*1 February 10, Argued and affirmed submitted November ELLIS, Review, Respondent on ELLIS, Petitioner on Review. 27942)
(CA 18634, SC *2 Richard C. Houghton, Eugene, argued the cause and petition filed the and brief for petitioner. Ackerman,
Robert L. Eugene, argued the cause for respondent. With him on the brief was Ackerman & DeW- enter, Eugene.
TANZER, J. J.,
Campbell, filed a opinion. dissenting TANZER, J. motion from a denial of a father’s appeal
This is an by declaring modify a 1967 decree of dissolution him credit for granting daughter emancipated oldest emancipation.1 due since her payments which came mother and the father Custody had been awarded to the month, per per “for ordered to $60 was child shall be of said children until each and maintenance or otherwise twenty-one age, self-supporting, from the home.”2 daughter had The trial found that father’s emancipated and it terminated the become filing of this as to her effective on the date of obligation contending that his appealed, The father motion. date of the terminated as of the should have been held that emancipation. The Court of daughter’s terminated, regardless support obligation of when his accru- support payments rights had “waived” her mother daughter’s the date of the ing subsequent requested by the the trial court order as and modified on different Appeals, Court of but father. We affirm the *3 grounds. high from graduated oldest child parties’ into her thereafter moved in June of 1978 and soon
school her self-supporting, established apartment, own became have become trial court found her to own credit. The 1 parties’ younger daughter regarding relief the moved for similar The father emancipated. finding We have not a that she was denied which was regarding finding this no issue on review we reach review that reason to Matheny, Cooper 220 Or obligation. no contention under The mother has made (1960), support for each perhaps because the decree orders 349 only. child to child are the older Our references to rather than for both. child 2 age majority Laws 1973, legislature changed 18. Or of from the exempted things 827, from certain 84 of that Act § ch 14. The uncodified § (b): (a) and operation. are subsections Pertinent here its * * * entered, order, “(a) Nothing decree or affects in this Act incurred, duty liability, acquired, accruing, or right or or a accrued Act, in effect. law then of this under the the effective date before age majority “(b) minority, similar majority, of or words of A reference to order, of this the effective date entered before or decree intent in an order, age majority in effect when the of to be to Act shall be considered
judgment or was entered.” decree, scope Therefore, adjudicating we take as the purposes of this for of age majority. emancipated and the Court of found the time of November, 1978. After the had child self-supporting, out moved and become the mother notified Department both the father and the of Human Resources. thinking support obligation regarding father, paying support terminated, child was ceased her. for department alright The mother advised the with her that this was department stopped billing result, and, as a the father for for the child. proceeding February
The father commenced this seeking support obligation declaration that his for Although the child had terminated November of 1978. the trial court found her have been as of November, 1978, it ruled that it could terminate support obligations only father’s back to the date this proceeding was commenced because viewed the relief as modification of the that, decree. The court concluded despite the literal terms the initial decree and acquiescence pay- the mother’s in the father’s cessation of support obligations ments, the child had continued judgments powers to accrue into final outside of its grant relief. 107.135(2), relating to the enforcement provides: decrees, “The decree is a final or instalment money up which has accrued to the time either aside, party alter, modify makes motion set or decree, aside, power and the court does have to set decree, portion thereof, alter such provides any payment money, either for minor party, prior children or the of a which has accrued filing to the such motion.”
