GANSCHOW v. GANSCHOW

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Court of Appeal, First District, Division 1, California.

Marie D. GANSCHOW, Plaintiff and Respondent, v. Martin E. GANSCHOW, Defendant and Appellant.

Civ. 32422.

Decided: October 01, 1974

N. Perry Moerdyke, Jr., by Fred W. Armstrong, Palo Alto, for appellant. Richard M. McGowen, Los Altos, for respondent.

The question presented is whether a parent is denied the equal protection of the law when he must support a child until he or she reaches the age of 21 years pursuant to a divorce decree rendered when the age of majority was 21 years in view of the statutory change of the age of majority to 18 years.

The child in the instant case became 18 years of age prior to March 4, 1972, the effective date of the statute which changed the age of majority from 21 to 18. (Stats. 1971, ch. 1748.) Section 73 of said statutes, in pertinent part, provided: ‘In any order or direction of a court entered before the operative date of this act, except orders or directions of a court affecting child support, and in the absence of any indication of an intention to the contrary, a reference to the age of majority or the age of 19 years of age, 20 years of age, or 21 years of age shall be deemed to be a reference to 18 years of age. . . . [¶] In any order or direction of court affecting child support entered prior to the effective date of this act, a reference to minority shall be deemed a reference to the age of 21 years.’

Section 73 remained in effect only 24 days. It was repealed, effective March 28, 1972, by chapter 38 of the Statutes of 1972. In the statement of urgency it was stated as follows: ‘It has come to the attention of the Legislature since passage of A.B. 2887 (now Chapter 1748 of the Statutes of 1971) that there were and are thousands of court orders outstanding in this state referring to ‘age of majority’ or to the ages of 19, 20, or 21. It is now apparent that great confusion will be caused within the judicial system and among California citizens unless it is made clear that all outstanding court orders remain unamended and unaffected by Chapter 1748 of the Statutes of 1971 and to further make clear that these court orders may be amended to reflect the new age of majority where such amendment is proper in the discretion of the courts under California law or by the terms of the outstanding court orders. . . .'

Section 4 of said urgency measure (Stats. 1972, ch. 38), effective March 28, 1972, provides: ‘The Legislature intends that any use of or reference to the words ‘age of majority,’ ‘age of minority,’ ‘adult,’ ‘minor,’ or words of similar intent in any instrument, order, transfer, or governmental communication whatsoever made in this state: [¶](a) Before the effective date of Chapter 1748 of the Statutes of 1971, shall make reference to persons older or younger than 21 years of age, and [¶](b) On or after the effective date of Chapter 1748 of the Statutes of 1971, shall make reference to persons older or younger than 18 years of age. [¶] Nothing contained herein or in Chapter 1748 of the Statutes of 1971 shall prevent the amendment of any court order, will, trust, contract, transfer, or instrument to refer to the new 18-year-old age of majority where such court order, will, trust, contract, transfer, or instrument is: [¶](1) In existence on the effective date of Chapter 1748 of the Statutes of 1971; and [¶](2) Subject to amendment by law and where amendment is allowable or not prohibited by the terms thereof; and [¶](3) Otherwise subject to the laws of this state.'

The provisions of section 4 of chapter 38 of the Statutes of 1972 were added to the Civil Code (§ 25.1) by chapter 278 of the Statutes of 1973, effective January 1, 1974.1

In the present case the husband had been ordered by an interlocutory judgment of divorce entered on January 23, 1967, to pay $100 per month per child for children's support to continue until their respective majorities unless sooner married or self-supporting. When the child Deborah attained 18 years of age the husband ceased making support payments for her. The order herein appealed from, made on July 17, 1972, pursuant to an order to show cause why he should not continue to make such payments, modified the decree to provide for support for Deborah in the sum of $100 per month, commencing September 1972 and continuing through and including May 1973 provided she remained in college during said period.

Adverting to the equal protection issue we first observe that Civil Code section 2422 imposes the duty upon every man to support his child. Prior to March 4, 1972, subdivision (d) of section 241 provided, in relevant part, that “Child' means a son or daughter under the age of 21 years and a son or daughter of whatever age who is incapacitated from earning a living and without sufficient means.' Pursuant to chapter 1748 of the Statutes of 1971, effective March 4, 1972, subdivision (d) of section 241 was amended by the substitution of the phrase ‘18 years' for 21 years in the definition ‘child.’ There is no contention made in the present case that Deborah is ‘incapacitated from earning a living and without sufficient means.’

