No. 14335
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
OLETHA R. CHRESTENSON,
Plaintiff and Appellant,
-vs-
EDWIN J. CHRESTENSON,
Defendant and Respondent.
Appeal from: District Court of the Fourth Judicial District,
Honorable Jack L. Green, Judge presiding.
Counsel of Record:
For Appellant:
Klaus Sitte, Legal Services, argued, Missoula, Montana
For Respondent :
Raymond J. Fox argued, Missoula, Montana
Submitted: December 14, 1978
~ecided
: JAN l u g 7 9
Filed:
.,PLS -:. :4
yJ
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Plaintiff appeals from a judgment and order of the Dis-
trict Court, Missoula County, dismissing with prejudice her
petition for a contempt citation against defendant for failure
to make child support payments.
This appeal questions the effect on child support pro-
visions, in divorce decrees entered prior to 1972, of Article 11,
Section 14, 1972 Montana Constitution and its implementing stat-
ute, section 64-101, R.C.M. 1947, which establish age eighteen
as the age of majority. The parties hereto were divorced on June
5, 1963. Custody of their three minor children was awarded to
plaintiff, and defendant was ordered to pay $150 per month in
child support. Since the time the original decree was entered,
two of the children have grown and left home, and several modi-
fications of the support obligations have been made. The last
modification occurred on July 15, 1975, when defendant was ordered
to pay plaintiff $90 per month in support of the one child remain-
ing with her.
On October 30, 1977, the youngest child became eighteen
years of age. On the advice of his attorney, defendant stopped
paying any child support to plaintiff after that date. In Feb-
ruary 1978 plaintiff initiated contempt proceedings seeking con-
tinuation of the support payments. The District Court concluded
that because Article 11, Section 14, 1972 Montana Constitution
provides that a person eighteen years of age is an adult, defen-
dant's obligation to pay child support terminated on the youngest
child's eighteenth birthday. This appeal followed.
The question of whether an obligation to pay child support
which arose at a time when the age of majority was twenty-one
years continues until age twenty-one even though the age of major-
ity has been lowered to eighteen presents a case of first impression
in Montana. The question is not, however, entirely unique.
In Arizona, which like Montana has adopted the Uniform
Marriage and Divorce Act, it has been held that a child support
obligation arising solely by the laws of Arizona terminates upon
the date the child reaches the age of majority, eighteen years.
Corbett v. Corbett (1977), 116 Ariz. 350, 569 P.2d 292. In
Corbett, the parties were divorced in May 1967, at which time the
age of majority was twenty-one years. The age was lowered to
eighteen in 1972. The child involved turned eighteen years old
on December 26, 1974. The Court held that the obligation to
pay child support terminated on that date. The only difference
between the Arizona and Montana law is that in ~rizonathe lower-
ing of the age of majority was by statute only. In Montana it
was both by statute and by the Constitution.
In another earlier case, the Arizona Court ruled that the
statute lowering the age of majority fixed the status of minor
and adult on its effective date and terminated child support pay-
ments for persons eighteen years or older on that date whose pay-
ments had been required by a divorce decree entered prior to that
date. Stanley v. Stanley (1975), 112 Ariz. 282, 541 P.2d 382.
The same result has been reached by a different analysis
in a Virginia case. Eaton v. Eaton (1975), 215 Va. 824, 213
S.E.2d 789. In Eaton, the parties were divorced in 1971. On
July 1, 1972, the age of majority was lowered to eighteen. On
November 20, 1972, the original support provisions of the divorce
decree were modified by order of the court. This order provided
that support was to be paid until further order of the court. The
Supreme Court ruled that the modification of support was a new
decree for child support to which the law lowering the age of major-
ity applied. Therefore, the support order had no effect after the
child reached age eighteen.
Here there are circumstances similar to Eaton. The original
support order was in 1963. The latest modification in 1975
provided that support would be paid until further order of the
court. Under the Eaton rationale, the constitutional and statutory
provisions lowering the age of majority would apply to the order
of November 1975 because the order was entered after the effec-
tive date of those provisions.
