Opinion
No. 79CA0064
Decided August 23, 1979. Rehearing denied September 20, 1979. Certiorari granted October 29, 1979.
In dissolution of marriage proceeding, the trial court determined that the 19-year-old son of the parties was emancipated for child support purposes when he worked full-time during summer prior to college. The child's mother appealed.
Reversed
1. PARENT AND CHILD — Emancipation — Not Present — Minor Employed — Living Away From Home — Temporarily — Intent — Return to Parental Support. A child is not emancipated under circumstances in which he is employed and living away from home on a strictly temporary basis with the intention of returning to parental support.
2. DISSOLUTION OF MARRIAGE — Attorney's Fees — No Award — Not Abuse of Discretion — No Financial Information Submitted — No Other Compelling Reasons Presented. In dissolution of marriage proceeding, the trial court's refusal to award attorney's fees was not an abuse of discretion as no financial information was submitted by the parties, and no other compelling reasons were presented requiring an award of attorney's fees.
Appeal from the District Court of Adams County, Honorable Dorothy Binder, Judge.
Gaunt, Dirrim Coover, C. Vincent Phelps, for appellant.
Marshall Marshall, Donald W. Marshall, Jr., for appellee.
On this appeal, we are presented with the question of whether the 19-year-old son of the parties was emancipated for child support purposes when he worked full-time during the summer prior to entering college. The trial court determined that he was temporarily emancipated and that therefore no child support obligation existed for the summer months. We reverse as to this issue.
In 1975, the parties entered into a separation agreement which was incorporated into their decree of dissolution. It provided that the husband's monthly child support obligation would:
"continue for each of the children until each child may reach the age of 21 years or complete his or her college education, whichever is later in time, unless such child shall sooner become emancipated, then and in that event, the support obligation shall cease upon emancipation."
The parties' son graduated from high school in 1977, and lived for several months with the husband in Virginia, and then with the wife in Colorado. In the spring of 1978, the son applied for college and found a well-paying full-time job in Wyoming. With the wife's consent, the son moved to Wyoming, where he paid all of his own expenses, except for some money borrowed from the wife. A few weeks after beginning work, he was notified that he had been accepted for college enrollment in the fall.
The only disputed portion of the child support obligation is for the summer; the husband has agreed to resume payments while the son is enrolled in college.
Whether or not a child should be considered emancipated is ordinarily a question that must be decided with reference to the facts of each case. Van Orman v. Van Orman, 30 Colo. App. 177, 492 P.2d 81 (1971). No single factor is dispositive in determining whether emancipation has occurred, In re the Marriage of Weisbert, 39 Colo. App. 115, 564 P.2d 961 (1977); rather, it must be determined whether there has been "a complete severance of the filial tie." Van Orman, supra.
However, where, as here, a child is employed during the summer in preparation for the educational year, despite the apparent independence of the child for a short period, the intended result is not the dissolution of parental ties contemplated by the term "emancipation." The custodial parent's financial responsibilities continue during the child's temporary absence. Furthermore, a cessation of child support while the child is employed during school vacations would discourage the child from seeking employment and would unnecessarily penalize the child.
[1] A child is not emancipated under circumstances in which he is employed and living away from home on a strictly temporary basis with the intention of returning to parental support.
[2] We reject the wife's contention that the trial court erred in failing to award attorneys' fees. Here, no financial information was submitted by the parties, and no other compelling reasons were presented requiring an award of attorneys' fees; thus, we find no abuse of discretion by the trial court. See In re the Marriage of Corbin, 42 Colo. App. 200, 591 P.2d 1046 (1979).
The trial court's order is affirmed except insofar as it fails to enter judgment for child support arrearages for the months of May, June, July, and August 1978. The cause is remanded with directions to enter an order awarding child support for these months.
JUDGE RULAND concurs.
JUDGE VAN CISE concurs in part and dissents in part.