WOOD v. WOOD, 407 A.2d 282 (Me. 1979)

Supreme Judicial Court of Maine.
October 25, 1979.

Appeal from the Superior Court, York County.

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Richard E. Valentino (orally), Saco, for plaintiff.

Ranger Copeland by Orville T. Ranger (orally), Paul R. Copeland, III, Brunswick, for defendant.

Before McKUSICK, C.J., and POMEROY, WERNICK, GODFREY, NICHOLS and GLASSMAN, JJ.

GLASSMAN, Justice.

The appellant George Wood appeals from the judgment of the Superior Court, York County, entered on December 8, 1978, which reversed an order of the District Court, Tenth District, Division of Southern York, dated October 25, 1977, fixing arrearages in child support and granting a reduction in support payments under a divorce judgment. The appellant contends that the rule of law applied by the Superior Court — that the father is primarily liable to support his minor children — violates the Equal Protection Clause of the Fourteenth Amendment and that the District Court acted properly in altering the support decree retroactively.[1]

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On October 17, 1975, the appellee Frances Wood was granted a divorce from the appellant George Wood. The divorce judgment incorporated by reference a property settlement agreement which provided, inter alia, that the appellant would pay the appellee the sum of $75.00 per week for the support of each of the two minor children in the custody of the appellee. The judgment specifically mentioned this provision and decreed that the support obligation would continue “until further Order of Court.” In September of 1976, the appellee secured employment as a public school teacher. That same month the appellant unilaterally ceased making support payments, resuming payments in October at a reduced rate of $50.00 per child per week. In a document dated October 18, 1976 and filed in the District Court on November 17, 1976, the appellee brought a motion for contempt, seeking arrearages and counsel fees. In his answer and cross-motion, dated November 16, 1976 and filed on November 29, 1976, the appellant sought modification of the support payments to $50.00 weekly for each of the two children.

On October 25, 1977, the District Court, after hearing, found that the child support provision was based upon the financial status of the parties as of the date of the divorce judgment and that the relative financial circumstances had subsequently changed because the appellee was now employed as a teacher, whereas at the time of the divorce she had no income. The court concluded that this increase in the financial resources of the appellee warranted a reduction in the support obligation of the appellant. Accordingly, the District Court reduced the support payments to $50.00 per child per week, to commence on November 16, 1976, the date appearing upon the appellant’s cross-motion for modification. In determining the arrearages for which execution would issue, the court only considered unpaid installments prior to that date, fixing support arrearages at $400.00.

On appeal the Superior Court reversed the order on modification and arrearage. The court noted that the District Court order was premised not on a diminished ability by the appellant to provide a reasonable level of support but rather solely on the improved financial status of the appellee. This ground for modification, the Superior Court determined, was inconsistent with the traditional principle stated in Pendexter v. Pendexter, Me., 363 A.2d 743 (1976), placing the primary support obligation on the father and considering the financial status of the mother relevant only when the father is unable to provide a reasonable level of support on his own.

It is clear to us that the Superior Court misconstrued th Pendexter holding.[2] As we recently emphasized in Gardner v. Perry, Me., 405 A.2d 721, 725 (1979), the opinion of this Court in Pendexter rejected the traditional rule imposing primary child support liability on the father as an outmoded distinction predicated on an archaic stereotype in which the mother played a dependent role in the allocation of family responsibilities Pendexter v. Pendexter, supra, 363 A.2d at 748. Rather, th Pendexter Court held that

the primary purpose of child support is the best interest and welfare of the child. Support, as every other duty arising from the relationship of parent and child, is the equal responsibility of both mother and father, to be discharged in accordance with their respective capacity and ability. Id. at 749.

Because the Superior Court applied an erroneous principle of law, we need not consider whether the principle it applied is an unconstitutional gender-based classification. In fashioning its modification order, the District Court properly considered the relative

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financial circumstances of both parents. We cannot say that the court abused its discretion in ordering a reduction in child support payments. See Gardner v. Perry, supra, 405 A.2d at 725 Strater v. Strater, 159 Me. 508, 519-20, 196 A.2d 94, 99-100 (1963).

