Weppner v. Weppner

Full title: ALBERT WEPPNER, Plaintiff and Appellant vs. HAZEL WEPPNER, Defendant and…

Court: Supreme Court of Wyoming

Date published: Dec 17, 1957

319 P.2d 127 (Wyo. 1957)

319 P.2d 127

Opinion

No. 2802

December 17, 1957

Appeal from the District Court of Laramie County, Wyoming, the Honorable Sam M. Thompson, Judge.

Affirmed.

For the plaintiff and appellant, the cause was submitted upon the brief and also oral argument of Philip White of Cheyenne, Wyoming.

For the defendant and respondent, the cause was submitted upon the brief of Greenwood, Ferrall and Bloomfield of Cheyenne, Wyoming, and oral argument of C.N. Bloomfield, Jr.

Heard before Blume, C.J., and Harnsberger and Parker, J.J.

POINTS OF COUNSEL FOR APPELLANT

The father being generally conceded to have prior right to the custody and control of the child, also has, as against the mother, the superior right to the services and earnings of the child. This is not necessarily true, however, in jurisdictions in which, as previously noted, there are statutes making the parents joint guardians, or otherwise equalizing their parental rights. The better rule, under modern conditions, would seem to be that the right to services of the child, since it is correlative to the duty to support, accrues to the parent who actually performs that duty. So, where the terms of a divorce decree leave the father still liable for the support of the child, he is the one entitled to the child's earnings, 39 A.J. 627. Emancipation may be in writing or by parol, and may be in express terms or implied from the parents' conduct and the surrounding circumstances, or it may arise from the conduct of the parent inconsistent with his claim for the further obedience or services of the child. An express emancipation takes places when the parent freely and voluntarily agrees with his child, who is able to take care of and provide for itself, that it may leave home, earn its own living, and do as it pleases with its earnings. Thus a father may give an infant son his time, and in such case the son's earnings belong to him, although this does not necessarily effect a complete emancipation. An implied emancipation results when the parent, without any express agreement, impliedly consents by his acts and conduct that the child may have its own time and control of its earnings, or such consent is inferred from or shown by circumstances. 39 A.J. 702. The significance of the term emancipation is not exact. Emancipation, as employed in the law of parent and child, means the freeing of a child for all the period of its minority from the care, custody, control and service of its parents; the relinquishment of parental control, conferring on the child the rights to its own earnings and terminating the parents legal obligation to support it. It is sometimes used to signify the complete severance of the parental relationship so far as legal rights and liabilities are concerned. 67 C.J.S. 2, 811.

POINTS OF COUNSEL FOR RESPONDENT

In general, defenses to the charge of contempt for non-compliance with an order or decree for the support of children are similar to those to a charge of non-compliance with an order or decree for alimony. The inability of the father, without fault on his part, to make the payments required by the decree is a defense to a charge of contempt. If the father's inability to pay has been caused by his own neglect or misconduct, the inability is no defense to a charge of contempt. Non-payment of child support will be deemed a punishable contempt only when it is a wilful or contumacious disobedience of the order of the court. If, therefore, the father reasonably believed that he was not required to comply strictly with the support order because of certain subsequent events, he is not punishable for contempt. For example, where a husband and wife agree husband's income has declined, and the payments may be reduced because the husband complies with the agreement, the court is obviously justified in refusing to find him guilty of contempt. Nevertheless, it has been held that the earnings of a minor can have no bearing on his father's guilt or innocence of contempt in failing to comply with a support order. 17 A.J. 63. The earnings of the minor during the time the order was in effect can have no bearing on the petitioner's guilt or innocence of the contempt found. They are relevant only for the guidance of the court in making or modifying orders for support. 71 P.2d 918.

OPINION

PER CURIAM.

Appellant was found guilty of contempt for failure to meet support payments for a minor child as provided in a divorce decree and amendments issued under authority of §§ 3-5914, 3-5915, and 3-5922, W.C.S. 1945.

The record discloses that $1,670 of the decreed support payments remained unpaid and that the child, a son, had reached the age of twenty-one years in February or March of this year, had graduated from high school in 1954, and had been attending a university since. An offer of proof that the son had earned some three hundred dollars per month during summer vacations since 1953 was rejected.

Appellant admits that the decree was "in full force and effect" at the time of the filing of the petition requesting citation for contempt; and he was apparently fully aware of the provisions of § 3-5922 allowing revision and alteration of the allowance for a minor child — because he had previously requested and secured reductions in the support payments.

Appellant urges, first, that he has no duty to support because the son has been emancipated (apparently because of ability to earn), and, second, that if there has been no emancipation then appellant is entitled to an accounting of the son's earnings and credit therefor. Neither of these claims may be interposed as a defense. It is stated in 27 C.J.S., Divorce § 321, p. 1231, that:

"* * * The earnings of the minor child during the time the order was in effect have no bearing on the father's guilt or innocence of contempt, but are relevant only for the guidance of the court in making or modifying orders for support. * * *"

Facts arising subsequent to the issuance of a decree which might render its modification proper cannot be interposed as a defense in contempt proceedings. See 17 C.J.S., Contempt § 40; and State ex rel. Tuthill v. Giddings, 98 Minn. 102, 107 N.W. 1048. See also De La Mater v. Graves, 69 Colo. 255, 193 P. 552; and Boyer v. Bowles, 316 Mass. 90, 54 N.E.2d 925.

Affirmed.