Kamper v. Waldon

SHENK, J.

This is an appeal from a judgment for the defendant in an action for declaratory relief.

On October 27, 1934, the plaintiff and the defendant, then husband and wife living in a state of separation, entered into a property settlement agreement. In consideration of the mutual covenants therein contained, it was agreed that the custody of the four minor children of the parties be given to the defendant wife; that the plaintiff husband pay the defendant the sum of $30 a month for the support and maintenance of said minor children, such payments to commence immediately and to continue as long as the youngest child, Edith, “should live and be under the age of twenty one years”; that each party release all interest and claim to any and all property of the other; and that the defendant relinquish any claim to alimony. Subsequently the defendant obtained a divorce from the plaintiff. Neither the interlocutory nor the final decree made any reference to the aforesaid agreement and no provision was made in either decree for the support of the minor children nor for alimony payments to respondent.

The plaintiff made the monthly payments required under the agreement until December 23, 1937. At that time three of the children had reached their majority, and Edith, though but seventeen years of age, had been lawfully married for a period of one month. Thereupon the plaintiff notified the defendant that he would no longer pay the specified amount because of Edith’s marriage. On April 30, 1938, the defendant filed suit in the justice court for money allegedly due

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under the agreement. The plaintiff then commenced the present action in the superior court for declaratory relief and obtained a preliminary injunction restraining the defendant from prosecuting the action in the justice’s court pending the determination of this matter in the trial court. Upon the trial, the preliminary injunction was dissolved and judgment went for the defendant. The appeal is from the judgment.

It is urged by the plaintiff that the lawful marriage of Edith resulted in her emancipation from parental control and operated to relieve him from his legal duty to support her. In support of this contention the plaintiff relies upon decisions of other jurisdictions and on section 204 (2) of the Civil Code, which provides: “The authority of a parent ceases . . . upon the marriage of the child.” It is then argued that the cited section became part of and abrogated the agreement in so far as its terms purported to impress an obligation of support after Edith’s marriage. This conclusion follows, so the plaintiff asserts, from an application of the rule that laws in existence when an agreement is made enter into and form a part of the agreement as fully as if expressly incorporated therein. It may be assumed, in the absence of an agreement to the contrary, that a parent is released from the legal duty of support upon the complete emancipation of a minor child, as by its lawful marriage. (See