Red v. Red

POPE, Justice,

dissenting.

The dissenting opinion filed March 9, 1977, is withdrawn and this opinion is substituted.

What did the legislature want to accomplish by enacting article 14.05(b) which authorized continued parental support for a child over eighteen who suffers from a mental or physical disability? That is our question. The facts are few and simple. On May 29, 1963, Alice and George Red were divorced. Their daughter, Diana, was at the time, fourteen years old. Diana was then and has been since, physically and mentally handicapped. The divorce decree ordered that Mr. Red pay two hundred dollars per month for child support “beginning July 1,1963, until the said Diana Red reaches the age of eighteen (18) years.” Diana became eighteen on July 9, 1966. Mr. Red continued to support Diana until she reached twenty-five. When he stopped his payments, this suit was filed seeking support under article 14.05(b) of the Family Code. The trial court and the court of civil appeals have ruled that the divorce court exhausted its jurisdiction when Diana reached eighteen. 536 S.W.2d 431 . In my opinion, that result thwarts a long history of a contrary legislative intent.

The History of Child Support Statutes

Prior to 1935, there was no statute which authorized the divorce court to provide for child support orders as a part of a divorce decree. The court, however, recognized the parent’s duty of support and devised their own procedure for providing it. It was in this context that the courts from a very early period held that child support was a factor that judges should consider in dividing the estate of the parties. The courts also created the device of placing property in trust as a means to afford child support from the revenues. Hedtke v. Hedtke, 112 Tex. 404 , 248 S.W. 21 (1923); Rice v. Rice, 21 Tex. 58 (1858); Fitts v. Fitts, 14 Tex. 443 (1855).

In 1935, the legislature for the first time authorized divorce courts to inquire into the financial circumstances of the family and to order child support in the decree. Tex. Laws 1935, ch. 39, § 1 at 111. The legislation was codified as article 4639a. In 1953, the statute was amended to extend the support period from age sixteen to age eighteen. Tex.Laws 1953, ch. 127, § 1, at 439.

In 1961, the legislature again expressed its special concern for physically or mentally unsound children. Tex.Laws 1961, ch. 31, § 1, at 135. The law was codified as article 4639a-1 and became effective on November 6, 1961. It provided that divorce courts could order support for such a child “ whether a minor or not, subject to the power and authority of the Court to alter, change, suspend or otherwise revise its judgments as the facts and circumstances may require . . .” (emphasis added). *96 For the first time, the legislature authorized divorce courts to make provision, not only for minors up to a stated age, but for “continued” support beyond majority and “whether a minor or not.”

While article 4639a-1 was in force, the case of Tharp v. Tharp, 438 S.W.2d 391 (Tex.Civ.App.1969, writ dism’d) arose. The sequence of events in Tharp parallel the facts of the present case. The Tharps were divorced on June 17, 1960. At that time article 4639a-1 had not been enacted, the decree, consequently, made no provision for support of Peter Tharp, an incompetent child. In 1961 when Peter was thirteen years old, that statute became effective. The father made his support payments under the court order until Peter reached eighteen and then he stopped. There was no order by the trial court that payments should be continued after Peter reached eighteen. This is the same thing that has happened in the case of Mr. Red. Three months after Peter reached age eighteen, his mother returned to the trial court seeking an order for continued support for her incompetent child. The reasoning in Tharp for imposing upon the father the duty of continuing support for his disabled child is:

Here the statute became effective in 1961, but Peter Tharp did not reach 18 until 1966. Also, the disability and required custodial care is shown to have existed continuously since about 1952, and appellant knew it. This disability did not originate after the child became 18 years of age, and we do not believe the trial court lost jurisdiction of the case when Peter Tharp became 18. The statute itself provides that the court may require and enforce support payments for such disabled child “whether a minor or not.”

We do not believe the Legislature intended that Art. 4639a-l receive a restrictive and technical application. On the other hand the statute should receive a liberal interpretation to insure that its just purpose is effective and meaningful. We need not labor the question. We hold that the statute, under the facts of this case, is applicable and fully effective to require that appellant continue support of his unmarried, physically and mentally unsound child, requiring custodial care, and who cannot adequately take care of or provide for himself and who is without property or income sufficient to provide for his reasonable and necessary care. At 394-395.

A like holding is found in McGowen v. McGowen, 273 S.W.2d 658 (Tex.Civ.App. 1954, writ dism’d). A divorce decree ordered the support of a child until she reached sixteen. Before she reached sixteen, the legislature amended article 4639a by authorizing support up to age eighteen rather than sixteen. After the child reached sixteen, a motion was filed to compel support up to age eighteen. The court ruled that the duty of support came into existence by statute before the child reached sixteen and granted the relief. See also Du Pre v. Du Pre, 271 S.W.2d 829 (Tex.Civ.App.1954, no writ).

