Vivian L. DOWLING, Appellant, v. James K. DOWLING, Appellee.
No. 6454.
Supreme Court of Alaska.
March 30, 1984.
679 P.2d 480
In our view, the term “holders of gear licenses” can only be reasonably construed to refer to individual named licensees. As of the enactment of the Limited Entry Act in 1973, of which
AS 16.43.260(a) is a part, a gear license was a personal license. Gear could not be fished except in the presence of the named licensee; and the gear license could not be transferred except to aleviate hardship due to the inability of the licensee to continue fishing.AS 16.05.670 . When the legislature limited the right to apply for an entry permit “holders of gear licenses issued underAS 16.05.536 -16.05.670 ...“, it meant the individuals who had been issued gear licenses under these statutory sections; not such individuals and their partners as well.
Since Nash was not the individual named licensee, he was not a holder of a gear license and was thus not eligible to apply for the Cook Inlet gill net salmon fishery.5
In conclusion, we AFFIRM the decision of the superior court.
John W. Sivertsen, Jr., Richard D. Pennington, Aglietti & Pennington, Anchorage, for appellee.
Before BURKE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and MOORE, JJ.
OPINION
BURKE, Chief Justice.
James and Vivian Dowling were divorced in Anchorage on September 24, 1974. The divorce decree incorporated the parties’ property settlement and child custody agreement. The agreement provided that Vivian Dowling receive custody of the four minor children, and that James Dowling pay child support. In the event of the coming of age, marriage, death, or emancipation of a child, the child support payments would be reduced pro rata.
In 1977, the Alaska Legislature changed the age of majority from nineteen years of age to eighteen.
On September 1, 1981, Vivian Dowling filed a motion for modification of child support. The motion, opposed by James Dowling, requested the superior court to order James Dowling to pay post-majority educational support should any child decide to attend college as a full time student. The superior court denied her motion. Vivian Dowling appeals the superior court‘s rulings on both motions.
We first review the superior court‘s ruling on James Dowling‘s motion. The child support agreement provided that James Dowling would pay child support “until the
The definition of the word “emancipate” is: “to release from paternal care and responsibility and make sui juris ... to free from restraint, control, or the power of another.” Webster‘s New Collegiate Dictionary 370 (1973). “Emancipation” is defined as “[t]he act by which one who was unfree, or under the power and control of another, is rendered free, or set at liberty and made his own master.” Black‘s Law Dictionary 613 (4th ed. 1968). Thus, we believe that the meaning of the phrase “otherwise emancipated” includes an emancipation “by law,” such as the attainment of the statutory age of majority.2
However, Vivian Dowling also contends that
The repeal or amendment of any law does not release or extinguish any penalty, forfeiture, or liability incurred or right accruing or accrued under such law, unless the repealing or amending act so provides expressly. The law shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of the right, penalty, forfeiture, or liability.
The phrase “right accruing or accrued” has been construed to mean a vested right. Alaska Public Utilities Commission v. Chugach Electric Association, Inc., 580 P.2d 687, 692 (Alaska 1978); Bidwell v. Scheele, 355 P.2d 584, 586 (Alaska 1960).
The term “vested” means “fixed; accrued; settled; absolute.” Black‘s Law Dictionary 1734 (4th ed. 1968). Since a child support order is modifiable after judgment upon a showing of substantial change in circumstances,3 a child‘s right to future, unaccrued installments of child support is not a vested right.4 Thus,
We next review the superior court‘s denial of Vivian Dowling‘s motion. The issue is whether a court has the power to modify a child support order so as to provide for post-majority educational support.
A motion to modify a child support order is made pursuant to
[A]ny time after judgment the court, upon the motion of either party, may set aside, alter, or modify so much of the judgment as may provide for the
care and custody of the minor children or for their nurture and education....
(Emphasis added). An order may be modified notwithstanding the fact that it was based on a separation agreement or stipulation signed by the parties. Curley v. Curley, 588 P.2d 289, 291-92 (Alaska 1979).
In Hinchey v. Hinchey, 625 P.2d 297, 300 (Alaska 1981), this court held that
It is of particular significance that the statute was not drafted to read “nurture and education of minor children” for then post-majority support would be clearly prohibited. Lacking such an express limitation, we think the term “children,” in the context employed, is ambiguous and thus subject to judicial construction.
Other Alaska statutes pertaining to custody of children specify whether they are applicable to minor children.
This conclusion is supported by the decision in French v. French, 117 N.H. 696, 378 A.2d 1127 (1977). The New Hampshire court ordered the college fees paid for two children after they had reached the age of majority. The New Hampshire court reasoned that the word “minor” did not appear in the custody and support statute, and that the legislature would have included “minor” if it had intended to limit support to minor children. Hinchey, 625 P.2d at 300 (footnotes omitted).