Although properly reducing the support obligation of the appellant as to future payments, the District Court decreed that the order become effective as of November 16, 1976, rather than on the date of its entry, October 25, 1977. This action raises the issue whether the court had authority to reduce the support payments retroactively.

Jurisdictions differ on the question whether a divorce court has the power to order retroactive alteration of a child support order. See generally, H. Clark, Domestic Relations § 15.2 (1968); 24 Am. Jur.2d Divorce and Separation § 853 (1966); 27B C.J.S Divorce § 322(1)(c) (1959); Annot., 6 A.L.R.2d 1277 (1949). Many jurisdictions hold that courts lack authority to reduce or cancel accrued child support payments on the ground that accrued installments become final judgments which cannot be modified e.g., Engleman v. Engleman, 145 Colo. 299, 302, 358 P.2d 864, 866 (1961); McPherson v. McPherson, 153 Ohio St. 82, 91, 90 N.E.2d 675, 680 (1950); Tente v. Tente, 112 R.I. 636, 639, 314 A.2d 149, 151 (1974), or that support payments become vested as they accrue, e.g., Needler v. Needler, 131 Ill. App.2d 11, 22, 268 N.E.2d 517, 526 (1971); McCrady v. Mahon, 117 N.H. 762, 763, 378 A.2d 1143, 1144 (1977) (per curiam), or that statutes authorizing the modification of support orders cannot be construed as allowing the cancellation of arrearages. E.g., Kell v. Kell, 179 Iowa 647, 651, 161 N.W. 634, 636 (1917); Davis v. Davis, 145 Kan. 282, 286, 65 P.2d 562, 565 (1937); Pishue v. Pishue, 32 Wn.2d 750, 753, 203 P.2d 1070, 1072 (1949); cf. Delbridge v. Sears, 179 Iowa 526, 529-534, 160 N.W. 218, 220-21 (1916) (no power to cancel accrued alimony). Primarily as a matter of statutory construction, some courts hold that the power of modification granted divorce courts extends not only to future child support installments but also to arrearages. E.g., Sawyer v. Kuhnie, 324 Mass. 53, 56, 84 N.E.2d 546, 548 (1949); Wellman v. Wellman, 305 Mich. 365, 371, 9 N.W.2d 579, 581 (1943); Slep v. Slep, 43 N.J. Super. 538, 541, 129 A.2d 317, 319 (1957); cf. Watts v. Watts, 314 Mass. 129, 133-34, 49 N.E.2d 609, 611-12 (1943) (cancellation of alimony arrearages). By statute, legislatures in other jurisdictions have specifically granted, e.g., N.Y.Dom.Rel. Law § 240 (Consol. 1979), or denied, e.g., Cal.Civ.Code § 4700 (West Supp. 1979), courts the power to cancel child support arrearages.

Even in jurisdictions that forbid the retroactive modification of arrearages, courts altering child support decrees generally are empowered to cancel arrearages which accrued after the filing of the motion for modification and before entry of the order E.g., Scott v. Scott, 265 Ala. 208, 211, 90 So.2d 813, 815 (1956) (per curiam); Rhodes v. Gilpin, 264 A.2d 497, 500 (D.C.App. 1970); In re Marriage of Matzen, 69 Ill. App.3d 69, 73, 25 Ill.Dec. 557, 560, 387 N.E.2d 14, 17 (1979); Cal.Civ.Code § 4700 (West Supp. 1979). In the instant case, the District Court apparently intended to reduce the child support obligation of the appellant as of the date of his cross-motion for modification. Although dated November 16, 1976, according to the record the motion was not filed until November 29, 1976, during which time two additional support installments accrued. Because the effective date of the order preceded the date of filing, the cancellation of the additional $100.00 of arrearage cannot be justified by reference to cases allowing post-filing cancellation under proper circumstances. Therefore, we must determine the law of Maine on the issue of retroactive modification of child support decrees.

