In Re the Marriage of Robinson
629 P.2d 1069
Colo.
1981
Check Treatment

*1 technical and weigh highly this evidence which, its in- those inferences draw it judgment, deemed best warrant-

formed over-

ed the data before it. We would

step statutory authority our under section

40-6-115(2) (3), we and C.R.S. were and

substitute our inferences

those of Commission.

Judgment affirmed.

In re the MARRIAGE OF Roal S.

ROBINSON, Petitioner, Robinson, Respondent.

LaVelle S.

No. 79SC297. Colorado,

Supreme Court

En Banc.

June through operations. ness well be advertisements. encumber It now its is not that a conversion to common carrier status— inconceivable that this additional financial bur- pursue encourage compete aggressive- which would it to ave- authorize these den it to would expansion tip ly destructively existing prospec- nues of the balance to- —would competition. precisely ward excessive or destructive tive It is business. kind choice Moreover, competing legis- as a common carrier Star would between which the inferences provide expertise service in includ- the areas lature has committed to the application, ed in its an does Commission.

quently his non-custodial father was not support for pay boy during appeal, that summer. On the Court Appeals concluded that there had been no and reversed the trial ruling. In re the court’s Rob- inson, Colo.App., 601 P.2d 358 granted certiorari now affirm the deci- Appeals. sion of the Court of The marriage of the was dissolved in 1975. The of dissolution decree of mar- riage parties’ incorporated Separation, Property Custody and Child Settlement Agreement,1 provided that LaVelle S. (wife) custody Robinson would have of the three minor children and that Roal Rob- S. inson, (husband), Jr. pay sup- would port following accordance with the agreement: “The pay shall to the for [husband] [wife] support, maintenance care and education of the children custody, in her the sum of TWO HUNDRED TWENTY-FIVE AND ($225.00) month, per NO/100 Dollars for child, beginning each 1st day of the subsequent month signing to the and exe- agreement. cution of for the [husband] children shall continue for each of the children until each such child reach age years complete of 21 his or her education, whichever is later in time, unless such child shall sooner be- emancipated, come then event, support obligation shall cease upon emancipation.” sole here is whether hus- Marshall, Marshall & Donald band young- W. Mar- must shall, Jr., Brighton, Eric, petitioner. child, during est the summer before he college. entered

Gaunt, Coover, Dirrim & C. Vincent graduated Eric Phelps, Brighton, respondent. high from school Colo- August rado in September of 1977. In LOHR, Justice. Virginia spend went to time his father and returned to Colorado on Feb- County The Adams District Court ruled ruary February early 1978. From until 19-year-old boy that a who obtained full- May, Eric lived in with his away time Colorado mother employment from home entry employed days summer before his and was five week at an into was emancipated During for that time and eonse- hourly rate of this time he $3.50. Only portions directly supply background those of the record ments in the briefs to infor- support arrearage relevant to the child issue mation such as the incorporated that the fact rely undisputed are before us. We state- into the decree. applied Arapahoe for admission Commu- of Wyoming State from May, College. nity encourage- With mother’s through August, 1978.

ment, roughneck *3 week in order ming parture Wyoming. lege. lived May lege. During paid cepted within a week or two when return from began attending Arapahoe Community Col- charge 15 to his own in he His Eric for Wyoming returned to his mother’s home and wages on an oil application begin him for obtained Wyoming, to living expenses.2 of approximately $300 earn his new until stay Wyoming, housing drilling more for He left home about September in Eric’s mother did or food. money crew in Wyo- after After his was of for 1978, Eric and col- de- ac- dependent ing liable for his pated and through August, Robinson went to Eric] Eric ning port will “The Court “The Court further finds that [*] about $300.00 week. month of is in attending college September, be ... $225.00 month [for [*] further finds that on said ... May, further finds that anyone [*] 1978, periods per support, work, 1978, since he was earn- [*] from and he was emanci- of time.” and so when Erie H. the child [husband] [*] May, he was not long begin- 1978, [*] sup- is judgment The sup- court entered for child agreed informally The had that port arrearages March, February, April for pay support the husband need not for Eric 1978, and September, and denied both child during the of through months October 1977 support for the summer months the and 1978, January of young when the man had attorneys’ wife’s claim for fees. In a min- visiting been husband. the The husband ute order the denying wife’s motion for a however, payments, did not resume when trial, new the court trial elaborated on its home, Eric to the wife’s returned and in ruling earlier written and concluded that May 1978 wife the a filed motion the ruling the a proper reflected construction judgment trial court to reduce the ar- parties’ agreement the original for child rearages for February, April. March and support. August In of 1978 the husband countered Appeals The Court of determined that a alleging with motion that Eric had be- the record did not the trial September come court’s emancipated in of 1977 conclusion that asking emancipated Eric was dur- the court verifying for an order ing May through the months of emancipation. August such 1978, reversed the denial child support evidentiary hearing An held Octo- for those months and affirmed trial the 6, 1978, ber the court decided con- judgment respects. court’s in all other In sider the payment status for review, only certiorari issue the hearing Eric as of the date. The husband Appeals’ correctness of the Court of deci- conceded that sion sup- that husband should February, April months of March and port Eric for summer months of September 1978 and for when began Eric college; only for the summer months remained in only contention. The duty husband’s child support presented hearing evidence at the was the governed by his child Eric is the terms testimony. wife’s The trial court made the of the written were which incor- following relevant written after porated in the decree of dissolution of mar- hearing: riage. provides that of a obliga- “The Court finds child will begin- further terminate husband’s ning Robinson, May, tion support payments Eric H. to make [wife], 14-10-122(3), assistance found summer child. also See section C.R.S. employment in the Wyoming prescribes State that same result in temporarily moved his residence the absence of different in a provision a 2. Eric’s loaned mother him while he was living Wyoming.