The enactment 1921 of what is now ORS unpaid support giving payments judg- the status of final they Oregon accrue, ments removed from courts power retroactively modify Poe, them. Poe v. *4 (1967); Shelley Shelley,
459-460,
436,
497, 503,
ORS not is here because this setting aside, case not involve or does alteration modifica Despite wording motion, tion of a decree. of the father’s 506 only of sought
it for the court to declare the extent issued, father’s under the decree as not obligation. the decree or the
The of a court to order child is authority support 107.105(l)(b). The statute refers governed by ORS parties, being the “minor children” of the a minor child one 109.510, married, years age, under 18 of ORS ORS The emancipated, and not see ORS 109.555.3 school,” may attending also order for a “child defined as * * “* unmarried, parties of 18 a child who is is age 21 age years is a of or older and under of and school, community attending college, regularly student col- university, regularly
lege attending of or or a course voca- gainful training designed or him tional technical to fit for (4). employment.” Or and See further 1981, ch 669. Laws period past
A child
order has no force
the child’s
of
Mack,
(1919),
Or
has 273, Baisley, parent. Flynn 45 ALR P obligations (1899), emancipation evi from circumstantial could found we held that dence: infant, unnecessary emancipation it writing to evidence “A is having direct evidence liberation established been held that his necessary Nor that implied is [citations omitted] from circumstances: doors, home, parent to afford out of or turn his infant should abandon * *” * earnings. relinquishment proof of his of the latter’s whereby petition provided procedure a minor legislature can has specify emancipation. an effect of such a declara- statutes declaration obligation. parent-child emancipation is to terminate tion emancipation Here, too, judicial finding 109.555(l)(b) of the fact and 109.010. relationship It ended. support-dependency father and child has implies emancipation states, nor this true, statute neither the dissent as the Statutory requirements drinking voting ages. proceeding minimum affect parental obligations in the legal relevance to those acts have judicial order. of a enforcement context *5 support lawfully A order cannot require more than underlying statutes require or authorize. The statutory limitations of a child obligation inhere in the decree whether stated in the decree or not because those limitations authority circumscribe the court’s make such Here, an order. some statutory limitations are stated in the decree not, and some are all they but have effect. Because the trial court found that the child was “otherwise emanci pated” then, of November of under the terms of decree, the initial the father’s support obligation for the child terminated at that any support time and instalments on her ceased behalf accruing. sum, only requires for the a minor child. There is no obligation under the
decree to child support after longer child is no judicial A minor. declaration that circumstances exist under obligation which an ceased to exist aat certain time does aside, not “set modify” alter or the decree in respect; merely describes the application the decree in the cir- cumstances. dissent, Jennings, Forbes v. relying on dicta in
supra, suggests that
judgment
amount
a
based on
unpaid
accrued
capable
should be
of ministerial
computation by reference to the face of the decree and the
docket,
rendering
thus
extrinsic facts immaterial.
The measurement of a
obligation
decreed
cannot always be
that simple. Fact-finding is
necessary
sometimes
to deter
mine the extent of any judgment
upon
which is based
periodic payments
accrued
ordered
a decree. Numerous
examples exist which affect
ripened
the extent of a
judg
appear
ment which do not
on the face of the decree but
may
which
proved by
be
one who seeks the benefit of
establishing a nonapparent
duration
per
decree. For
haps most obvious example,
this court has held that a
support upon
obligor,
terminates
the death of Streight
Streight,
majority, prove the fact of death to be entitled obligor would also judgment. of the That would determine the extent moved in or majority by marriage a child reached true if years. ages status out of student between proof a court look to examples demonstrate that These actual to the decree to determine the of facts extrinsic amounts accrued under extent of a based situations, apply specific do the decree to decree. To so is nothing inconsistent with this it. There diminish Poe, supra, Jennings, Poe v. supra, idea in Forbes v. cited the dissent.4 authority other *6 that death of a child the mother concedes Although age automati- reaching of a certain would or, perhaps, its that a argues she accruing obligation, cally terminate up an obligor when the sets applied rule should be different gener- such a defense will “emancipation” defense because This distinction is fact-finding. difficult ally entail more may clear-cut a fact Emancipation not be as unpersuasive. a reason for a different but that is not marriage, as death or rule. by the presented
Finally, argument much of the and estoppel notions of equitable centered around parties our Appeals opinion. Given waiver, was the Court of as instal- accruing no such there were determination equitable argu- reach the father’s ments, we need not ments. respondent on review.
Affirmed. Costs to CAMPBELL, J., dissenting. only in a decree is
I that a order agree a minor. the child is period of time during effective automatically However, emancipation I disagree drawn from ORS 107.415 also relies inferences dissent parent supporting parent notify if a child requires a noncustodial a custodial to military service, provides judicial authority to income, marries or enters earns “money paid” provide such information. require after a failure for “restitution” by way terms, By provides a means for the “restitution” its statute Although “money paid” ignorance some of the facts. of those or satisfaction legal assumptions, underlying may ambiguous wording be of subsection accrue purport govern continues to whether a does not 107.415 exist. when the ceases to changes the status of a child from a minor to an adult. I agree with the trial court that under ORS it had power to set aside the support payments child which had accrued as a final judgment prior to the time that the father filed his motion to modify the decree. I would therefore affirm the trial court. says in effect requires for the of minor children and there was
no obligation by the father to the mother child support for the November, 1978, oldest child after because the trial court found the child to be emancipated and therefore no longer minor.1 significance
“The “emancipation” of the word is not exact. It signify gift is used sometimes by parent a mere earnings, the latter’s and sometimes signify severance, complete far legal rights so and liabilities extend, parental Thus, relationship. emancipation may complete be partial, either conditional or absolute. may The minor emancipated purposes, for some but not others, parent may be freed of some of his obligations and yet divested of rights, some of his not freed divested of others. The child minority period.” balance or for a shorter Am59 Parent and Child Jur 2d 93 at §
Also to be considered is the rule that does not remove the disabilities infancy operate make the juris. child sui 59 Am Jur 2d Parent and Child § *7 (1971). 93 at 193
I have been unable to find an Oregon case that “emancipation,” defines but language the of ORS 109.550 109.656, passed by the legislature 1977 supports proposition emancipation automatically does not change status of a minor child to an adult.
