A number of courts in other jurisdictions have construed similar statutory provisions in a like manner. See, for example, Vicino v. Vicino (1972) 30 Conn. Sup. 49 [ 298 A.2d 241, 242-244], and Monticello v. Monticello (1974) 271 Md. 168 [ 315 A.2d 520, 521, 523]. (3) In considering defendant's equal protection attack upon section 25.1, we begin by determining the appropriate test to be used by this court in judging the constitutional validity of the statute.
On June 12, 1973, the defendant moved to modify the judgment regarding support for a second child, Jane, who turned eighteen years of age on June 2, 1973, claiming that he was, as a matter of law, no longer responsible for her support. The trial court overruled the special defense and denied the motion to modify on the basis of Vicino v. Vicino, 30 Conn. Sup. 49, 298 A.2d 241. The defendant has appealed to this court from those rulings. The issues presented in both rulings are practically identical.
The number of jurisdictions recognizing this common-law obligation of support are legion. See Pleasant v. Washington Sand Gravel Co., 262 F.2d 471 (C.A.D.C. 1958); Southern California Edison Co. v. Industrial Acc. Com'n, 92 Cal.App. 355, 268 P. 415 (1928); Vicino v. Vicino, 30 Conn. Sup. 49, 298 A.2d 241 (1972); Nielsen v. Nielsen, 93 Idaho 419, 462 P.2d 512 (1969); Kelley v. Iowa Department of Social Services, supra; Kinsella v. Kinsella, 181 N.W.2d 764 (N.D. 1970); Lynch v. Armbruster, 7 Ohio App.2d 1, 218 N.E.2d 624 (1966); Lutz v. Lutz, supra; In re Custody of Miller, 86 Wn.2d 712, 548 P.2d 542 (1976); Lizotte v. Lizotte, 15 Wn. App. 622, 551 P.2d 137 (1976). See generally S.L.W. v. Alaska Workmen's Compensation Board, 490 P.2d 42 (Alaska 1971).
Cunningham v. Cunningham, 12 Wn. App. 778, 779, 532 P.2d 652, 654 (1975); Choquette v. Choquette, 232 Ga. 759, 760 208 S.E.2d 848, 849 (1974). Here Eleanor relies on the holding in Vicino v. Vicino, 30 Conn. Sup. 49, 298 A.2d 241 (1972). In that case, a Connecticut Superior Court justice held that support for minor children until they reach the age of 21 was a substantive right, accorded by the statute in effect at the time the decree was entered, and that it was not to be disturbed retroactively by the statute lowering the age of majority to 18.
See Brugger v. Brugger, 303 Minn. 488, 229 N.W.2d 131, 136 (1975); Yaeger v. Yaeger, 303 Minn. 497, 229 N.W.2d 137, 138 (1975); Hampton v. Hampton, 303 Minn. 500, 229 N.W.2d 139, 140 (1975). The same result was reached under varying circumstances in Vicino v. Vicino, 30 Conn.Super. 49, 298 A.2d 241, 242, 243 (1972); Wilcox v. Wilcox, 406 S.W.2d 152, 153 (Ky. 1966); Monticello v. Monticello, 271 Md. 168, 315 A.2d 520, 523 (1974); Springstun v. Springstun, 131 Wn. 109, 229 P. 14, 16 (1924); Cunningham v. Cunningham, 12 Wn. App. 778, 532 P.2d 652, 653 (1975); Corbin v. Corbin, 206 S.E.2d 898, 907 (W.Va. 1974). A contrary result has been reached by several other courts.
Ganschow v. Ganschow, 14 Cal.3d 150, 154-158, appeal dismissed, 423 U.S. 887 (1975). Vicino v. Vicino, 298 A.2d 241 (Conn. Supp. 1972). Daugherty v. Daugherty, 308 So.2d 24, 25 (Fla. 1975).
Implicit in the decisional law describing payment modification as allowed only when circumstances of the parties undergo change is the underlying requirement that a current legal obligation exists. In Vicino v. Vicino (1972), 30 Conn. Sup. 49, 298 A.2d 241, it was correctly acknowledged that the existence of the basic legal obligation, not its embodiment in a decree in terms of certain support for a specified date, is the crucial issue. This obligation is regulated by the legislature directly through its grant of the power to order support during infancy, sec. 247.24, Stats., and indirectly through its establishment of the period of infancy.
However, the cases are in agreement that where a statute lowers the age of majority from twenty-one to eighteen years, and a divorce decree provides for the support of children until twenty-one years of age or until otherwise emancipated, and a savings clause is included in the statute providing that such change shall not by operation of law effect any rights, duties or obligations existing by virtue of a judgment or decree prior to the effective date of the statute, and in the absence of specific language authorizing the court, in its discretion, to modify a decree when a child reaches the new age of majority, the child must be supported as provided in the divorce decree entered before the passage of the statute changing the age of majority. Monticello v. Monticello, 271 Md. 168, 315 A.2d 520 (1974); O'Connor v. O'Connor, 22 Md. App. 519, 323 A.2d 632 (1974); Vicino v. Vicino, 30 Conn. Sup. 49, 298 A.2d 241 (1972). We are, therefore, of the opinion that the clear and unambiguous savings provisions contained in Code 2-3-1, as that statute was in effect at the time of the judgment below, obligated the appellant to continue making support payments for Agnes Ann Dimitroff after her eighteenth birthday.
Most of the cases reported have to do with decrees based upon stipulations. Vicino v. Vicino (Conn.) 298 A.2d 241 holds that the father must pay until the child reaches 21 notwithstanding legislative enactment of the 18-year old statute. The decision was based upon the particular wording of the Connecticut statute and its legislative history to the effect the rights and obligations acquired or imposed before enactment of the Act would not be affected by the statute.
As the result of legislative action reducing the age of majority from 21 to 18, the courts of a number of our sister states have been confronted with problems similar to the one presented here. The results reached and the reasons therefor have not been consistent.Compare, e.g., Wilcox v. Wilcox, 406 S.W.2d 152 (Ky. 1966); Vicino v. Vicino, 30 Conn. Sup. 49, 298 A.2d 241 (Super. Ct. 1972); Barbier v. Barbier, 45 Mich. App. 402, 206 N.W.2d 464 (Ct. App. 1973); and Baker v. Baker, 80 Wn.2d 736, 498 P.2d 315 (1972); with Garey v. Garey, 482 S.W.2d 133 (Tenn. 1972): King v. Sanchez, 273 So.2d 45 (La. App. 1973); Mason v. Mason, 84 N.M. 720, 507 P.2d 781 (1973); and Shoaf v. Shoaf, 282 N.C. 287, 192 S.E.2d 299 (1972). But we need not seek outside authority for we find this case to be controlled by the existing law of the Commonwealth.