Summary
holding that when a contract provides for payments until a child reaches "the age of majority" subsequent increases in the age of majority would not be incorporated into the contract to extend the obligation
Summary of this case from Simon v. PNC BankOpinion
43762 Record No. 770493.
January 12, 1979
Present: Carrico, Harrison, Cochran, Harman, Poff and Compton, JJ.
Consent decree is contractual and, although entered after age of majority was lowered by statute (Code Sec. 1-13.42) to 18, the decree only amended and did not supplant the property settlement agreement under which the husband was to make monthly support payments for a child while in the mother's custody until the child became 21, and the court could order continuation of the payments when custody was restored to mother.
(1) Domestic Relations — Child Support — Consent Decree should be Construed as Contract — Decree Affected only Monthly Obligation and Amended rather than Supplemented Contractual Provisions.
(2) Domestic Relations — Child Support — Parties Intended Support Obligation to Continue until Child Reaches 21 or other Contingency Stated in Contract Occurs.
In a property settlement contract executed January 10, 1972, husband and wife agreed wife would have custody of minor children, including daughter then age 9, and husband would make child support payments of $267 per month per child until such time as child became 21, or married, etc. The husband was to pay amounts for other designated needs of children. On July 1, 1972, the age of majority was reduced by General Assembly from 21 to 18. The final divorce decree on September 25, 1972, ratified and incorporated the property settlement contract. In November 1973 a consent decree was entered awarding custody of the daughter to the father and reducing the support payments by $267 per month until the further order of the court. By another order in 1976 custody of the daughter was restored to the mother and the monthly payment was reinstated for the period fixed in the contract. The father now argues that the consent decree of 1973 supplanted the terms of the settlement contract and deprived the Trial Court of jurisdiction to order support beyond age 18.
1. The contractual obligation to make monthly cash payments was only one of several provisions dealing with child support. While a consent decree is a court order, it is contractual in its nature and should be construed as though it was a contract. Of the several contractual provisions touching child support, the consent decree affected only the monthly obligation and served only to amend rather than supplant the contractual provisions, the parties' contractual intent thus being the controlling factor.
2. The contracting parties intended the father's monthly payments for support of the child to be conditioned upon the mother's custody; did not intend to limit the support obligation to the child's minority but to the period preceding 21; and the contract contained several support provisions other than monthly cash payments indicating the parties' intent to provide for the children both before and after they attained their majority. Meredith v. Meredith, 216 Va. 636, 222 S.E.2d 511 (1976); Mack v. Mack, 217 Va. 534, 229 S.E.2d 895 (1976) distinguished. The support obligation should continue until the child reaches 21 or until one of the other contingencies stated in the contract occurs.
Appeal from a decree of the Circuit Court of Fairfax County. Hon. James Keith, judge presiding.
Affirmed.
William J. LoPorto for appellant.
Burke F. McCahill (Quinlan H. Hancock, on brief), for appellee.
This appeal raises the latest in a series of questions concerning the jurisdiction of the courts to order child support payments beyond the child's 18th birthday.
In a property settlement contract executed January 10, 1972, William Gazale (William) and Solange Gazale (Solange), his wife, agreed that Solange would have custody of their minor children, the youngest of whom, Pamela, was born June 18, 1962, and that William would make child support payments of "$267 per month per child . . . until such time as each child shall attain the age of 21 years, become[s] married, self-supporting or otherwise emancipated." The contract further required William to pay the costs of certain other designated needs of the children.
Effective July 1, 1972, the General Assembly reduced the age of majority from 21 to 18 years. Code Sec. 1-13.42.
By decree entered September 25, 1972, Solange was granted a final divorce. The decree affirmed, ratified, and incorporated the terms of the property settlement contract.
On November 29, 1973, the chancellor entered a consent decree awarding William custody of Pamela and reducing the total monthly child support payments by $267 "until the further Order of this Court."
By another order entered December 17, 1976, the custody of Pamela was restored to Solange, and the monthly payment required by the contract for her support was reinstated for the same period fixed in the contract.
Appealing from this order, William contends that the consent decree supplanted the terms of the property settlement contract providing monthly support payments for Pamela and "deprived the Court of jurisdiction to order support beyond age 18."
We have decided four appeals questioning the effect of the statutory reduction in the age of majority upon child support orders.
In Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974), the parties executed a separation agreement which obligated the husband to make child support payments until the children became 21 years of age or "otherwise emancipated", and this contract was incorporated into the divorce decree entered in September, 1970. New statutes are usually presumed to operate prospectively only, Code Sec. 1-16, and contractual rights and duties are controlled by the law in effect at the time the contract was executed. Applying these rules and considering several provisions of the contract reflecting the parties' intent to provide for the children not only before but also after they attained their majority, we held that the parties never meant the term "otherwise emancipated" to include emancipation resulting from a subsequent change in the law.