The Hinchey court did not consider other relevant statutes in determining the legislative intent behind
In light of these provisions, we are not convinced that the legislature intended to provide for post-majority educational support in either an original decree, or in a modification of the original decree. To the extent Hinchey is inconsistent with this conclusion, it is overruled. The superior court correctly denied Vivian Dowling‘s motion, and its judgment is AFFIRMED.7
MATTHEWS, Justice, with whom RABINOWITZ, Justice, joins, dissenting.
Today‘s opinion overrules the holding of Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981) that a court may order a divorced
(1) Because
(2) Because
(3) Because an adult child of married parents is not generally entitled to parental support, the court apparently believes that it follows that the legislature meant to bar a court in a divorce action from ordering post-majority educational support.
In my view all of these reasons are invalid.
I.
Turning to the first reason for the majority‘s decision, I do not agree that
Moreover, the power to grant a certain type of remedy carries with it, as a procedural matter, the power to modify the remedy in appropriate circumstances in the future. That is the meaning and function of Civil Rule 60(b).2 J.C. v. M.L.C., 668 P.2d 1351, 1352 (Alaska 1983). If § 220 were meant to eliminate this power it would be in conflict with Rule 60(b) and would be invalid under Art. IV, § 15 of the Constitution of Alaska.3
For these reasons, the majority‘s premise that § 220 prohibits modification of a decree which provides support for adult children is incorrect. It follows that the majority‘s implied conclusion that § 220 prohibits, by implication, decrees providing support for adult children is unfounded.
II.
The second reason expressed by the majority in support of its conclusion that post-majority educational support may not be ordered is that
III.
I now address the third reason. It is true that non-divorced parents are ordinarily not required to pay support to their adult children. It does not follow from this fact that a legislature might not rationally permit an award for educational support for adult children in a divorce decree. The Washington Supreme Court has recently addressed this issue in Childers v. Childers, 89 Wash.2d 592, 575 P.2d 201 (1978):
The fact that married parents may legally bid their children “a fiscal farewell” at age 18 when some divorced parents may be legally required to provide financial support when they are able but do not chose to do so, led the Court of Appeals to its conclusion. The fact that most married parents chose willingly to make financial sacrifices for their childrens’ education, including college and regardless of age, seems to have been disregarded.... In allowing for divorce, the state undertakes to protect its victims.... Quoting from R. Washburn, Post-Majority Support: Oh Dad, Poor Dad, 44 Temple L.Q. 319, 327, 329 (1971):
A number of courts adopt the policy that a child should not suffer because his parents are divorced. The child of divorce parents should be in no worse position than a child from an unbroken home whose parents could be expected to supply a college education.
. . . .
To terminate support when the parents are divorced creates a special disadvantage not shared by children whose parents remain together. If the father could have been expected to provide advanced education for his child, it is not unfair to expect him to do so after he has been divorced.
That the divorced parent, especially non-custodial, will sometimes not willingly provide what he otherwise would have but for the divorce, we recognized long ago in Esteb v. Esteb, 138 Wash. 174, 184, 244 P. 264, 267, 246 P. 27 (1926):
.... Parents, when deprived of the custody of their children, very often refuse to do for such children what natural instinct would ordinarily prompt them to do....
In the 1973 act, the legislature simply allows the court to secure for the children what they would have received from their parents except for the divorce, limited to that which is necessary for the children‘s and society‘s well-being and that which will not work an undue hardship on parents. Nothing more is expected of divorced parents than married parents, and nothing less.
In all probability more married parents will be making sacrifices financially for their children 18 and up than will the divorced parents who, in the sound discretion of the trial court, will have a legally imposed duty to do so. Even if the legislation does create a classification, it rests upon a reasonable basis. It is based on considerations already mentioned, and the facts known to the legislature and this court as well as to the layman, of the disruptions to homelife, bitterness and emotional upset which attend most marital breaks. The irremediable disadvantages to children whose parents have divorced are great enough.
In conclusion, none of the three reasons alluded to by the majority for overruling Hinchey has merit. Thus, I continue to believe that the holding of Hinchey is correct for the reasons there expressed. I therefore conclude that the superior court had authority to decide appellant‘s motion seeking modification of the child support provisions of the decree. I would remand this case for consideration of the motion on its merits.
Notes
A person is considered to have arrived at majority at the age of 18 years, and thereafter has control of his own actions and business and has all the rights and is subject to all the liabilities of citizens of full age, except as otherwise provided by statute. Civil Rule 60(b) governs modification of divorce decrees as to child custody and support issues. See, e.g., Livingston v. Livingston, 572 P.2d 79, 85-87 (Alaska 1977).
The supreme court shall make and promulgate rules governing the administration of all courts. It shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts. These rules may be changed by the legislature by 2/3 vote of the members elected to each house.
In a judgment in an action for divorce or action declaring a marriage void or at any time after judgment, the court may provide
(2) for the payment by either or both parties of an amount of money or goods, in gross or installments, as may be just and proper for the parties to contribute toward the nurture and education of their children, ...