. The Ball opinion uses the statutory term "automatic" to describe the adjustment when a child reaches the age of majority, id. at 1011, 1018, but does not address further what "automatic" means. In Ball, the father's petition was filed within three months of the eighteenth birthday of one of the children, followed by his former wife's counter petition, wherein she sought child support until the later dates when the children graduated from high school. The court neither discussed nor addressed retroactive modification of the child support based on the Statute, and it appears that this issue was not before the court. Moreover, the facts in Ball differ from this case, where appellant seeks retroactive adjustment of support to a date almost five years preceding the filing of his petition. Also, because the children in this case turned eighteen after the effective dates of the statute and the 1994 amendment, there is no prohibition in applying the statute as amended. As a result, Bail does not resolve the issue before us of the propriety of retroactive relief.

23 Appellant filed his petition to modify prior to when the legislature authorized ORS to conduct adjudicative proceedings to modify child support orders in some cireum-stances, including where the parties stipulate to the changes. See Utah Code Ann. §§ 62A-11-106, -304.2 (2000 & Supp. 2001). Therefore, a court petition was the only means available to modify the child support order at that time.

[ 24 According to ORS's brief, their practice and policy when the original support order is not clear, is to seek agreement of the parties to modify a child support award. If, however, the parties cannot agree and the order is ambiguous, ORS will not try "to interpret the intent of the trial court but will continue to enforce the support based upon the existing order, as it is written, until further order of the court." See also Utah Code Ann. § 78-45-7 (Supp. 2001) (providing for automatic adjustments of support when provided for in order).

T25 The issue before us in this case, I believe, is the interplay among the Statute's provision for automatic adjustment of the base child support obligation; section 80-3-10.6(2) (renumbered as Utah Code Ann. § 78-45-9.3(4) (Supp. 2001)), prohibiting retroactive modification of support orders; and section 15-2-1's allowance for support up to age twenty-one. Or, stated differently, does "automatic," as used in the Statute, allow retroactive modification of child support to the triggering date of either a child's eighteenth birthday or graduation from high school. -

126 In construing statutory language, we read statutes "as a whole, and [interpret their] provisions in harmony with other provisions in the same statute and 'with other statutes under the same and related chapters?" Lyon v. Burton, 2000 UT 19, 117, 5 P.3d 616 (citation omitted). I believe we can harmonize the various statutory provisions by holding that the Statute mandates adjustment of child support obligations, when appropriate, based on the worksheets and procedures referred to in the Statute. The adjustment is automatic when that procedure is applied. The child support guidelines are designed so that when the required information is inserted there is an automatic calculation of the base child support and the *527child support obligation. See Utah Code Ann. § 78-45-7.7 (Supp. 2001). However, the timing of the effectiveness of the automatic adjustment is limited by section 30-3-10.6(2). Further, it may not happen at all if the support order provides for extended support as permitted in section 15-2-1, or "otherwise provide[s] in the child support order." Utah Code Ann. § 78-45-7.10(1) (Supp. 2001).

127 In this case, the adjusted child support would be retroactive to the date ORS was notified that appellant had filed his petition to modify. This result is consistent with Utah cases holding that where a modification in child support was justified by cireum-stances such as a change in custody of children, but the petition to modify was not filed until some time after the triggering event, retroactive reimbursement was nevertheless barred. See Karren, 716 P.2d at 812-13; Starks, 750 P.2d at 201. When the order is self-executing by providing that child support will adjust in accordance with the child support guidelines and tables when the children are emancipated, there is, of course, no need to modify the order. Furthermore, we must allow for operation of section 15-2-1, which coexists with the Statute and allows for support orders other than the "automatic" adjustments resulting from application of the Statute.

128 I would therefore affirm the trial court's denial of appellant's motion for summary judgment.

. The statute states:

A child or spousal support payment under a child support order may be modified with respect to any period during which a petition for modification is pending, but only from the date notice of that petition was given to the obligee, if the obligor is the petitioner, or to the obligor, if the obligee is the petitioner.

Utah Code Ann. § 30-3-10.6(2) (1998) (renumbered and amended as Utah Code Ann. § 78-45-9.3(4) (Supp. 2001)).

. The Statute originally used the term "reduce" and was amended to substitute the word "adjust." The Ball court discussed the impact of the change in language. See Ball v. Peterson, 912 P.2d 1006, 1010 (Utah Ct.App.1996).