This Court has repeatedly stated that jurisdiction over divorce and incidental relief is purely statutory.[3] The authority of

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the divorce court over matters of alimony, counsel fees and the custody and support of minor children “must be found in the statutes or it does not exist.” Baril v. Baril, Me., 354 A.2d 392, 395 (1976); Dolan v. Dolan, Me., 259 A.2d 32, 35-36 (1969) Belanger v. Belanger, Me., 240 A.2d 743, 745 (1968); Strater v. Strater, 159 Me. 508, 510, 196 A.2d 94, 95 (1963); Dumais v. Dumais, 152 Me. 24, 26-27, 122 A.2d 322, 324 (1956); White v. Shalit, 136 Me. 65, 66-67, 1 A.2d 765, 766 (1938); McIntire v. McIntire, 130 Me. 326, 335, 155 A. 731, 735 (1931); Stewart v. Stewart, 78 Me. 548, 551, 7 A. 473, 474 (1887); Stratton v. Stratton, 73 Me. 481, 483 (1882); Henderson v. Henderson, 64 Me. 419, 421 (1875). See generally, Opinion of the Justices, 16 Me. 479
(1840). Although courts construing the divorce statutes properly display a special solicitude toward the minor children of divorced parents in fashioning decrees in the best interests of the children, the source of the courts’ power is the statute governing divorce and not the general grant of equitable jurisdiction. See Baril v. Baril, supra, 354 A.2d at 395; Dumais v. Dumais, supra, 152 Me. at 27, 122 A.2d at 324. That such decrees terminate the common law parental support obligation, substituting in its place a statutory duty to support, reinforces this conclusion. See Mahaney v. Crocker, 149 Me. 76, 78, 98 A.2d 728, 729 (1953); Hall v. Green, 87 Me. 122, 123-24, 32 A. 796, 797 (1895). The issue whether a divorce court can order retroactive modification of a child support order, therefore, must be resolved by reference to the statutory scheme governing divorce.

The authority to issue or modify child support orders incident to a divorce is given to the divorce court in 19 M.R.S.A. § 752
(Supp. 1978), which provides in pertinent part: “The court making an order of nullity or of divorce may make an order concerning the care, custody and support of the minor children of the parties . . . [and] . . . may alter its order . . .

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from time to time as circumstances require . . . .” Id. In dicta, this Court has stated that in exercising these broad statutory powers, a court issuing a support order may, upon a material change of circumstances, modify the decree even retroactively Gardner v. Perry, Me., 405 A.2d 721, 724 (1979); Button v. Button, Me., 222 A.2d 245, 247 (1966); Wilson v. Wilson, 143 Me. 113, 117, 56 A.2d 453, 456 (1947). See also Mahaney v. Crocker, supra, 149 Me. at 79, 98 A.2d at 729. Despite these dicta, the Court has never before had occasion to rule squarely on the power of a divorce court to modify a child support order retroactively so as to excuse the parent paying support from an accrued obligation.

Nothing in the statute expressly authorizes cancellation of arrearages by retroactive application of a modification order. Nor does the policy underlying the statute justify our reading into it a power to issue retroactive orders modifying support decrees. Quite the contrary. The manifest purpose of the support order is to provide for the child’s welfare. The custodial parent, in planning for the care and education of the minor child, must be able to rely upon the financial assurance provided by an outstanding court order, at least until there is formal legal action seeking a modification. Absent such minimal financial certainty, there is no way the custodial parent can adequately plan to meet the needs of the minor child. Davis v. Davis, supra, 145 Kan. at 286, 65 P.2d at 565. In addition, construing our statute to permit retroactive modification encourages self-help rather than resort to the court. The parent paying support would be encouraged to reduce support payments unilaterally whenever he believed a change of circumstances justified a reduction. The policy of the law is to discourage self-help and to encourage resort to the courts when modification of decrees concerning child custody and support is justified Gardner v. Perry, supra, 405 A.2d at 724 n. 4; In re Marriage of Matzen, supra, 69 Ill. App.3d at 72, 25 Ill.Dec. at 559, 387 N.E.2d at 16; Fearon v. Fearon, 207 Va. 927, 930, 154 S.E.2d 165, 167-68 (1967). If Section 752 can be read as authorizing retroactive modification, fairness would require that we also read into the statute a provision authorizing repayment by the custodial parent of installments already paid under an outstanding decree when that decree is retroactively modified Cf. Sistare v. Sistare, 218 U.S. 1, 23, 30 S.Ct. 682, 54 L.Ed. 905 (1910) (construing state alimony statute). Moreover, if Section 752 grants courts the power to reduce accumulated arrearages, then by the same token courts may increase past-due installments, and a divorce decree may later be modified to require support payments for past years. Davis v. Davis, supra,
145 Kan. at 286, 65 P.2d at 565.