ORS 109.550 reads: “As used in ORS 109.550 to 109.565: Appeals opinion Lissa, girl, 1The Court in of its found the oldest to be November, emancipated App as of 1978. 629 P2d (November, 1978) 2 the footnote of said: Court “This is the date Lissa apartment. case, disposition moved into her Because of the it made of the trial required emancipation.” court was not set the date Lissa’s of rights “(2) certain of ‘Emancipation’ means conferral of minor, in ORS 109.555. as enumerated majority a age years.” “(3) person means a under ‘Minor’ 109.555(2) provides: ORS any age qualifi- affect emancipation shall not “A decree of requirements liquor, the purchasing alcoholic cation for license, status under marriage nor the minor’s obtaining a added). (Emphasis ORS 109.510.” provides: 109.510 [majority of married “Except provided in ORS 109.520 any person to have persons], shall be deemed this state age years, thereafter of 18 and arrived at at business, have all control of his own actions shall have a citizen of subject all the liabilities of rights and be age.” full
I not do contend that ORS 109.550to ORS 109.565 statutory is controls this case. It a scheme wherein a juvenile application grant on a court written of minor parents. a decree of after I notice to claim only statutory language that the that a child who is shows emancipated does not lose its as a is status minor and general subject. therefore consistent with the law on the Oregon a in a It clear that when seems a child to be dissolution case declares minor self-supporting lose is the child does not because the child its status as minor. right acquire a Such a child would not a II, Const Art sec 2. It would still be to vote. Or employment. for the determination conditions minor parent guardian a would be The consent of ORS 653.010. marriage required A license. ORS 106.060. to obtain intoxicating years age purchase person not under 21 can age person eighteen liquor. ORS 471.105. A juvenile jurisdiction subject can of the court and to the hearing. court after remand be tried an adult provisions are All of these law 419.533. “emancipation.” age that can on best based receiving “emancipated” from said is that such “support payments.” child is ordered the father was divorce In the 1967 per specific “for month sum to the mother to support until each said children and maintenance *8 self-supporting, age, twenty-one or of shall be emancipated home.” from the otherwise pleading March, 1980, in a entitled the father DECREE” moved ORDER MODIFYING FOR “MOTION appear requiring the mother to for an order trial court the and show cause why not file herein “the decree on should * * * (father) following granting respects: modified in the obligations respect any unpaid with for credit parties, Ellis, date Lissa from the the minor child of the to * * *.” her daughter, the oldest trial court found Lissa, nating the decree termi- was modified provision as 1980. her of March for 107.135(2) it did not trial held that under ORS The have the court support pay- power give the father credit for prior filing due to the motion ments which were modify. any judge: the trial amounts In the words of “So judgment, having gone due, remain as that would judgment.” 107.135(2), relating to enforcement of provides:
support decrees, any is a instalment or “The decree final up money the time which has accrued either aside, alter, modify set party a motion to makes aside, decree, power not have the to set and the court does decree, thereof, any portion modify alter or such money, for minor provides payment of either party, prior which has accrued children or the filing motion.” such by saying: majority skates around the above statute applicable this not because case does “ORS aside, setting or modification of alteration involve motion, wording it Despite the father’s decree. extent court declare the sought for the issued, not to obligation father’s obligation. the decree or * * “* the child was found that Because trial then, emancipated’ as of November of ‘otherwise decree, the express of the initial father’s
under the terms at that time support obligation the child terminated accruing.” on her behalf ceased instalments Calling a horse a cow does not make a cow. by calling Likewise, a motion for modification a motion for declaratory relief does not make it so. my disagreements One of with the over *9 107.135(2) application meaning
the of ORS centers on the the of child in this word “accrued.” The claims the that once emancipated, case was fact the child payments accruing. ceased The term “accrued” is used Any payment money twice in the statute. which has “accrued” installment
prior to the motion to is a final judgment power modify and the court does have the any support payment the decree as to which has “accrued” prior filing the motion. dictionary
The
definition of “accrued” is: “due and
payable,”
Dictionary
“vested,” and “matured.” Black’s Law
(4th
1951).