1072 (1964).4 of dissolu- 197 174 agreement or a decree N.E.2d The elements written marriage. then is tion of of emancipation may vary with the context. emancipated during the whether Eric was addressing While in such as those cases in Wyo- he worked summer of 1978 when right of to his child’s income it parent ming.3 to,emancipate said that power is with Surman, parent, see Bonner v. 215 Ark. Emancipation relates to termina (1949); 220 431 see also 67A S.W.2d rights and duties of those which other tion (1978), yet Parent 7 C.J.S. and Child § parent and child exist between wise involving parent’s duty other cases minority. See Am.Jur.2d Par the child’s hold that a child can effect emanci 67A Par ent and Child C.J.S. § pation and Child It is concerned in certain circumstances his own § ent extinguishment parental Annot., more with the voluntary acts. cases cited in See rights and duties than with removal (1970); see generally 32 A.L.R.3d 1055 *4 infancy. of See Van v. disabilities Orman (1944).5 Minn.L.Rev. 275 Professor Clark Orman, 177, Colo.App. Van 30 492 P.2d 81 suggests disability particular that “[a] [or (1971); 59 Am.Jur.2d Parent and Child 93§ parental obligation] longer should no exist Annot., (1971); (1946). 165 A.L.R. 723 The whenever the child’s circumstances have so question emancipation may of arise in a changed creating the reason for the contexts, g., variety right of e. the of a disability obligation] longer no exists.” [or child, parent wages by to earned his the Clark, H. The Law of in Domestic Relations duty parent goods necessary of a to (1968). 8.3 the United States § services his child a third or furnished to case, In the context of this party, duty parent support and the of a to attempting to state a test ade without Clark, his child. H. The Law of Domes See situations, when, quate for all we hold that States, tic Relations in the United 8.3 § by express implied agreement or between a (1968). may emancipated A minor id.; parent, purposes capable but not for others. See and a child who is of Clark, in Domestic providing H. Cases and Problems for his own care and un (2d 1974); Relations 517 ed. 59 Am.Jur.2d home, parents’ dertakes to leave his earn (1971); 67A Parent and Child 93 C.J.S. § living his own and do as he wishes with his (1978); Parent and Child 5 28 Minn.L. § earnings, emancipation Spur occurs. See Here, (1944). Rev. 275 we consider the Bank, geon v. 151 Mission State F.2d 702 question emancipation of as it relates to the (8th 1945); Cir. 59 Am.Jur.2d Parent and parental duty support. termination of the of Child, (1971). 94-95 The burden of §§ proving emancipation is on one assert emancipation What constitutes a is Bank, ing Spurgeon it. v. Mission State question of Tencza v. Aetna Casualty law. supra; Casualty Surety Tencza v. Aetna & Co., 226, Surety & 111 Ariz. 527 P.2d 97 Co., (1974); Wood, 280, supra; Wood v. 135 Conn. 63 see 67A C.J.S. Parent and Child Stitle, (1948); (1978).6 A.2d 586 245 Ind. emancipation Stitle 9 Whether has § Co., Casualty Surety 3. No issue is made of the trial court’s conclu- See Tencza v. Aetna supra. & sion, parties agreed, to which the that a child unemancipated return to an state after a period Fetters, emancipation. Marriage See In re “Emancipation 5. Professor Clark states as a Colo.App. (1978); 41 584 P.2d 104 useful, legal only term as a means of but Bellach, Vaupei v. 154 N.W.2d Iowa reached, already describing a result not as an (1967). Clark, analytical tool.” H. The Law of Domes- tic Relations in the United States 8.3 § interpret 4. We do not Van v. Van Or- Orman man, supra, contrary. to the construe the 6. We need not decide here whether that burden Appeals’ Court of the case that statement in that evidence, requires g., convincing clear and e. emancipation essentially one Raffo, Holmes v. (1962), 60 Wash.2d 374 P.2d 536 fact, of and circumstances of each sidered in dards for to mean no more than that the facts only preponderance of the evi- must be con- case dence, Casualty Surety g., e. Tencza v. Aetna & determining legal whether the stan- Co., supra. have been established. been established must be determined in The child support agreement lends light all the facts circum relevant additional to our It conclusion. In re stances of case. specific provision makes for continuation of Weisbart, Colo.App. 564 P.2d 961 support payments for a child until Orman, supra; Van v. Van Orman child completes college his