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SARA TEDDER NICHOLS v. LEE EDWARD TEDDER

JUNE 28, 1989

SARA TEDDER NICHOLS
v.
LEE EDWARD TEDDER



BEFORE ROY NOBLE LEE, C.J., PRATHER AND SULLIVAN, JJ.

PRATHER, JUSTICE, FOR THE COURT:

The principal issue at bar is parental support of post-majority children in college. Lee Edward Tedder, father, brought this action in the Chancery Court of Calhoun County for modification of the child support provisions of an earlier divorce decree. The chancellor granted the petition for modification of the prior decree and denied the counterclaim brought by the mother, Sara E. Tedder Nichols. From this decision favoring the father, the mother appeals and assigns as error the following:

(1) It was error to hold that support should be terminated as to the oldest child for the single reason that the child reached the age of 21 before she completed her last semester of college.

 (2) It was error to order that the noncustodial parent could claim a child for income tax exemption purposes.

 (3) It was error to allow the father credit on an existing judgment for child support arrearage.

 (4) It was error to deny the mother's counterclaim to restore the father's child support obligations to the amount established under the original divorce decree.

 I.

 The facts of this case are essentially undisputed. The parties were divorced by final decree on November 11, 1981. The three minor children were placed in the custody of the mother with child support payments required from the father. A second decree was entered on July 15, 1983, awarding appellant a judgment of $5,245.00, plus 8 percent interest, for support arrearage, and modifying the amount of monthly support from $400 total, pursuant to the original decree, to $350 total" . . . until the financial condition of the defendant improves. "

 The oldest child, Amanda, had her twenty-first birthday on November 3, 1986, while in her senior year at Blue Mountain College. The older son Darren, was a seventeen year-old high school senior, and he moved from his mother's home to his father's home in June, 1986. The youngest child, Christopher, remained with his mother, and the father continued to make support payments to the mother until December, 1986, when the hearing was held. The father paid $350 per month as support for all three children from July 15, 1983 until December, 1986, except for the month of June, 1986, when he paid only $250.

 In anticipation of Amanda's twenty-first birthday, her father, Lee Edward Tedder, petitioned the Chancery Court of Calhoun County for modification of prior decrees of that court under which he was obligated to pay child support for the benefit of his three children, including Amanda. At the time of the hearing in December, 1986, which decision is appealed, the father had not paid any amount on the arrearage of over $5,000.00 assessed against him at the July 15, 1983 hearing. The court granted the father a reduction of support, and a $558 credit on the 1983 judgment for the months Darren, the older son, lived with the father during 1986, and for the months after Amanda turned twenty-one years of age. The court

 ordered that the father could claim the two sons as exemptions for purposes of income tax filings.

 The chancery court denied the mother's counterclaim to increase the youngest child's support from $350 to $400 per month. The chancery court then reduced the child support due from the father to the mother to the amount of $217 for the youngest son, Christopher. The mother then appealed to this Court.

 II.

 WAS IT ERROR TO HOLD THAT CHILD SUPPORT SHOULD BE TERMINATED AS TO THE OLDEST CHILD FOR THE SINGLE REASON THAT THE CHILD REACHED THE AGE OF 21 BEFORE SHE COMPLETED HER LAST SEMESTER OF COLLEGE?

 Amanda Tedder turned twenty-one on November 3, 1986. As it happened, she was in her senior year of college with less than two semesters remaining until graduation. In anticipation of Amanda's 21st birthday, her father, Lee Edward Tedder, petitioned the Chancery Court of Calhoun County for modification of prior decrees of that court under which he was obligated to pay monthly child support for the benefit of his three children, Amanda included. Lee Tedder charged in his petition that, inter alia, the court should relieve him of the obligation of providing child support for the benefit of Amanda once she turned twenty-one. It is his position that the age of majority in this state for purposes of orders touching the care and maintenance of children is 21 years, unless emancipated earlier.

 The decree of the trial court, entered December 19, 1986, held in pertinent part that" Since Amanda has attained the age of 21 years on November 3, 1986, Lee Edward Tedder is no longer required to pay child support and he is entitled to a credit against the Judgment for support paid Amanda since she became twenty-one (21) years old. "The mother complains of error in this holding.

 At the outset, this Court desires to clarify the exact nature of the payments for which Mr. Tedder sought modification. There is a blurring in the briefs of the parties of the distinction between child support payments and payments for educational expenses.

 Mississippi Code Annotated, 93-5-23 (Supp. 1988), provides the trial court with authority to make all orders incident to divorce" touching the care, custody and maintenance of the children of the marriage . . . . "In addition to the authority conferred by Section 93-5-23, Miss. Code Ann., 93-11-65 (Supp.

 1988), confers upon the chancery court of the proper county the authority to hear and determine matters relative to the" custody, care, support and maintenance of minor children . . . "

 An order issued under the authority of either of the above code sections dealing with the care and maintenance of children of the marriage may, and often does, provide for the payment of several distinct types of expenses. The phrase" child support "is often used to describe all of these distinct expense payments. However, under the above cited code sections, regular child support is but one type of expense which the court may award for the care and maintenance of children.

