Morancy v. Morancy
Annotate this Case
Morancy v. Morancy (2000-378); 173 Vt. 609; 800 A.2d 435
[Filed 21-Dec-2001]
[Motion for Reargument Denied 22-Mar-2002]
ENTRY ORDER
SUPREME COURT DOCKET NO. 2000-378
Katherine O'Connell-Kivler Morancy } APPEALED FROM:
}
}
v. } Windsor Family Court
}
Michael Morancy }
} DOCKET NO. 263-10-81 Wrdm
In the above-entitled cause, the Clerk will enter:
Upon consideration of appellee's motion for reargument, the entry
order issued by the Court in this matter on December 21, 2001, is modified
as follows:
*Footnote FN1 on page 3 is deleted.
*The second full paragraph on page 3, beginning with "Therefore," and
ending with "elgible for support." is deleted.
*The following final paragraph is added:
Although the effect of the child support order in this case was to
require payment of child support beyond the statutory period of
eligibility, father here never moved to modify the order, instead
unilaterally reducing payments as each child turned eighteen. As noted
earlier, this was improper. Furthermore, it is well settled that the court
may not retroactively modify or annul previously accrued child support
payments. See St. Hilaire v. DeBlois, 168 Vt. 445, 447, 721 A.2d 133, 135
(1998). Modification may take effect only on or after the date of a motion
to modify. See Harris v. Harris, 168 Vt. 13, 24, 714 A.2d 626, (1998).
Absent such a motion here, we conclude that the judgment awarding
arrearages must be affirmed.
*The mandate is modified to read as follows: Affirmed.
In all other respects, the motion for reargument is denied.
FOR THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
________________________________________
James L. Morse, Associate Justice
________________________________________
Denise R. Johnson, Associate Justice
________________________________________
Marilyn S. Skoglund, Associate Justice
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Morancy v. Morancy (2000-378)
[Filed 21-Dec-2001]
ENTRY ORDER
SUPREME COURT DOCKET NO. 2000-378
SEPTEMBER TERM, 2001
Katherine O'Connell-Kivler Morancy } APPEALED FROM:
}
}
v. } Windsor Family Court
}
Michael Morancy }
} DOCKET NO. 263-10-81 Wrdm
Trial Judge: Theresa S. DiMauro
In the above-entitled cause, the Clerk will enter:
Father Michael Morancy appeals from a family court order affirming a
magistrate's decision awarding mother past due child support in the amount
of $6900. Father raises several claims focusing on whether the court
erred in awarding arrearages for child support payments beyond the
statutory period of eligibility. We agree that the court erred, and
therefore reverse and remand.
The parties were divorced in Vermont in December 1982. The divorce
judgment awarded mother custody of the parties' two minor children and
ordered father to pay mother one hundred dollars per week in child
support. The order did not set a termination date for the support
provision. When the older daughter turned eighteen on January 1, 1991,
father reduced the child support payment to fifty dollars per week. When
the younger daughter turned eighteen on May 5, 1992, father ceased paying
support altogether. Father did not file a motion to modify, and mother did
not consent to these reductions.
Both daughters continued high school beyond their eighteenth birthday.
The magistrate found that the older daughter spent all or part of her
senior year attending school in Denmark. Apparently because she did not
obtain full credit for the overseas schooling, she repeated part of her
senior year at Hanover High School, graduating in June of 1992. The
younger child experienced health and personal problems while attending her
local high school, enrolled in a neighboring school, had to repeat a
grade, dropped out temporarily in the Spring of 1992, and then re-enrolled
for her senior year in the fall of 1992. She did not complete high
school, dropping out of school permanently after completing the first
semester of her senior year in December 1992. The younger child received
her GED in April 1993.
In October 1995, the office of child support filed a motion on behalf
of mother to enforce the child support provision of the 1982 divorce
decree. After an evidentiary hearing, the magistrate ruled that father
was not entitled to automatically reduce by half the amount of child
support that he
was paying when the older daughter turned eighteen. The court relied on
Messier v. Bickford, 146 Vt. 292, 293, 501 A.2d 1192, 1192-93 (1985),
which held that "a divorce decree which sets an undivided weekly sum to be
paid for the support of two or more minor children is deemed to require
payment of the entire sum until the youngest child attains majority or
until the decree is otherwise prospectively modified by a court order."
As the Messier decision explained, rather than unilaterally undertaking a
pro rata reduction in the amount of the undivided award each time a child
attains his or her majority, "the proper remedy is to seek modification of
the decree in the trial court." Id., 501 A.2d at 1193.
The magistrate concluded that because the child support provision of
the divorce decree did not allocate the support on a per child basis, the
obligation continued unmodified until the younger child turned eighteen or
completed her secondary education. See 15 V.S.A. § 658(c) ("The court may
order support to be continued until the child attains the age of majority
or terminates secondary education whichever is later."). Although the
younger child turned eighteen in May 1992, she began her senior year of
high school in the fall of that year, and left school permanently that
December. Construing the statute to allow support payments to continue
past the eighteenth birthday during temporary leaves from school, but not
to include pursuit of a GED, the magistrate ruled that the full support
obligation should continue until December 1992. This resulted in an order
requiring payment of arrears totaling $6900. Father appealed to the family
court, which affirmed the magistrate's decision. This appeal followed.