It is acknowledged that Mr. Red was under the duty to support Diana under the provisions of article 4639a-1 and the precedents which construed that statute. The holding, however, of the majority is that the legislature intended by the enactment of section 14.05 of the Family Code, effective January 1,1974, to repeal the duty and to set aside Tharp v. Tharp and similar cases.

The Family Code Carried Forward the Duty To Support Incompetent Children

The majority has found on the face of section 14.05 1 an intent on the part of the *97 legislature to change the meaning of the continuing duty spelled out by article 4639a-1. 2 The difference, notes the majority, is that article 4639a-1 imposed the duty of support for an incompetent child “whether a minor or not,” whereas section 14.05 of the Family Code omitted those words. Indeed, the Code omits those words but imposes the same duty by stating that support may continue “after the 18th birthday” and “for an indefinite period” thereafter. With respect, I suggest that the meaning of the words is the same. It is the heavy burden of the majority to show that support required both before age eighteen and after eighteen for an indefinite time means something different from “whether a minor or not.” The Family Code made two other changes in the prior law showing that the legislature intended to relax the conditions to the award of support by the earlier statute. The Family Code eliminated the requirement in article 4639a-1 for “custodial care,” by substituting an express provision for entitlement to support after eighteen “whether institutionalized or not.” The Family Code eliminated the other requirement that the court must act only upon “full and satisfactory evidence.”

One must look hard in the face of these facts to find any legislative intent for the majority’s strict construction and retrenchment from the direction of the earlier law. In fact, one must ignore section 3.01 of article 5429b-2 which was the rule of construction intended by the Code Construction Act at the time the Family Code was enacted. That section says:

in enacting a statute, it is presumed that:

(3) a just and reasonable result is intended;

(4) a result feasible of execution is intended; and

(5) public interest is favored over any private interest.

The majority construes the word “child” as used in section 14.05 to mean a person less than eighteen. This construction raises more problems than it solves. The holding is inconsistent with the meaning of “child” as used in section 12.04 which says that “the parent of a child has the following rights, privileges, duties and powers: (9) the right to inherit from and through the child ..” The majority’s construction would deny the right to inherit from one who is more than eighteen. Section 13.21 concerns voluntary legitimation. It begins:

(a) If a statement of paternity has been executed by the father of an illegitimate child, the father or mother of the child . may file a petition for a decree designating the father as a parent of the child.

The majority to be consistent would say a person beyond eighteen is not a child and the legislature having used the word “child” did not intend to afford legitimation procedures for one who is beyond eighteen. Section 14.08 of the Family Code authorizes modification of orders concerning a child. Under the majority view, even if the court had ordered Diana’s support as an incompetent before she reached age eighteen, the court could not have modified that order *98 after age eighteen because she was no longer a “child.” The court has extracted a narrow meaning from the word that the legislature nowhere indicates it intended.

The majority’s construction of article 14.-05 is troublesome in other ways. The majority holds that parents must hurry to the divorce court before a child reaches age eighteen because, absent an order before that age, there is nothing to continue. Children must develop their mental or physical disability before eighteen because if they unfortunately develop the handicap at age nineteen, they do not qualify for help. If a parent amicably agrees to support a child until the child reaches age eighteen, as Mr. Red did, and there is no prior support order which may be continued, the parent supplying the support may stop and the court is left powerless to require future payments.

The majority opinion suggests that Diana has a remedy through section 423, Probate Code. The argument begs the question and is indeed a harsh construction for the denial of relief under the Family Code. Section 423 authorizes repeated suits for debt against a parent who has refused to reimburse the state for its expenses in providing institutional care for an incompetent child. State v. Stone, 271 S.W.2d 741 (Tex.Civ.App.1954, no writ).

The Trial Court Had Jurisdiction to Order Support For an Over-Eighteen-Year-Old Child Who Was Incompetent

The majority says that section (b) of article 14.05 could not become operative without a prior order for support under section (a), that without an order of a court prior to a child’s reaching eighteen there can be none thereafter. I find nothing in section 14.05 which makes the duty in section (b) conditioned upon a prior order under section (a).

Support for Diana is now denied because the judgment which provided support under article 14.05(a) has become final, according to the court’s opinion. She would have been better off if her father had not voluntarily provided her support. There was no reason to litigate what the father acknowledged was his duty, so time passed until Diana became eighteen and was still incompetent. One does not lose his statutory rights merely because they are not asserted in limine in the divorce action. In Slattery v. Hatmaker, 255 S.W.2d 334 (Tex.Civ.App. 1953, no writ), a divorce was granted in which no mention was made of a child. Judge Norvell writing:

Appellant contends that the trial court was without authority to order him to pay child support money, in that such order was in the nature of an attempt to amend the original decree of divorce which had theretofore become final.