 In the context of child care and maintenance orders, regular child support refers to the sums of money which the particular parent is ordered to pay for the child's basic, necessary living expenses, namely food, clothing, and shelter. Other sums which a parent may be ordered to pay for the care and maintenance of the child are the expenses of a college, or other advanced education. As noted in Duett v. Duett, 285 So. 2d 140 (Miss. 1973), the statute authorizing the court to enter decrees providing for the care and maintenance of the children is" susceptible of an interpretation to allow "the court to order the payment of expenses for a college education. 285 So.2d at 142, quoting Pass v. Pass, 238 Miss. 449, 458-59, 118 So.2d 769, 773 (1960). Whether in fact a parent will be ordered to pay or contribute to the expenses of a college or other advanced education is controlled by an application of the principles set forth in Rankin v. Bobo, 410 So.2d 1326 (Miss. 1982), Hambrick v. Prestwood, 382 So. 2d 474 (Miss. 1980), and Pass v. Pass, supra.

 Still other items which may properly be awarded pursuant to a valid child care and maintenance order are health related expenses such as reasonable and necessary medical, dental, optical, and psychiatric/psychological expenses. See Martin v. Martin, 538 So.2d 765 (Miss. 1989); Clark v. Myrick, 523 So.2d 79 (Miss. 1988); Bush v. Bush, 451 So.2d 779 (Miss. 1984). A parent can also be required to absorb insurance expenses such as maintaining medical and hospitalization insurance on the child, and maintaining a life insurance policy on his/her own life with the child named as beneficiary. See Bush v. Bush, supra; Kavanaugh v. Carraway, 435 So.2d 697 (Miss. 1983). In addition, we have held that it is not error for the trial court to require a parent to furnish an automobile and make mortgage payments as part of an award for the care and maintenance of children. Diamond v. Diamond, 403 So.2d 129 (Miss. 1981).

 Of course, the foregoing items are not intended to be an exclusive listing, but are merely examples of the real distinction

 between regular child support and other types of payments for which a parent may become obligated under the terms of a valid child care and maintenance order under Sections 93-5-23 and 93-11-65. Turning to the present case, it should be made clear that Mr. Tedder sought reduction of regular child support payments. Mr. Tedder alleged without contradiction in pleadings filed in the trial court that he has given Amanda" additional monies to defray the expenses of her school costs. . . . "Obviously, this is" additional "to the court ordered child support. Nowhere in the record does it appear that Mr. Tedder is under a court ordered obligation to contribute to the cost of Amanda's college education. According to both parents, Amanda attends college on scholarship, loans and works part time to pay for college.

 Therefore, the specific question this Court addresses in this case is whether Mr. Tedder can be required by court order to continue paying regular child support for the benefit of Amanda beyond her twenty-first (21) birthday, especially considering that she is regularly enrolled in college. Our resolution by necessity goes well beyond this case to answer the broader question of whether our courts can order any parent to provide for the care and maintenance of their child, such as by payment of child support, medical expenses, educational expenses, etc., after that child has attained the age of majority, or otherwise become emancipated.

 First, this Court must establish once and for all what is the age of majority in this State for purposes of child care and maintenance orders. This question has been addressed and answered in Watkins v. Watkins, 337 So.2d 723 (Miss. 1976). In Watkins, this Court observed that the term" children "as used in 93-5-23 and 93-11-65 describes" minor children. "Id. at 724. We further recognized that the duty of care and maintenance under 93-5-23 and 93-11-65 is not extended to adult children, and that the duty imposed on parents to provide for their child ceases when the child reaches the age of majority. Id. Stated otherwise, it is well recognized that a parent is relieved of the legal duty to support their child once the child is emancipated, by attaining the age of majority or otherwise. See Pearson v. Hatcher, 279 So.2d 654, 656 (Miss. 1973); Pass v. Pass, supra.

 Continuing, the court in Watkins stated that" it is common knowledge that in the context of this statute (93-5-23) the bench and bar have applied the term `children' to offspring who are less than twenty-one (21) years of age. "337 So. 2d at 724. Consequently," when Roy Watkins reached 21 years of age the decree for his support terminated and was thereafter inoperative. "Id. Following Watkins, this Court holds that twenty-one (21) years is the age of majority in this State for purposes of child care and maintenance orders issued pursuant to

 93-5-23 and 93-11-65.

 The trial court, therefore, correctly refused to order the continued payment of regular child support for Amanda's benefit beyond her twenty-first birthday. In the broader context, our courts have no authority under 93-5-23 and/or 93-11-65 to require parents to provide for the care and maintenance of their child after the child becomes emancipated, by reaching the age of twenty-one (21), or otherwise, whichever occurs first. Of course, nothing we have said should be interpreted as foreclosing the enforceability of agreements by the parties providing for the post-emancipation care and maintenance of their children, whether those agreements are separate contracts, or have been incorporated into the divorce decree.

 This Court fully appreciates that harsh results sometimes flow from actions taken by this Court, but this area of the law demands that we establish a clear line of demarcation. In the long run we trust that the establishment of such a line will prove beneficial to all interested parties. Beyond the age of emancipation, a parent's conduct in regard to the care and maintenance of their child must be controlled, not by courts, but by the parents' own conscience and sense of duty. The Chancellor's holding on this point is affirmed.