Next, we decided Eaton v. Eaton, 215 Va. 824, 213 S.E.2d 789 (1975). There, a separation agreement executed by the parties required the husband to make monthly payments of $300 for support of a son until he reached age 21. Unlike the Paul contract, the Eaton contract was never incorporated in the divorce decree. That decree, entered in March, 1972, ordered the husband to make monthly payments of $200. Following the statutory reduction in the age of majority, the court entered another order reducing the amount to $125. Later, after the child attained age 18, the court relieved the husband of any further support obligation, and the wife appealed. Noting that the court's authority to order child support payments was limited to "minor children", we held that the court lacked jurisdiction to order child support payments for a child older than 18. We distinguished Paul on two grounds. First, since the challenged order in Eaton was entered subsequent to enactment of the statute changing the age of majority, the question of retroactivity raised in Paul was not involved. Second, while in Paul, "there were no subsequent support orders supplanting the contract provisions", which had been incorporated in the divorce decree, 215 Va. at 827, 213 S.E.2d at 791, in Eaton the contract provisions pertaining to child support were "supplanted by subsequent court orders in the divorce suit dealing specifically with that subject." Id.
In Meredith v. Meredith, 216 Va. 636, 222 S.E.2d 511 (1976), the 1970 divorce decree incorporated a contract requiring the father to support the child "until such child shall reach his majority." 216 Va. at 637, 222 S.E.2d at 511. Construing the intent of that language, and citing cases from other jurisdictions holding that majority or minority is merely a status and not a vested right, a status the contracting parties were charged with knowing was subject to change by the legislature, we held that the parties intended the term of support duty to be no longer than the period imposed by Virginia law, and therefore, that the father was relieved of his obligation when the child reached the new age of majority fixed by the statute.
We dealt most recently with the issue in Mack v. Mack, 217 Va. 534, 229 S.E.2d 895 (1976). In Mack, the 1961 divorce decree incorporated a contract requiring the father to pay $300 a month for the joint support of two "minor children". When the elder child reached 21 in 1971, the trial court "applied the agreement" and ordered the husband to pay $225 a month for the support of the younger child. Later, following the statutory change in the age of majority, the court ordered the husband to continue support payments until the younger child reached 21. Reversing that order we held, as in Meredith, that the contracting parties intended that the husband's duty to support the "minor" children would terminate upon their attaining whatever age of majority might be fixed by statute.
The thread of decision running through these four cases had two strands. We decided first whether the parties' contractual intent was applicable and, if so, we construed the provisions of the contract to determine that intent. Where, as in Eaton, the child support provisions of the contract were supplanted by subsequent court orders, contractual intent was inapplicable; otherwise, it was controlling. Moreover, as in Mack, when the contract is incorporated in the divorce decree, a subsequent order revising the amount of the monthly payment does not necessarily "supplant" the contract provisions regarding child support.
Pursuing the same thread of decision, we consider the threshold question whether the consent decree supplanted the child support provisions of the Gazale contract. We think not. The contractual obligation to make monthly cash payments was only one of several provisions dealing with child support. William was also required to pay the children's medical and dental expenses until each reached the age of 21; to finance a four-year college education for each child, including the eldest daughter who had already passed the age of 21 when the contract was signed; to continue the $267 monthly payments during college summer vacations; and to establish an insurance trust for the support of his wife and children.
While a consent decree is a court order, it is " 'contractual in its nature and should be construed as though it were a contract.' " Culpeper Nat'l Bank v. Morris, 168 Va. 379, 385, 191 S.E. 764, 767 (1937), quoting 3 Freeman, Judgments Sec. 1350 (5th ed. 1925). Of the several contractual provisions touching child support, the consent decree affected only the monthly obligation. Applying the law of contracts, we conclude that the consent decree served only to amend, rather than supplant, the contractual provisions, see 17 Am.Jur.2d Contracts Sec. 459 (1964), and that the parties' contractual intent is, therefore, the controlling factor.
Having made that determination, we must now construe the contract to determine contractual intent. Manifestly, the contracting parties intended William's monthly payments for Pamela to be conditioned upon Solange's custody of Pamela, a fact tacitly recognized by the terms of the consent decree which suspended those payments when custody was awarded to William. Moreover, the contracting parties did not limit the term of the monthly support obligation to the period of the children's minority, as in Meredith and Mack, but to the period preceding age 21, as in Paul. Again, as in Paul and unlike Meredith or Mack, the Gazale contract contained several support provisions other than that for monthly cash payments which evince the parties' intent to provide for the children both before and after they attained their majority.
We hold, therefore, that the consent decree did not supplant the contract and that the contracting parties intended that, so long as Pamela was in Solange's custody, William's monthly support obligation should continue until Pamela reached 21 or until one of the other contingencies stated in the contract occurred. The order below effectuates that intent, and the order will be affirmed.
Affirmed.