education. Wood, supra. Wood v. provides also cessation sup port obligation emancipation. on par uncontroverted evidence was ties provision made no for abatement of job Wyo that Eric left home to take the in regular school va ming with his mother’s assistance and en periods. cation The absence of pro such a couragement in order increase earn vision is “emancipation” indicative that ings anticipation need to used agreement in the was meant to refer attending expenses fall.7 permanent and not temporary emancipa accepted he Although had not been into tion. Even if temporary emancipation began when he the new employ would otherwise result from short- Eric’s ment, filed, application had been term, well-paying employment, here planned go college, application and his implicitly provided by written accepted shortly after he commenced agreement incorporated in the decree of employment. The trial court’s conclusion marriage dissolution of that such would not emancipated that Eric was while he was be the result. That decree earning approximately week work 14-10-122(3), control. Section ing Wyoming entirely based C.R.S.1973. *5 fully conclusion that such an income was agree with the Court Appeals adequate support.8 for the boy’s The Court that the evidence in case is insufficient longer view, of Appeals recogniz took the to support the trial court’s conclusion that where, here, ing that “.. . as a is Eric emancipated. was temporarily during employed preparation the summer in The husband also cites v. Brown despite year, appar educational Brown, 183 Colo. (1974), 516 P.2d 1129 ent independence the child for a short as that authority the wife is not entitled to period, result not . intended .. support receive payments for the sum ‘emancipation.’ parent’s The custodial fi mer of was “actually 1978 because Eric not responsibilities during nancial continue supported by with her her.” Id. at temporary child’s absence.” Financial inde 516 P.2d at 1181. situation Eric’s is differ pendence and the establishment of a resi ent from that of the children in Brown. away parental dence from the are home support His needs related educational significance determining emancipation. plans the expected costs of which could be Weisbart, In Marriage supra. re the during year. to be incurred the academic however, Here, the evidence that Thus, support payment the fact that a child summer did not free Eric from equiva in a summer month is not offset dependence on parents during financial expenses lent on the year departure child’s behalf in that school and his from his dispositive. home month is temporary, mother’s and was in There was no so, earning showing tended to while was mon that scheduled child ey help expenses. unnecessary his educational payments in total were Although findings accepted 7. the trial court care made no whether he was or respect plans, boy Wyoming earning to Eric’s educational $7.50 not. If this was in Appeals properly hour, Court of emancipat- relied on uncontro an I then believe he was testimony purpose. time, verted of the wife for that during accept- ed he’d been whether Inc., Lots, v. See Weed Monfort Feed Later, Colo. go during ed to not.” Corp. 402 P.2d 177 Cordillera inquiry by counsel into the circumstances Heard, (1978). Colo.App. 592 P.2d Eric, judge $450 mother’s loan to trial money boy said: “If wants a she to send wife, During the course of examination of the earning gift, that’s then that’s a week said; judge “Maybe the trial I can shorten this far as I’m concerned.” questioning by telling you line this. I don’t year. needs

Eric’s total circumstances, Eric’s absence

Under these home the summer

from his mother’s preclude collecting

did not her from

support payments period. for that the decision of the

We affirm Court

Appeals.

ROVIRA, J., dissents.

ROVIRA, Justice, dissenting. respectfully

I dissent. agree

I with and the view ex- Cise, J.,

pressed in his re by Van dissent In Robinson, Colo.App., 601

P.2d 358 view, my 19-year-old

In man who lives

apart parents, from his earns $300

week, self-supporting is, entirely as a law, emancipated.

matter of of the trial court were well

supported by the evidence. I would reverse Appeals.

the decision of the Court of *6 GONZALES,

Ralph Petitioner,

The DISTRICT COURT In and For OTERO,

COUNTY OF State of Colora-

do, Sisk, and the Honorable Fred E. one Judges thereof, Respondents.

No. 80 SA 553.

Supreme Colorado, Court of

En Banc.

June