The term ‘equal protection of the laws' has been judicially defined to mean that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty, and property and in their pursuit of happiness. (Kentucky Co. v. Paramount Exch., 262 U.S. 544, 550, 43 S. Ct. 636, 67 L.Ed. 1112; Truax v. Corrigan, 257 U.S. 312, 336–338, 42 S.Ct. 124, 66 L. Ed. 254; Gray v. Whitmore, 17 Cal.App.3d 1, 21, 94 Cal.Rptr. 904.) ‘The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ (Purdy & Fitzpatrick v. State of California, 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 85, 456 P.2d 645, 653.) This concept, however, does not require absolute equality or that a statute necessarily apply equally to all persons; rather it permits a state to provide for differences as long as the result does not amount to invidious discrimination. (Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 9 L.Ed.2d 811; In re Antazo, 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 473 P.2d 999; Gray v. Whitmore, supra, at pp. 21–22, 17 Cal.App.3d 1.) Classification, when constitutionally permitted, must have a rational basis. (In re Eugene W., 29 Cal.App.3d 623, 627, 105 Cal.Rptr. 736.)

It is clear that the legislative intent was to reduce the age of majority from 21 years to 18 years and to require a man to support his son or daughter, who is not incapacitated, until he or she reached the age of 18 years. In doing so the Legislature determined in its wisdom that in the light of contemporary standards an able-bodied male or female who reaches the age of 18 years has the intelligence, experience, and capability of self-support and is entitled to be emancipated from the authority and control of its parents. It has long been the law of this state that the authority of a parent over a child ceases upon its attaining majority. (§ 204.) Accordingly, in the absence of an agreement to the contrary a parent is released from the legal duty of support upon a complete emancipation of a minor child. (Kamper v. Waldon (1941) 17 Cal.2d 718, 720, 112 P.2d 1; see Argonaut Ins. Exchange v. Kates (1955) 137 Cal.App.2d 158, 166, 289 P.2d 801.)

Under the provisions of section 25.1, different treatment will be afforded persons in the same categories. Needy children 18 years of age and over whose parents obtain a dissolution after March 4, 1972, are not entitled to support; however, needy children 18 years of age and over for whom a support order was entered prior to March 4, 1972, would be entitled to continued support at the lower court's discretion. Section 25.1 not only treats children in the same category differently, it classifies parents in the same category differently. A father who was ordered to support his child by an order made prior to March 4, 1972, must do so until the child is 21 years of age, while a father who was ordered to support his child on or after March 4, 1972, must do so only until the child reaches 18 years of age. We perceive these classifications as between the parents in the two classifications and as between the children who fall into the respective classifications to amount to an invidious discrimination. These classifications have no rational basis in the light of the legitimate purposes of the statutes which declare that a minor is a person under 18 years of age (§ 25) and, that except where there is a use or reference of the words ‘age of majority,’ ‘adult,’ ‘minor’ or words of similar intent in any instrument, order, transfer or governmental communication made in this state prior to March 4, 1972, the statute has ‘reference to persons 18 years of age and older, or younger than 18 years of age.’ (§ 25.1.)

We perceive another incongruity which points to invidious discrimination. Where there is no instrument, order, transfer or governmental communication using or referring to the terms ‘age of majority’ or ‘minor’ these terms have reference to a person who has reached 18 years of age or is under 18 years of age, respectively, without regard to whether this status occurred prior to or after March 4, 1972. Accordingly, where there is an order of support made prior to March 4, 1972, a child can, under existing statutes, be emancipated from the control of his parents but his father will, nevertheless, be obligated to support the son or daughter until he or she reaches 21 years of age. On the other hand, where there is no such order in existence which makes the references specified in section 25.1, there will be no obligation on the part of the father to support such child when he or she reaches 18 years of age, the age of majority and the date on which the child would be freed from parental authority. (See Phillips v. Phillips, 39 Cal.App.3d 723, 725–728, 114 Cal.Rptr. 362.)

