Hampton v. Hampton

Kelly, Justice

(concurring and dissenting).

I concur with that part of the decision that holds that L. 1973, c. 725, § 74, does not apply retroactively to terminate child support obligations at age 18. I also concur with the majority holding that the power of this court to punish for contempt is an inherent power which cannot be created or destroyed by the legislature. However, we have often carried out the policies of the legislative branch of the government as pronounced by statutory law and indeed have done so in upholding orders of the trial *505courts enforcing divorce decrees. Hurd v. Hurd, 63 Minn. 443, 65 N. W. 728 (1896). Hurd does not discuss the power of the legislature to create contempt powers and undoubtedly this court at that time accepted as a matter of comity the policy enunicated by the legislature in G. S. 1894, § 4810, which permitted the enforcement of divorce decrees by contempt as does Minn. St. 518.-24 today. Whether the power to enforce decrees for support is premised on the inherent powers of the court or of the legislature should not be determinative of the issue. If it is matter of policy for this court’s determination, I would permit its use in the discretion of the court below given the circumstances of this case. If we are to base it on the policy of the legislature, we are advised by that body that their enactments are not to be given retroactive effect unless clearly intended by the legislature. Brugger v. Brugger, 303 Minn. 488, 229 N. W. 2d 131 (1975).

The payment of support or other allowances to a spouse is so intertwined with the other provisions in a divorce decree that the equities as weighed and balanced by the trial court would be thrown out of balance by a holding that contempt proceedings are not available to enforce the provisions dealing with support. This kind of result is undoubtedly the basic reason behind the statutory presumption against giving retroactive effect to all legislative enactments. Thus, if we base our decision on the policy of the legislature for reasons of comity, the policy of permitting the trial court to enforce allowances for support by contempt proceedings should be continued because the legislature has created a presumption against retroactive effect.

The case of Lieder v. Straub, 230 Minn. 460, 42 N. W. 2d 11 (1950), cited in the majority opinion, should apply to all support provisions in divorce decrees entered after the effective date of the statute changing the age of majority to 18. That case was premised on legislative intent as indicated by these words quoted in the majority opinion: “Hence, we are of the opinion that the legislature did not authorize the court to enforce its orders for support money for the children by extraordinary remedies after *506the children reached majority.” 230 Minn. 463, 42 N. W. 2d 13. I would conclude that the legislature did authorize this court to decide that no retroactive effect was to be given to the key statutes in this case and that consequently, enforcement of support provisions in1 this case by contempt proceedings is permissible and within the confines of legislative policy.