As noted, our child support statute provides that support shall
continue "until the child attains the age of majority or terminates
secondary education whichever is later." 15 V.S.A. § 658 (c). By
ordering father to pay the full support obligation until the younger
daughter permanently left school in December 1992, however, the court
effectively compelled payment beyond the older daughter's statutorily
compelled termination date, which the court found to be the date of her
graduation in June 1992. In so ruling, the court understandably relied on
Messier's holding that an undifferentiated support obligation continues
until the youngest child attains majority. 146 Vt. at 293, 501 A.2d at
1192-93. Shortly after the Messier decision, however, we questioned its
continued viability in light of the Legislature's enactment of 15 V.S.A. §
651(d) (since recodified as § 658(c)), which, we noted, "refers
exclusively to 'the child' . . . [and] requires an individual award for
each child based upon all relevant factors." Cleverly v. Cleverly, 147
Vt. 154, 158, 513 A.2d 612, 614 (1986).
In recent years, we have emphasized that, "[a]bsent an agreement to
the contrary, the court does not have 'authority to enter a support order
effective beyond the later of a child's majority or termination of
secondary education.' " Knowles v. Thompson, 166 Vt. 414, 422, 697 A.2d 335, 339 (1997) (quoting McCormick v. McCormick, 159 Vt. 472, 480, 621 A.2d 238, 242 (1993)); see also Cavallari v. Martin, 169 Vt. 210, 214, 732 A.2d 739, 742 (1999) ("the family court has no jurisdiction to enforce a
child support order against [defendant] beyond the eighteenth birthday of
the child or the child's graduation from secondary school"). In the
absence of any legal duty to provide support beyond the statutory period,
we must conclude that Messier's requirement of full support payments until
the youngest child attains majority is no longer viable. The trial court
here simply lacked the statutory authority to order payments for the older
daughter beyond the
termination of her secondary education. See Hawkins v. Hawkins, 797 S.W.2d 897, 898 (Tenn. Ct. App. 1990) (although father had unilaterally reduced
support by half when older child turned eighteen, court exceeded statutory
authority in ordering payment of arrearages that accrued after child
turned eighteen). (FN1)
This is not to hold, however, that the non-custodial parent is free to
unilaterally terminate an unallocated child support obligation on a pro
rata basis as each child turns eighteen or graduates from secondary
school. In this respect, Messier was correct that the parent's proper
remedy is to seek a modification of the judgment in the trial court. 146
Vt. at 292, 501 A.2d at 1193. This allows the court to consider whether
the individual needs of the remaining minors may require something less
than a straight pro rata reduction. As the Illinois Supreme Court, in a
similar case, explained: "It is the function of the court to determine
whether there should be a pro rata reduction in lump-sum periodic support
payments when one of several children is emancipated, or whether other
equitable considerations require that the reduction be a lower amount, or
in fact whether there should be any reduction in the payments. Automatic
reduction in support payments in a case such as the one before us
constitutes an infringement upon the discretionary powers of the court to
modify an award." Finley v. Finley, 410 N.E.2d 12, 17-18 (Ill. 1980);
see also Ross v. Ross, 397 N.E.2d 1066, 1070 (Ind. Ct. App. 1979) ("the
obligated parent should not be allowed to arbitrarily reduce the support
payment, but should petition to the trial court for an examination of
current conditions to determine if modification of the order is proper");
Hawkins, 797 S.W.2d at 798 (after older child turned eighteen, trial court
properly increased weekly child support for younger child from $75 (half of
$150) to $100 in light of father's earning capacity and child's needs).
Therefore, although the order here must be reversed because it
included payments for the older daughter beyond her period of eligibility
under the child support statute, the court remains free on remand to
recalculate the amount of child support to be reimbursed to mother based
upon an independent assessment of need for support of the younger child
during the period that she remained eligible for support.
Finally, father contends the court erred in determining that support
for the children could continue beyond their eighteenth birthdays since
neither was in school at the time. The evidence supports the court's
finding that the hiatus between the older daughter's return from school in
Denmark and her re-enrollment in high school in Hanover was intended to be,
and was, a temporary termination of secondary school education, and
therefore that father's support obligation properly continued until her
graduation in June 1992, when she was nineteen. The record similarly
supports the finding that the younger daughter's periods of non-enrollment
were temporary, that she remained
financially dependent, and that support properly continued until she
dropped-out permanently in December 1992. Although the statute does not
speak directly to circumstances such as these, a reasonable interpretation
would allow support to continue past the eighteenth birthday when the child
is either still in school, or has ceased schooling for a temporary period
but intends to continue. See, e.g., Kruger v. Kruger, 679 P.2d 961, 962
(Wash. Ct. App. 1984) (since purpose of provision for child support while
children were in school was to encourage completion of education without
incurring economic disadvantage, support would cover temporary periods of
absence from school).
The judgment is reversed and the matter is remanded for a
recalculation of child support arrearages in conformity with the views
expressed herein.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Disallowing the enforcement of "arrearages" of child support
payments for periods after the child turns eighteen or graduates from
secondary school cannot be considered an impermissible retroactive
modification of the support order. See St. Hilaire v. DeBlois, 168 Vt.
445, 447, 721 A.2d 133, 135 (1998) ("the family court has no authority to
relieve the obligor spouse of the duty to pay any accumulated child
support arrearages"). The child support order must be construed in
accordance with the statute, which does not allow orders requiring support
beyond the age of majority or termination of secondary education.
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