 III.

 WAS IT ERROR FOR THE TRIAL COURT TO ORDER THAT THE NON-CUSTODIAL PARENT COULD CLAIM TWO CHILDREN FOR INCOME TAX PURPOSES?

 This issue is one of first impression in this State, but it has received thorough discussion elsewhere. The discussion begins and ends with Section 152 of the Internal Revenue Service Code. Prior to January 1, 1985, the rule with which we are here concerned relating to dependency exemption" provided that unless otherwise specifically agreed to in writing by the parties or addressed in a court decree, the non-custodial parent could claim a dependency tax exemption if he or she paid more than $1,200 toward the support of a child in any calendar year and the custodial parent did `not clearly establish that he provided more for the support of such child during the calendar year than the parent not having custody.\rquote "Wassif v. Wassif, 77 Md. App. 750, 551 A.2d 935, 939 (1989), citing IRC 152 (e)(2)(B)(i) and (ii)(1982).

 The overwhelming majority of courts proceeding under the pre-January 1, 1985, version of the Revenue Code agreed that a state trial court had authority to allocate the dependency exemption to the non-custodial parent, and that a court order,

 standing alone, was effective to accomplish the transfer of exemption to the parent not otherwise entitled to it under 152 of the Code. Wassif v. Wassif, supra; In Re Marriage of Einhorn, 178 Ill. App. 3d 212, 127 Ill. Dec. 411, 533 N.E.2d 29, 36-7; Hooper v. Hooper, 1988 WL 10082 (Tenn. App. 1988, unpublished); Lorenz v. Lorenz, 166 Mich. App. 58, 419 N.W.2d 770, 771 (1988); Lincoln v. Lincoln, 155 Ariz. 272, 746 P.2d 13, 16-7 (1987); Cross v. Cross, 363 S.E.2d 449, 456 (W. Va. 1987); Theroux v. Boehmler, 410 N.W.2d 354, 358 (Minn. Ct. App. 1987); Fudenberq v. Molstad, 390 N.W.2d 19, 20 (Minn. App. 1986); Morphew v. Morphew, 419 N.E.2d 770 (Ind. Ct. App. 1981); Neiderkorn v. Neiderkorn, 616 S.W.2d 529 (Mo. App. 1981); Grider v. Grider, 376 So.2d. 1103 (Ala. Civ. App. 1979); Pettit v. Pettit, 261 So.2d 687 (La. App. 1972).

 Section 152 was not without its problems, however, and the law was amended by the Tax Reform Act of 1984 because of the many disputes that arose between divorced parents over who was entitled to the exemption in the first instance. Frequently, the Internal Revenue Service found itself an unwilling mediator in these disputes. The reasons for the amendments to 152 are found in the legislative history of the Tax Reform Act:

 Reasons for Change

 The present rules governing the allocations of the dependency exemption are often subjective and present difficult problems of proof and substantiation. The Internal Revenue Service Becomes involved in many disputes between parents who both claim the dependency exemption based on providing support over the applicable thresholds. The costs to the parties and the Government to resolve these disputes is relatively high and the Government generally has little tax revenue at stake in the outcome. The committee wishes to provide more certainty by allowing the custodial spouse the exemption unless the spouse waives his or her right to claim the exemption. Thus, dependency disputes between parents will be resolved without the involvement of the Internal Revenue Service.

 House Report No. 98-432, Part II, reprinted in 1984 U.S. Code Cong. & Admin. News 697, 1140.

 The applicable part of 152, as amended, provides as follows:

 (e) Support test in case of child of divorced parents, etc. -

 (1) Custodial parent gets exemption. - Except as otherwise provided in this subsection, if -

 (A) a child (as defined in section 151 (c)(3)) receives over half of his support during the calendar year from his parents -

 (i) who are divorced or legally separated under a decree of divorce or separate maintenance,

 (ii) who are separated under a written separation agreement, or

 (iii) who live apart at all times during the last 6 months of the calendar year, and

 (B) such child is in the custody of one or both parents for more than one-half of the calendar year, such child shall be treated, for purposes of subsection (a) as receiving over half of his support during the calendar year from the parent having custody for a greater portion of the calendar year (hereinafter in this subsection referred to as the" custodial parent ").

 Pursuant to the above stated rule, the custodial parent is automatically entitled to the exemption. There are, however, three exceptions to this rule of automatic allocation. See Treasury Regulation 1.152-4T. The only exception applicable in this case is found at 152 (e)(2). That exception is as follows:

 (2) Exception where custodial parent releases claim to exemption for the year. - A child of parents described in paragraph (1) shall be treated as having received over half of his support during a calendar year for the noncustodial parent if -

 (A) the custodial parent signs a written declaration (in such manner and form as the Secretary may by regulations prescribe) that such custodial parent will not claim such child as a dependent for any taxable year beginning in such calendar year, and

 (B) the noncustodial parent attaches such written declaration to the noncustodial parent's return for the taxable year ...


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