Edition
107.135(2)
The statute which became ORS
was
by
Oregon legislature
enacted
the
in 1921. Prior to that
pay support
this
time
court had held that an order to
was
merely personal
and created
in the
express
nature of a
and
the
debt
absence of an
order was
upon
obligor.
not a lien
Hill,
land of the
v.
Mansfield
471,
Or
107 P
now. The is docketed with the property owned real lien and is a debtor. ORS 18.350. Jennings, supra, page at case of Forbes
explains further: plaintiffs grantor a final here
“So we have wife for per month to divorced $30 the sum date of daughter from the minor of their maintenance docketing twenty-one After old. she is decree until uncertainty judgment, whateveras to there is such amount due or to becomedue. to do All the clerk has ** * any, compute the number payments, if deduct the accrued, payments due have in which of months (Emphasis for such balance.” issue an execution thereafter added). date clear that once the It would seem passed money has an installment judgment upon which as a final amount has been docketed due and the installment “is execution could issue then *10 payable” “matured,” “accrued” “vested,” and has 107.135(2). meaning of within the ORS type by previous of case is controlled our This (1967) ruling Poe, 459, 425 458, v. 246 Or P2d 767 in Poe 107.135(2): wherein we referred to ORS held, finality repeatedly since the “This court has 1921 in judgment was added to the statute installment * * * modify power change or without to the court is they judgment.” support payments become a once jurisdiction by a court that has A entered judgment. subject parties is a final matter of the Payette-Oregon Lytle Dist., 276, 934 175 Or 152 P2d Irr. v. case had elected to have If the mother in this sup unpaid of child on the installments execution issued judgment, port as how could been docketed that had father defend? legislature Oregon ORS enacted
In 1971 the provides: 107.415, which
“(1) of a court party required a decree If 107.510, suit, in ORS as defined domestic relations of a minor support, nurture or education contribute to thereof, custody party has while the other child party contributing such notify parent shall custodial money when the minor child receives income from his own gainful employment, military or is married enters the service. “(2) Any parent notice, provide custodial who does not as
required by (1) may subsection required of this section by the court to make contributing party restitution to the any money paid, required by the decree. The court satisfy enter a part all or accrued accomplish (Emphasis the restitution.” added). agree
I
Judge
with
Eagen
Warren’s dissent
299,
Eagen,
App
(1981),
I also agree with the Court of Sullivan Sullivan, Or App (1975), wherein it said that the obvious reason for ORS 107.415 is give contributing parent an opportunity to move for reduction if parent so desires.
The 1971 legislature enacting giving the trial the power modify courts accrued child judgments circumstances, in certain specific reaffirmed that the courts do not have the authority to modify judgments those under other circumstances.
In this case gave the mother the father notice in 1978 that daughter self-supporting. oldest Lissa was This complied notice with ORS 107.415. The father elected not to file a motion to change decree based on a March, 1980, circumstances until when he asked that the divorce decree be modified give him credit the unpaid child support payments *11 November, March, through pay- 1980. Those accrued ments have been docketed as final judgments and cannot 107.135(2). deleted or modified. ORS theory majority To its this case the has claiming to be the judgment is conditional and self- is, executing. That the conditioned the upon is fact that the child needs support and that when the child is support payments the automatically terminate. I disagree with the proposition the is fact which should questions These are self-executing. the with provided mother father by the court. The decided Then the father ORS 107.415. required notice the by of a way going the burden of forward should have determine It is the the facts. the decree motion decree. gain by who the modification the father stands modify the decree the court cannot Under ORS payments prior that have accrued filing the motion. the day day functions of important
It in the is court, attorneys, courts, district trial clerks Support Division Department of Human Resources records Department Justice amounts and are support cases reflect the correct child by court- modifications some subject “after fact” made rule. straining case to correct in this by the court. is an decision trial inequitable
what
thinks
from
fact that the mother
apparent
inequity
results
all
of Human Resources that
it was
Department
told
making
support payments.
father to
right
quit
child
meaning
clear
equity
disregard
A court of
cannot
apparent
ORS 107.435 and ORS 107.415 to correct an
Construction,
injustice. Scoggins
State
right
mother has a