Opinion
No. WD 56274.
Opinion Filed: October 26, 1999.
Appeal From The Circuit Court Of Vernon County, The Honorable Gerald D. McBeth, Judge.
Nicholas L. Swischer, Nevada, for Appellant.
James R. Bickel, Nevada, for Respondent.
Before Ulrich, P.J., Smith, J. and Howard, J.
Noel Smith (Father) appeals the judgment of the trial court awarding Debra Smith (Mother) $2550 and ordering Father to hold Mother harmless for one-half of medical expenses totaling $20,601.53 incurred by one child after January 1, 1997. Father also appeals the judgment of the trial court denying his claim against Mother for reimbursement of child support paid after the parties' two children were emancipated. The judgment of the trial court is reversed, and the case is remanded with directions.
Father and Mother were divorced in April 1981. Mother was awarded custody of the parties' two minor children, Jennifer Smith and Rebekah Smith, and Father was ordered to pay $50 per month per child as child support. Eventually, Father's monthly child support obligation increased to $150 per child.
In August 1996, the parties' younger daughter, Rebekah, then sixteen years old, moved out of Mother's home and began a relationship with a married man. In September 1996, after completing one year of college, Jennifer, the parties' older daughter, moved in with her forty-seven year old boyfriend. In January, Mother sent a letter to the clerk of the circuit court indicating that both Jennifer and Rebekah were emancipated as of January 1, 1997, and that child support from Father would no longer be required. Thereafter, Father discontinued his child support payments.
That summer, Mother hospitalized Rebekah in a drug rehabilitation program for approximately one month incurring over $25,000 in medical bills. After Rebekah was released from the hospital, she returned to Mother's home until May 1998. Because Rebekah had returned home, Mother filed a motion to reinstate child support in September 1997. In the motion, Mother requested the court to reinstate the child support order and order Father to pay a portion of Rebekah's medical expenses incurred that summer. In response, Father filed a crossclaim requesting reimbursement of child support paid from September through December 1996 after the children were emancipated.
Following a hearing on Mother's motion and Father's crossclaim, the trial court entered its judgment awarding Mother $2550 and ordering Father to hold Mother harmless for one-half of Rebekah's medical expenses totaling $20,601.53. The court denied all other relief requested by the parties. This appeal by Father followed.
Review of a court-tried case is governed by Murphy v. Carron , 536 S.W.2d 30 (Mo.banc 1976). Thus, the judgment of the trial court will be affirmed on appeal unless no substantial evidence supports it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. at 32.
I.
In his first point on appeal, Father claims that the trial court erred in ordering him to hold Mother harmless for one-half of medical expenses totaling $20,601.53 incurred by Rebekah after January 1, 1997, based on a common law duty to support the child. He contends that any common law duty to support the child ended upon her emancipation.
Chapter 452 of the Missouri Revised Statutes governs a parent's duty to support the parent's child. The purpose of the chapter is to provide a procedure for obtaining maintenance for the child and for determining in advance the extent of the common law obligation of the parents and the means of enforcing it against them. Gardine v. Cottey , 360 Mo. 681, 230 S.W.2d 731, 750 (Mo.banc 1950); Davis v. Sullivan , 762 S.W.2d 495, 498 (Mo.App.W.D. 1988). A judgment for child support granted pursuant to Chapter 452 is substituted for the common law liability for support that would otherwise exist. Lodahl v. Papenberg , 277 S.W.2d 548, 551 (Mo. 1955); Gardine , 230 S.W.2d at 750; Davis , 762 S.W.2d at 498 . A custodial parent, therefore, has a common law right to recover from the noncustodial parent the necessary and reasonable support and maintenance furnished by the custodial parent for a child only where a custody decree is silent as to child support or where a child support judgment has become ineffective. In re Marriage of D.M.S. , 648 S.W.2d 609, 615 (Mo.App.W.D. 1983); Pourney v. Seabaugh , 604 S.W.2d 646, 650 (Mo.App.E.D. 1980). The statutory child support provision invoked by a proceeding in dissolution of marriage, or subsequent motion, is for future support, and the independent common law action is for expenses already incurred. Lodahl , 277 S.W.2d at 551 . The two remedies, statutory and common law, are coterminous and not concurrent, one beginning where the other ends. Id. Use of the appropriate remedy is determined by the facts. Id.
Section 452.370.4 provides that a parent's duty to support the parent's child is "terminated by emancipation of the child." § 452.370.4. Emancipation is the "freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent's legal obligation to support it." Ragan v. Ragan , 931 S.W.2d 888, 890 (Mo.App.S.D. 1996) (quoting In re Marriage of Hughes , 773 S.W.2d 897, 899 (Mo.App.S.D. 1989)). "The purpose of this statutory provision is to 'make it absolute' that unless there are contrary provisions in the dissolution decree or the separation agreement, the child support obligation ends upon the child's emancipation and does not automatically continue during the child's minority." Ragan , 931 S.W.2d at 890 .
All statutory references are to RSMo 1994 unless otherwise indicated.
In this case, an effective child support judgment entered pursuant to Chapter 452 existed. The trial court found that Jennifer was emancipated in September 1996 and that Rebekah was emancipated in August 1996. Neither party disputes the validity of the findings of emancipation. The court's findings of emancipation under section 452.370.4 terminated Father's duty to support Jennifer and Rebekah "for all the period of [their] minority." Ragan , 931 S.W.2d at 890 . The existence of the judgment finding that the parties' daughters were emancipated extinguished Mother's common law action for the daughters' necessaries. The trial court, therefore, erred in its application of the law in ordering Father to hold Mother harmless for one-half of Rebekah's medical expenses incurred after her emancipation.
II.
