In Re the Marriage of Plummer
In Re the Marriage of Plummer
Opinion of the Court
Petitioner, John R. Plummer, seeks review of the court of appeals’ opinion which affirmed the trial court’s holding that the petitioner’s daughter, who had reached the age of majority and was enrolled in college, is not emancipated and therefore still entitled to receive support payments from her divorced father. In Re Marriage of Plummer, 703 P.2d 657 (Colo.App. 1985). We reverse.
I.
The parties were divorced in 1979 and permanent orders were entered in 1980. At the time of the entry of permanent
II.
Orders of child support payments are governed by the Uniform Dissolution of Marriage Act. §§ 14-10-101 to -133, 6 C.R.S. (1973 & 1986 Supp.) A trial court may order either or both parents to pay child support after considering a number of factors. § 14-10-115, 6 C.R.S. (1973). The general rule is that a child support award falls within the sound discretion of the trial court and will not be disturbed on appellate review, absent an abuse of discretion. Carlson v. Carlson, 178 Colo. 283, 288, 497 P.2d 1006, 1009 (1972).
The UDMA provides in pertinent part: “Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child_” § 14-10-122(3), 6 C.R.S. (1973) (emphasis added). “What constitutes emancipation is a question of law.” In re Marriage of Robinson, 629 P.2d 1069, 1072 (Colo. 1981). “Emancipation ordinarily occurs upon the attainment of majority,” Koltay, 667 P.2d at 1376, which is statutorily defined in Colorado as age twenty-one. § 2-4-401(6), 1B C.R.S. (1980). We have held that at age twenty-one, a presumption arises that a person has “the physical and mental capabilities to support himself....” Koltay, 667 P.2d at 1376. Accordingly, “[ujnder normal circumstances, parents have no legal obligation to support their children beyond the age of majority.” Id.
For purposes of the UDMA child support provisions, when a child reaches twenty-one a presumption of emancipation arises. The presumption is defeated when a child is physically or mentally incapable of self-support. We stated in Koltay that if a child is not physically or mentally capable of self-support, the child is not emancipated under the UDMA, and the duty of parental support continues for the duration of the disability. Id. Koltay affirmed the court of appeals’ holding that a trial court can order the continuation of child support payments under the UDMA for a disabled child who has reached twenty-one.
The trial court and court of appeals misapplied our holding in Koltay to the facts at bar. The trial court here held that a twenty-one-year-old child who is capable of supporting herself, but makes a voluntary choice to attend college after reaching
The court of appeals erred in applying the following two subsections of the UDMA:
Child support. (1) In 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, without regard to marital misconduct, after considering all relevant factors including:
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(c) The standard of living the child would have enjoyed had the marriage not been dissolved;
(d) The physical and emotional condition of the child and his educational needs....
§ 14-10-115(1)(c), (d), 6 C.R.S. (1973). While these factors must be applied in determining child support in an order entered prior to emancipation, they are not determinative in a case such as this where the child has reached the age of majority and does not fall under the Koltay disability exception.
The respondent asks us to apply Childers v. Childers, 89 Wash.2d 592, 575 P.2d 201 (1978), in which the Washington Supreme Court held that under some circumstances a divorced parent may be required to support a child who is in pursuit of higher education past the age of majority. We decline to adopt this line of reasoning, and limit Koltay as set out above.
Accordingly, we reverse.
. We recognize that the parties may agree to post-emancipation support, or that a court may require such support in proper circumstances by express provisions in a decree. § 14-10-122(3), 6 C.R.S. (1973). See Unif. Marriage and Divorce Act § 316 Commissioners’ Note to subsection (c), 9A U.L.A. 184-85 (1979). Cf. Koltay v. Koltay, 667 P.2d 1374, 1376-77 (Colo. 1983) (Uniform Dissolution of Marriage Act does not limit support to minor children).
Dissenting Opinion
dissenting:
I respectfully dissent.
The Uniform Dissolution of Marriage Act (UDMA), §§ 14-10-101 to -133, 6 C.R.S. (1973 & 1986 Supp.), provides that the court may order support payments by either or both parents based on, among other factors,
(c) The standard of living a child would have enjoyed had the marriage not been dissolved;
(d) The physical and emotional condition of the child and his educational needs....
§ 14-10-115(1)(c) and (d), 6 C.R.S. (1973) (emphasis added). This court held in Koltay v. Koltay, 667 P.2d 1374 (Colo. 1983), that the general assembly has recognized the propriety of a claim for post-minority support in a dissolution of marriage action
As the majority notes, we described emancipation as a question of law in In re Marriage of Robinson, 629 P.2d 1069, 1072 (Colo. 1981). But Robinson continued, “Whether emancipation has been established must be determined in light of all the relevant facts and circumstances of the case.” Id. at 1072-1073. The district court in this case found that Karen Plummer was not emancipated because she remained dependent upon her parents for support while attending college. The court also found that Karen had a reasonable expectation that she would attend college and that her parents would support her until she obtained her undergraduate degree. In the Plummer family, according to the court’s findings, there was an atmosphere in which it was anticipated and expected that the children would go to college and would be supported while they did so. The court then ordered the father to pay support of $200 per month for Karen Plummer until she either received her undergraduate degree or was emancipated due to other circumstances.
The general rule is that a child support award is within the sound discretion of the trial court and will not be disturbed on appellate review absent an abuse of discretion. Carlson v. Carlson, 178 Colo. 283, 288, 497 P.2d 1006, 1009 (1972). As the court of appeals determined, there is abundant evidence in the record supporting the district court’s order, and I would affirm the judgment of the court of appeals and the district court.
Reference
- Full Case Name
- In Re the MARRIAGE OF John R. PLUMMER, Petitioner, and Leavelle Plummer, Respondent
- Cited By
- 17 cases
- Status
- Published