******

However, this Court has held that the fact that the original divorce decree failed to award support money did not deprive the court of authority to thereafter do so. Tipton v. Lester, Tex.Civ.App., 178 S.W.2d 580 , following Townsend v. Townsend, Tex.Civ.App., 115 S.W.2d 769 .

The judgment concerning support was not final after Diana reached eighteen. The majority cites three cases for its holding that the divorce decree was final. Ex parte Williams, 420 S.W.2d 135 (Tex.1967), and McCullough v. McCullough, 483 S.W.2d 869 (Tex.Civ.App.1972, no writ), concerned normal children and of course there was no duty to support after age eighteen and the judgments were final. Ex parte Hatch, 410 S.W.2d 773 (Tex.1967), however, is precedent against the majority statement of the rule. I respectfully state that the majority opinion takes quotations out of context and omits the following controlling facts: The divorce in that case was granted on October 28, 1958. It ordered support for two children, one of whom was incompetent. At that time article 4639a-1 providing for support for incompetent children over eighteen had not been enacted. Quoting the relevant facts from the opinion itself, “At the date of divorce Carna Mary was 16 years old. At the date Article 4639a-1 became effective she was 19 years old.” (emphasis added).

*99 The incompetent child, in Hatch, was already more than eighteen years old when the statute requiring support for an over-eighteen incompetent child first became effective. The quotations in the majority opinion take on a different meaning in this factual context. The supreme court considered these facts important enough to mention them four times saying:

The question presented is whether the statute (art. 4639a-1) applies to an attempted modification of a prior divorce decree where the child in question was already 18 or more years of age at the time the statute became effective. . These cases do not hold that a child support order may be modified and thereafter enforced by contempt when the court has lost continuing jurisdiction thereof before enactment of the statute (article 4639a-l). . . .We therefore hold that Article 4639a-1 does not confer jurisdiction upon the trial court to modify support orders to conform to its provisions, and require and enforce support payments for children requiring custodial care who were already 18 years of age when the statute became effective. . The Court of Civil Appeals held that the trial court had jurisdiction of the subject matter of the motion, under the provisions of Article 4639a-1, without mentioning the fact that the child in question must have been at least 18 years of age when the statute became effective on November 6, 1961. (emphasis added).

The holding in Hatch was that a parent could not enforce by contempt a failure to provide support for an incompetent child who was more than eighteen years old before the effective date of article 4639a-1 which for the first time established such a duty. The court made this clear by disapproving Cuellar v. Cuellar, 406 S.W.2d 510 (Tex.Civ.App.1966, no writ), which was a case in which the child was already nineteen when the statute became effective.

In Hatch and Cuellar , there was no statutory duty in being when the child reached age eighteen. The application of article 4639a-l required a retroactive application of a duty which did not exist when the child reached eighteen. In this case, article 4639a-1 was already effective in 1963 at the time of the divorce. Diana Red was then fourteen years old. The statutory duty existed before age eighteen and continued thereafter. There has never been any contention that the duty of support under either article 4639a-1 or the Family Code had to be retroactively applied. In re Hatch has been misread and misapplied,

I would reverse the judgments of the courts below which dismissed this cause for want of jurisdiction, order the cause reinstated upon the docket of the trial court, and remand it for trial.

STEAKLEY, McGEE and YARBROUGH, JJ., join in this dissent.

. § 14.05. Support of Child

(a) The court may order either or both parents to make periodic payments or a lump-sum payment, or both, for the support of the child until he is 18 years of age in the manner and to the persons specified by the court in the decree. In addition, the court may order a parent obligated to support a child to set aside property to be administered for the support of the child in the manner and by the persons specified by the court in the decree.

*97 (b) If the court finds that the child, whether institutionalized or not, requires continuous care and personal supervision because of a mental or physical disability and will not be able to support himself, the court may order that payments for the support of the child shall be continued after the 18th birthday and extended for an indefinite period.

. Art. 4639a-l. Children Requiring Custodial Care

In addition to all other requirements, each petition for divorce shall further set out, if such is a fact, that (1) an unmarried child, bom of the marriage sought to be dissolved, is physically or mentally unsound and requires custodial care, and (2) that such child cannot adequately take care of or provide for himself, and (3) that such child has no personal estate or income sufficient to provide for his reasonable and necessary care. If the Court shall find all of such has been proven by full and satisfactory evidence the Court may require and enforce support payments for such child, whether a minor or not, subject to the power and authority of the Court to alter, change, suspend, or otherwise revise its judgments as the facts and circumstances may require and in the manner required by law.