The wife contends that since the order for child support is subject to modification any constitutional infirmity is obviated. This contention appears to find support in Atwell v. Atwell, 39 Cal.App.3d 383,3 114 Cal.Rptr. 324, where it was held that an amendment or modification sought after the date of the lowering of the age of majority does not automatically terminate child support for a child then over 18 years of age upon the rationale that the language of the enactment, referring to amendment of orders, merely made it clear that traditional law which for many years permitted the modification of child support orders was not affected by the new legislation. (pp. 387–388, 114 Cal.Rptr. 324.)

In a subsequent decision by the same court, Lungstrom v. Lungstrom, 41 Cal.App.3d 158, 115 Cal.Rptr. 825, Atwell was recognized as holding that the purport of the 1972 legislation was to allow pre-1972 child support to continue unabated until the former age of majority, unless and until a court, after a hearing and for good cause, expressly determined that the child involved no longer required parental support. Lungstrom holds, however, that the determination made in Atwell applies only where the court seeks to continue or reduce support payments prior to March 4, 1972, but does not apply where it is sought to increase the support payments ordered prior to March 4, 1972. (At pp. 160–161, 115 Cal.Rptr. 825.)

Atwell concluded that since section 25.1 specifically provides that the father can seek an amendment by asking the court to refer to the new age of majority there can be no complaint that the Constitution forbids a distinction between fathers who have support orders made before and after March 4, 1972. (At p. 388, 114 Cal.Rptr. 324.) The reviewing court was specifically referring to the following language in section 25.1: ‘Nothing contained herein or in Chapter 1748 of the Statutes of 1971 shall prevent the amendment of any court order, will, trust, contract, transfer, or instrument to refer to the new 18-year-old age of majority where such court order, will, trust, contract, transfer, or instrument is: (1) In existence on March 4, 1972; . . .’ (Emphasis added.) We are hard put to interpret the legislative intent of this provision and in particular what is meant by an amendment of the specified documents or instruments ‘to refer’ to the new 18-year-old age of majority.

Our interpretation of this provision is that upon a petition for modification of an order existing on March 4, 1972, and providing for child support until the child reaches 21 years of age the court can take into consideration the new age of majority as a circumstance in determining whether the support provision in the order ought to be modified or amended. Atwell appears to hold that in each instance the court has the discretion to invoke the new rule of majority when it states, ‘The court can examine each case on its own facts and decide whether to invoke the new rule of majority or not, based on rational distinctions.’ (39 Cal.App.3d at p. 388, 114 Cal.Rptr. at p. 328.) As we have concluded there is no rational basis for any distinction and, accordingly, when courts undertake to invoke the new age of majority under one set of facts and not under another set of facts the discrimination which the distinction begets is compounded.

Atwell disposes of the ‘constitutional violation’ argument with the statement that ‘There is no constitutional violation where the distinctions and classifications are reasonable and fair.’ (39 Cal.App.3d at p. 388, 114 Cal.Rptr. at p. 328.) This statement is made in conjunction with the observation that rational distinctions can be made on a case-by-case basis between fathers who have support orders made before and after March 4, 1972, when the father seeks an amendment of the order. We do not perceive that Atwell purports to treat the equal protection of the laws argument in the context in which it has been presented to us.

The order appealed from is reversed with a direction to the trial court that it enter its order that the husband has no obligation to support Deborah by virtue of the provisions of the interlocutory and final judgments of divorce.

FOOTNOTES

1.  Civil Code section 25.1 reads substantially the same as section 4 of chapter 38 of the Statutes of 1972. In subdivision (a) the words ‘Before March 4, 1972’ have been substituted in place of the phrase ‘Before the effective date of Chapter 1748 of the Statutes of 1971.’ In subdivision (b) the date ‘March 4, 1972’ has been substituted in place of the phrase ‘the effective date of Chapter 1748 of the Statutes of 1971.’ In subdivision (1) the date ‘March 4, 1972’ has been substituted in lieu of the phrase ‘on the effective date of Chapter 1748 of the Statutes of 1971.’

2.  Unless otherwise indicated all statutory references hereinafter made are to the Civil Code.

FN3. A hearing by the Supreme Court was denied..  FN3. A hearing by the Supreme Court was denied.

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.