We agree with the conclusion reached by the ~rizonaand
Virginia courts. Defendant's obligation to pay child support
terminated upon the child's becoming eighteen years old. while
we find these authorities from other jurisdictions persuasive,
however, we do not adopt them as entirely controlling. Rather, we
reach our conclusion on the basis of the applicable Montana stat-
utes. Section 61-104, R.C.M. 1947, provides that "the parent or
parents entitled to the custody of a child must give him support
and education suitable to his circumstances". Section 64-101,
R.C.M. 1947, as amended to implement Article 11, section 14, 1972
Montana Constitution, provides that "minors" are males and females
under eighteen years of age and that "[all1 other persons are
adults". The plain import of these constitutional and statutory
provisions is that upon attaining the age of eighteen a person is
an adult and is no longer a "child" within the purview of section
61-104 of whom parents are entitled to custody or to whom parents
are obligated for support. Thus, at the time this proceeding was
initiated, plaintiff was no longer under a duty to support the
child, and defendant was likewise no longer obligated to provide
funds for the fulfillment of that duty.
Plaintiff, in her brief, relies heavily on an Oregon case,
Lekas v. Lekas (1975), 23 0r.App. 601, 543 P.2d 308, which reached
an opposite result from our conclusion here. In Lekas, however,
the divorce decree provided specifically that child support would
continue to age twenty-one. Here, the decree and the subsequent
modifications stated only that support would continue until further
order of the court. We do not by our holding here in anyway
contradict the provisions of section 48-330(3), R.C.M. 1947,
allowing parties to agree in writing or expressly provide in
their decree of dissolution for termination of child support
at an agreed upon age or time. Where such specific provision is
made, it controls. Such is not the case here.
Plaintiff also seems to be claiming that she has a vested
right to receive child support until the child reaches age 21.
However, as pointed out in Stanley v. Stanley, supra, the claim
of child support is not a vested right. Neither is the age of
majority or minority a vested right; rather, it is a status.
Stanley v. Stanley, supra.
We find no error in the District Court's dismissal with
prejudice of plaintiff's petition for a contempt citation against
defendant.
Af firmed.
Chief Justice
J
Jus ices
Mr. Justice Daniel J. Shea concurring:
I concur with the result in this case but the clear
implication of the decision is that no child is entitled
to the support of his parents after he reaches the magic
age of eighteen years. In doing so, it appears that we
have relied too much on 1972 Mont. Const. Art. 11, S14 and
perhaps may have locked ourselves into an untenable position
for the future.
Art. 11, S14, states that "a person 18 years or older
is an adult for all purposes." This section impliedly grants
rights and impliedly imposes obligations on a person who
reaches the age of eighteen years; but it does not release
a parent from an obligation to support one who has arrived
at the age of eighteen years. I do not believe that this
constitutional provision would prohibit the legislature from
imposing a duty on parents to support their children who
have reached the age of eighteen years. At least we should
not make such decision until that particular case comes before
us for decision.
Nor do I think that section 64-101, R.C.M. 1947 (con-
tained in the chapter entitled "Persons and Personal Rights")
adds anything as a legitimate basis for the court's conclusion.
The statute provides as follows:
"64-101. Minors and adults defined. Minors
are :
"1. Males under eighteen (18) years of age;
"2. Females under eighteen (18) years of
age. All other persons are adults."
This section says no more than what is contained in the
constitution. There is no reason to give any weight to this
legislative enactment when the constitution mandates that
there can be no other substantive definition. The statute
does nothing more than declare a status already mandated by
the constitution.
- 6 -
I would uphold the District Court on the basis that
there was a sufficient factual basis in the record to
conclude that support was not needed for the child. I am
not willing however, to tie the hands of a District Court,
or the legislature, by holding that the obligation to support,
by virtue of the constitution, automatically stops when the
child reaches eighteen years of age.
I also question the court's conclusion that if the
decree expressly provides for the continuation of child
support beyond the age of eighteen years, it will control.
In light of this Court's interpretation of Art. 11, S14,
I fail to see how a District Court would be empowered to
place such a provision in a decree of dissolution. I
recognize however, that the parties could agree to an
obligation to support a child beyond the age of eighteen years.
/f2iLbg~-A-
Ju 'ce