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interpreting the language "appoint an attorney to represent the interests of a minor or dependent child with respect to his custody, support, and visitation" under section 14-10-116, C.R.S. 1973, and concluding that a court with jurisdiction to enter a decree for support may order support for adult dependent children
Summary of this case from Travers v. Chervellera (In re Dowdy)Opinion
No. 81CA0512
Decided January 14, 1982. Rehearing denied February 4, 1982. Certiorari granted June 14, 1982.
Appeal from the District Court of the City and County of Denver, Honorable John F. Sanchez, Judge.
Maurice R. Franks, for appellee.
Brian J. Berardini, Steven E. Shinn, for appellant.
Division II.
This dissolution of marriage action was commenced in January 1974, and the marriage was dissolved in June 1974. In the decree, the husband was required "until further order of court" to pay $150 per month to the wife for the support of "the minor child of the parties, Karla Koltay," and to maintain his present health and accident insurance covering Karla. Karla became 21 in February 1979, and the husband discontinued paying child support on that date.
In September 1980, the wife filed verified motions for continued payment of child support and for payment of insurance. She alleged: (1) that, since the date of the decree, Karla "has been hospitalized numerous times and has required the services of many medical doctors"; (2) that, although she has attained the age of 21, "because of her physical and emotional condition she is still dependent upon her mother for support"; (3) that Karla's "emotional and medical condition" does "not allow her to be employed" and she is "unable to provide for her own support"; and (4) that her "physical and emotional condition" causes her to be "totally disabled and incapacitated, and therefore unemancipated." She further alleged that the husband had stopped remitting to her, or to the medical supplier, the checks issued by his health insurance carrier to pay Karla's medical bills.
The husband moved to dismiss the wife's motions on the grounds that, on Karla's 21st birthday, his legal obligation to support terminated as a matter of law, and that the court was without jurisdiction to order child support after she became 21, no motion to perpetuate child support having been filed prior to that date. On these grounds, and without an evidentiary hearing on the merits of the wife's motions, the court granted the husband's motion to dismiss. The wife appeals. We reverse.
In considering the husband's motion to dismiss based upon the pleadings, we must assume that the factual allegations contained in the wife's motions are true. Strout Realty, Inc. v. Snead, 35 Colo. App. 204, 530 P.2d 969 (1975). Therefore, we assume that the child is incapacitated and incapable of providing for her own support.
The issue on this appeal is whether, under the circumstances of this dissolution action, the court has the power to provide for the continued support of this incapacitated adult child of the parties after she attained majority, or whether the trial court was correct in ruling that such provision automatically terminated and that it lost any jurisdiction over the subject of child support when the child reached age 21.
Under ordinary circumstances, a child is considered to be emancipated at 21, if not earlier; and, with emancipation, the parents' duty of support terminates. See In re Marriage of Weaver, 39 Colo. App. 523, 571 P.2d 307 (1977); Van Orman v. Van Orman, 30 Colo. App. 177, 492 P.2d 81 (1971). However, "[t]he question of emancipation is to be determined with reference to the specific facts of each case." In re Marriage of Weisbart, 39 Colo. App. 115, 564 P.2d 961 (1977). "The fact that a child has attained its majority does not, ipso facto, work the emancipation of the child." Union Pacific Ry. Co. v. Jones, 21 Colo. 340, 40 P. 891 (1895).
Prior to the 1958 amendment to C.R.S. 1953, 46-1-5, the divorce statute empowered the court in divorce actions to order support only for "minor children." In 1958, that statute was amended to authorize the court to provide for the support of "children dependent upon the parent or parents for support." And, in Wilkinson v. Wilkinson, 41 Colo. App. 364, 585 P.2d 599 (1978), we held that the word "minor" would not be read back into the statute. We further held that "in actions commenced under the 1958 divorce law, the court has the power to make such orders, if any, as the circumstances of the case warrant for the care and support of a child dependent upon his parent or parents even after he has reached his majority." Wilkinson, supra.
In 1971, the General Assembly enacted the Uniform Dissolution of Marriage Act, § 14-10-101 et seq., C.R.S. 1973 (the Act), in place of the former divorce statute. In its provisions for child support, the Act specifically did not limit support to "minor children." Section 14-10-115(1), C.R.S. 1973, specifies that "[i]n a proceeding for dissolution of marriage . . . the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for his support . . . ." (emphasis supplied). Further, § 14-10-122(3), C.R.S. 1973, provides that " [u]nless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child . . . ." (emphasis supplied). Also, pursuant to § 14-10-116, C.R.S. 1973, the court is authorized to "appoint an attorney to represent the interests of a minor or dependent child with respect to his custody, support, and visitation." (emphasis supplied).
We therefore hold that the Act gives the court jurisdiction to enter a decree for support of a dependent child of the marriage after attainment of majority. And where, as here, the adult child, subject to proof of her alleged incapacity, is still dependent on her parents, then the child is not emancipated under the Act and the duty of support continues. Wilkinson, supra.
Accordingly, the provision in the decree for the child's support, "until further order of court," did not terminate when she reached age 21, see Wilkinson, supra, § 14-10-122(3), C.R.S. 1973, and the court retains jurisdiction to order either or both parents to provide for her support. Section 14-10-115(1), C.R.S. 1973. So long as the child's dependency continues, the parents have a continuing duty of support.
The order is reversed, and the cause is remanded for further proceedings consistent with this opinion.
JUDGE KELLY concurs.
JUDGE TURSI dissents.