UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 1, No.1FALL 1977
COMMENTS
Post-Majority Child Support in Washington
George T. Cowan
Since 1597, when England first imposed criminal penalties for nonsupport of legitimate children,(fn1) the law of child support has undergone a metamorphosis. From this modest beginning child support law evolved, eventually imposing civil penalties for nonsupport,(fn2) and finally recognizing that this obligation exists regardless of a child's legitimacy.(fn3) The current thrust of its growth extends this duty to children beyond that mystical age of majority.(fn4) The Washington Supreme Court presently is considering the appeal of Childers v. Childers,(fn5) which questions whether Washington courts may order post-majority support under the Washington Dissolution of Marriage Act.(fn6) The court's resolution of that question will determine whether the law of child support emerges from its cocoon a moth or a butterfly.
To appreciate fully the question posed in Childers, one must grasp the function and purpose of child support. Simply stated, the purpose of child support is to provide necessary elements of support to those typically incapable of self-support.(fn7) The definition of "necessary elements" constantly changes to meet the demands of an increasingly complex society. And although child support is limited to necessities, what is necessary also depends upon the social status and financial resources of the parents and is not limited to bare essentials unless those criteria so dictate.(fn8) Accordingly, courts retain continuing jurisdiction to modify support decrees as the ability of the parents to provide support and the needs of the children change.(fn9) In light of the purpose of child support, this comment explores the extent to which Washington courts may order post-majority child support and the sources of their authority to do so.
Washington courts potentially derive authority to order post-majority child support from three sources: Washington's common law, which permits post-majority support under limited circumstances;(fn10) the state's Dissolution of Marriage Act, which may or may not permit orders for post-majority support, depending upon the state supreme court's disposition of the Childers appeal;(fn11) and the state's Uniform Parentage Act,(fn12) yet to be construed by the state's high court. Each of these three will be considered in turn to determine whether their application fulfills the purpose of child support and, with regard to the statutory sources, the purpose of the legislation.(fn13)
Under Washington's common law, the state's courts recognized a limited parental obligation of post-majority child support; the general rule terminating child support when children attained majority(fn14) bore only two exceptions. First, the courts could order support for mentally or physically handicapped children beyond their minority.(fn15) Consistent with the purpose of child support, this exception permitted the state's courts to order continuing support for those children incapable of self-support. Although support for a handicapped child continued as long as the child's need,(fn16) such a support order must have been entered during the child's minority;(fn17) the state's common law imposed no parental obligation to support children becoming handicapped after attaining majority.(fn18)
The common law's second exception permitted Washington courts to incorporate extrajudical post-majority support agreements into divorce decrees.(fn19) The Divorce Act of 1949,(fn20) however, eliminated the courts' jurisdiction to enforce such agreements in an action on the divorce decree once the child attained majority,(fn21) relegating the child to a separate action for contractual remedies.(fn22) Thus, the state's common law authorized post-majority support orders (1) for handicapped children, and (2) for normal children, but only in divorce actions when their parents had agreed to provide such support.(fn23)
The state legislature enacted the courts' second potential source of authority for post-majority support orders, the Dissolution of Marriage Act, in 1973, repealing the Divorce Act of 1949. Whereas the Divorce Act of 1949 had authorized courts awarding divorces to "make provision for . . . the custody, support and education of the minor children of such marriage,"(fn24) thus expressly limiting child support to minority, the Dissolution Act authorizes courts entering decrees of dissolution to order support for "any child of the marriage entitled to support,"(fn25) from "parents owing a duty of support to any child of the marriage dependent upon either or both spouses."(fn26) Washington appellate courts, construing the Dissolution Act's support provisions, have reached conflicting conclusions regarding authority for court ordered post-majority support.(fn27)
Division Three of the Washington Court of Appeals, in In re Marriage of Melville,(fn28) upheld a child support order for "$100 per month per child until such time as each child reaches the age of 18, or was sooner emancipated, or until the age of 21 if the child was regularly enrolled in school."(fn29) In one brief paragraph, containing little more than a recitation of the relevant portion of the Dissolution Act's section 170, the court determined that the act "specifically confers upon a dissolution court jurisdiction to direct a parent to provide for the support and education of a child after it attains majority."(fn30) Without supporting analysis, Division Three concluded that the Dissolution Act authorized awards of post-majority support.
Two years later, in Childers v. Childers, Division One of the Washington Court of Appeals reversed a post-majority child support award "of $150 per month to each of his three sons until each son ceases to be enrolled in an accredited school. . ., and ceases to be otherwise dependent upon the parties."(fn31) Citing section 100 of the Dissolution Act, the court found two requirements for imposition of a child support order: "(1) the parent to be subject to the order must owe the child a duty of support, and (2) the child must be dependent upon the parent."(fn32) Assuming the second requirement fulfilled,(fn33) the court began its "analysis" of the first. Citing cases decided prior to and under the Divorce Act of 1949, the court concluded that parents owe a duty of support only to minor children, the only exception being the continuing obligation to support handicapped children.
The obvious fallacy in the Childers court's analysis is twofold. First, the court misused the state's common law. Finding that courts could order support only from parents owing a duty of support, the court correctly resorted to cases decided under the common law and the Divorce Act of 1949 to define this class of parents. The court determined that parents, at common law, owed a duty of support only to their minor children. Then, instead of concluding that courts could order support only from this class of parents, the court permitted the common law's temporal constraint to dictate the parameters of court ordered support under the new act; it concluded not only that courts could order support only from parents owing a common law duty of support, but also that courts could order support only to the extent of that common law duty.
The court's misuse of the common law highlights its second error: its misplaced reliance on the Dissolution Act's section 100. The purpose of section 100, entitled Child support-Apportionment of expense, is to allocate the burden of child support between the child's parents. The Dissolution Act's section 170,(fn34) in part entitled "Termination of. . . child support," determines the period during which the court-imposed obligation is owing. Thus the court assumed the answer it sought, relying on prior sources of authority without determining whether the new act modified the terms of those prior sources.
Further, in response to an assertion of the Melville decision as precedential authority for post-majority support awards, the court declared that Melville was wrongly decided: "If section 170 should be so construed the privileges and immunities provision of article 1 of our state constitution and the equal protection clause of the Fourteenth Amendment would be violated."(fn35) The Childers court determined that these constitutional provisions impose two requirements on any statutory classification: "(1) [t]he legislation must apply alike to all persons within the designated class, and (2) reasonable ground must exist for making a distinction between those who fall within the class and those who do not."(fn36) Finding the first requirement met, the court determined the second was not, concluding "[t]here is no reasonable ground to make a distinction between adult children of divorced parents and adult children of married parents."(fn37) While the court concluded from its equal protection analysis that section 170, upon which Melville had relied, could not be construed to permit post-majority support orders, this comment's ensuing treatment of the issue(fn38) shows that the court's analysis was demonstrably superficial. Thus with a modicum of effort (and analysis), the Washington Court of Appeals divided on whether the Dissolution Act authorizes post-majority child support awards.
The state legislature enacted the third potential source of authority for post-majority...