We do not think the legislative policy behind Section 752 contemplates such a result. That section can be construed to authorize only prospective modification of child support orders. We reject any language in prior decisions which is inconsistent with this conclusion.[4]

Two exceptions must be recognized to the rule which we now adopt. Implicit in every support order is the requirement that the funds paid to the custodial parent be expended for the support of the minor child. If the custodial parent is relieved of that obligation by the child’s death, its emancipation, its achieving the age of majority, or otherwise, the parent paying support may be relieved of his obligation as of the date the custodial parent ceased providing support to the minor child.

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This principle is consistent with a recognition that the purpose of the order is to provide support for the minor child and not a windfall to the custodial parent. Sutherland v. Sutherland, 77 Wn.2d 6, 8-9, 459 P.2d 397, 398-99 (1969); see Baril v. Baril, supra, 354 A.2d at 395-98; McGugin v. McGugin, 357 So.2d 347, 350 (Ala.Civ.App. 1978). A second exception is that the court may make its modification decree retroactive to the date the application for modification was filed. Under appropriate circumstances, such an order is completely consistent with the legislative purpose of Section 752. The custodial parent has been placed on notice of a potential reduction in suport payments by the filing of the motion for modification. Rather than promoting self-help on the part of the parent paying support, this limited degree of retroactivity encourages that parent to seek judicial modification immediately upon an appropriate change in circumstances. Whether a modification decree should be made retroactive to the date of filing of the application for modification is a matter left to the sound discretion of the divorce court. In exercising that discretion, the court may consider whether either parent has engaged in dilatory tactics since the filing of the application; whether the obligor parent has engaged in self-help prior to filing the application by reducing the payments or by ceasing to make payments; and whether any other factor exists tending to demonstrate that such a degree of retroactivity is or is not consistent with the beneficent purposes of Section 752.

Applying these principles to the instant case, the District Court should have fixed the effective date of its modification order no earlier than November 29, 1976, the date of the filing of the application for modification, and should have awarded all arrearage accrued to the effective date of its modification order. Thus, the case must be remanded to the District Court so that it may fix the effective date of its modification order in accordance with the principles enunciated in this opinion and so it may award all arrearage accrued to that date.

On remand the District Court has jurisdiction to entertain a motion by the appellee for reasonable counsel fees chargeable to the appeals. Gardner v. Perry, supra, 405 A.2d at 726; 19 M.R.S.A. § 722 (Supp. 1978).

The entry is:

(1) The appeal from the judgment reversing the modification order is sustained in part and denied in part; to the extent that the modification order operated prospectively the judgment of the Superior Court is set aside, to the extent that the modification order operated retroactively the judgment of the Superior Court is affirmed.

(2) The appeal from the judgment fixing arrearage is denied; the judgment of the Superior Court is affirmed.

(3) The cross-appeal as to counsel fees is dismissed for lack of jurisdiction.

(4) The case is remanded to the District Court for the purpose of having it fix the effective date of its modification order and award all accrued arrearage to the effective date of its modification order.

(5) Each party is to bear its own costs on appeal.

ARCHIBALD, J., did not sit.