In his second point on appeal, Father claims that the trial court erred in awarding Mother $2550, the amount representing the income tax deduction Father took for Jennifer in 1997 on his 1996 federal income tax return. Evidence presented at trial revealed that because Father's income was less than Mother's, Mother and Father agreed that Father would claim Jennifer as a dependant on his 1996 federal tax return so that Jennifer would qualify for a larger student loan. Mother also claimed at trial that Father agreed to pay off the student loan for Jennifer's 1997-1998 school year in return for taking the tax deduction. Father denied making such an agreement. The trial court found that Father was unjustly enriched in 1997 by $2550, "the amount of the tax deduction which he received which he was otherwise not entitled to and for which he gave up nothing."
Mother's claim that Father owes her financial compensation because Father was unjustly enriched by taking a deduction for Jennifer as a dependant child on his 1996 federal income tax return was not pleaded in Mother's "Motion to Reinstate Child Support." The theory of recovery asserted by Mother is not well defined and mixes theories of recovery. The apparent underlying justification for Mother's claimed entitlement for such compensation from Father is that Father owes Mother child support. Breach of contract or the provision of section 452.340.5 requiring the noncustodial parent to provide contributions as child support are the only bases for such claim. Mother did not plead breach of contract in her "Motion to Reinstate Child Support." Neither did Mother plead the provision of section 452.340.5 that compels a noncustodial parent to contribute child support to a child eighteen years old or older who is attending school. The trial court's award was based in equity.
At trial, Mother claimed that Father breached his agreement to pay off Jennifer's student loan in exchange for claiming her on his 1996 federal tax return. Thus, though not pleaded, Mother attempted to assert in equity Father's breach of contract. Breach of contract is a legal issue and not a matter in equity. Absent a contractual obligation to assist his daughter, Father's only legal obligation to support his daughter is statutory. Section 452.340.5 obligates a non-custodial parent to support a child eighteen years or older, but not yet 23 years old, who is enrolled in a course of education in October following the date of the child's eighteenth birthday. § 452.340.5. If the child has been emancipated before the child's eighteenth birthday, however, nothing in the statute specifically alters the emancipated status of the child and reestablishes the child's dependant status and the duty of the parent to support the child.
Section 452.370.4 provides that a parent's duty to support the parent's child is "terminated by the emancipation of the child." § 452.370.4. The purpose of the emancipation statute is to absolutely end the child support obligation upon the child's emancipation unless a contrary provision in the dissolution or separation agreement exists. Ragan, 931 S.W.2d at 890 . The issues of emancipation and child support are determined under the statute. A trial court cannot reinstate the child's status as an unemancipated minor as a purely equitable issue. The trial court, therefore, erred in invoking equity to award $2550 to Mother for child support after Jennifer's emancipation.
III.
In Father's last point on appeal, he claims that the trial court erred in denying his claim against Mother for reimbursement of $1200 for child support paid after the two children were emancipated. Father contends that under section 452.370.4, Mother's failure to immediately notify him of the children's emancipation compels Mother's liability for the overpayment.
Section 452.370.4 provides:
Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child. The parent entitled to receive child support shall have the duty to notify the parent obligated to pay support of the child's emancipation and failing to do so, the parent entitled to receive child support shall be liable to the parent obligated to pay support for child paid following emancipation of a minor child, plus interest.
§ 452.370.4. The use of the word "shall" in section 452.370.4 indicates a mandatory duty of the custodial parent to notify the noncustodial parent when a child may be emancipated. Wyrick v. Coles , 834 S.W.2d 910, 913 (Mo.App.W.D. 1992); Blackmun v. Blackmun , 767 S.W.2d 54, 61 (Mo.App.W.D. 1989). Where a custodial parent fails to give the required notice, the parent is responsible for child support paid subsequent to the actual date of emancipation as found by the trial court. Wyrick , 834 S.W.2d at 913 .
In this case, the record reveals that Rebekah moved out of Mother's house, was no longer dependent on Mother, and began a conjugal relationship with a man in August 1996. In September 1997, her sister, Jennifer, moved from Mother's home and moved in with her forty-seven year old boyfriend. Jennifer, too, was no longer dependent upon Mother. In January 1997, Mother notified the clerk of the circuit court that the children were emancipated and that child support from Father was no longer required. Nothing in the record indicates that Mother notified Father in the fall of 1996 that the children had moved from her home, were no longer dependent on Mother, and may be emancipated. Father paid child support in the amount of $150 per child per month (for a total of $1350) between August 1996 and January 1997. Mother returned $150 to Father during this time.
The trial court found that Rebekah was emancipated in August 1996 and that Jennifer was emancipated in September 1996. The court also found that the child support paid by Father in the fall of 1996 was either refunded to him or "passed on to the children as gifts from Dad." The court concluded, "In light of the large expenses [Mother] has under taken voluntarily on behalf of the children it would be unjust and inappropriate for a court of equity to order reimbursement." Under a correct application of the law, however, Mother is liable to Father for child support paid to her following emancipation of Rebekah and Jennifer despite Mother's voluntary assumption of large debts in behalf of her emancipated daughter where Mother failed to notify Father of the children's emancipation. Although the evidence revealed that Mother gave some of the money paid by Father for child support to her daughters after they moved out, no evidence was presented that Mother notified Father of the children's emancipation before January 1997 or that Father consented to the Mother's giving the children his child support payments. The trial court erred, therefore, in denying Father's claim against Mother for reimbursement of $1200 for child support paid after the two children were emancipated.
The judgment of the trial court is reversed, and the case is remanded to the trial court for entry of a judgment in favor of Father for $1200 for reimbursement of child support paid after the emancipation of Rebekah and Jennifer.
All concur.