BASIC (03-06)

PS 01415.049 Utah

A. PS 04-298 Research on State Treatment of Child Support Arrearages

DATE: April 18, 2001

1. SYLLABUS

This opinion answers several questions concerning child support arrearages in the six States in Region VIII (Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming). The opinion answers the following questions: (1) What is the age of majority for purposes of child support obligations? (2) Are child support arrearages the property of the custodial parent or the child? (3) Who is the proper party to bring legal action to obtain child support arrearages? (4) Are the answers to questions 2 and 3 different if the child is a minor as opposed to if the child has reached majority?

2. OPINION

You have requested research and answers to several questions concerning child support arrearages in the six states in Region VIII, that is, Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming. Specifically, you ask: 1) What is the age of majority for purposes of child support obligations; 2) Are child support arrearages the property of the custodial parent or the child; 3) Who is the proper party to bring legal action to obtain child support arrearages; and, 4) Are the answers to questions 2 and 3 different if the child is a minor as opposed to if the child has reached majority?

Colorado

1) Age of Majority for Purposes of Support Obligations.

"Unless a court finds that a child is otherwise emancipated, emancipation occurs and child support terminates when the child attains nineteen years of age unless one or more of the following conditions exist:

  1. The parties agree otherwise in a written stipulation;

  2. If the child is mentally or physically disabled, the court or the delegate child support enforcement unit may order child support, including payments for medical expenses or insurance or both, to continue beyond the age of nineteen;

  3. If the child is still in high school or an equivalent program, support continues until the end of the month following graduation, [unless, only for child support orders entered prior to July 1, 1997, there is an order for postsecondary education, in which case support continues through postsecondary education as provided in subparagraph (I) of paragraph (b) of this subsection (1.5).] A child who ceases to attend high school prior to graduation and later reenrolls is entitled to support upon reenrollment and until the end of the month following graduation, but not beyond age twenty-one.

Colo. Rev. Stat. '' 14-10-115(1.5)(a), (1.6) (1.7) (2000).

AFor child support orders entered prior to July 1, 1997, if a court finds it appropriate for the parents to contribute to the costs of a program of postsecondary education, the court shall terminate child support and enter an order requiring both parents to contribute" to the child's education expenses. Id. ' 14-10-115(1.5)(b)(I).

In no case shall the court issue orders providing for both child support and postsecondary education to be paid for the same time period for the same child. Either parent or the child may move for such an order at any time before the child attains the age of twenty-one years. The order for postsecondary education support may not extend beyond the earlier of the child's twenty-first birthday or the completion of an undergraduate degree. The court may order the support paid directly to the educational institution, to the child, or in such fashion as is appropriate to support the education of the child.

Id.

2) Are Child Support Arrearages the Property of the Custodial Parent or the Child?

The Colorado Court of Appeals has followed the Utah Supreme Court in State ex rel. Utah State Department of Social Services v. Sucec, 924 P.2d 882, 886 (Utah 1996), wherein it determined that a parent could assign to a private child support collection agency her past-due child support claims. See In re the Marriage of Paul, 978 P.2d 136 (Colo. Ct. App. 1998), rehrg. denied June 11, 1998, cert. denied June 4, 1999. In determining the assignability issue, the Utah court drew a distinction between current and ongoing support on the one hand, and past-due support on the other. It reasoned that, unlike the rights to current and future support which belong to the child, a claim for reimbursement of past-due support belongs to the person who provided that support: "[T]hat person is free to assign the debt, just as she is free to discharge, settle, or negotiate the debt." State ex rel. Utah State Department of Social Services, 924 P.2d at 886. The Colorado Court of Appeals agreed with the Utah court's analysis in concluding that mother's assignment of the claim for reimbursement of past-due child support was effective. Therefore, the Colorado Court of Appeals appears to consider child support arrearages to be the parent's property.

3) Who is the Proper Party to Bring Legal Action to Obtain Child Support Arrearages?

"The general rule [in Colorado] is that child support payments become judgments when due." In re Marriage of Lishnevsky, 981 P.2d 609, 611 (Colo. Ct. App. 1999).

In Colorado, most actions regarding child support arrearages are brought by the custodial parent, the noncustodial parent, or an assignee. See, e.g., In re the Marriage of Paul, 978 P.2d 136; Santarelli v. Santarelli, 839 P.2d 525 (Colo. Ct. App. 1992); Treaster v. Laird, 519 P.2d 1231 (Colo. Ct. App. 1974); Jenner v. Jenner, 330 P.2d 544 (Colo. 1958) (en banc).

However, the Colorado Court of Appeals has held that a minor child has standing to seek support for herself for child support arrearages. See , In re the Marriage of Conradson, 604 P.2d 701, 703 (Colo. Ct. App. 1979) (minor child brought action against custodial parent, who was custodial parent by virtue of a stipulation and court order, who was in arrears on his support obligation even though child had not in fact been in his custody and, instead, had actually been in custody of an aunt) (citing Colo. Rev. Stat. '' 14-10-115 (providing that the court may order either or both parents "to pay an amount reasonable or necessary for [child] support," and imposing no restriction as to whom the payment is to be made), 14-10-116 (authorizing the court, on motion of either party or, as here, on its own motion, to appoint an attorney to represent the interests of a minor child with respect to his custody, support, or visitation)); see also Abrams v. Connolly, 781 P.2d 651 (Colo. 1989) (holding when minor child's claim for child support from noncustodial parent is brought to court's attention by an adult acting on child's behalf, any judgment for past child support should be entered in favor of the child, since it is the child's entitlement to support, not next friends, which is the legal predicate for the judgment); COLO. R. COUNTY AND COURT P. Rule 317 (2001).

4) Emancipated Child's Rights as Opposed to a Minor Child's Rights.

We could not discern any difference between an emancipated child and a minor child regarding their rights to child support arrearages and their rights to bring legal action to obtain child support arrearages in Colorado, except that a minor child may be required to bring a legal action through a fiduciary, guardian ad litem or next friend. See COLO. R. COUNTY AND COURT P. Rule 317 (2001).

Montana

1) Age of Majority for Purposes of Support Obligations.

"A person 18 years of age or older is an adult for all purposes." MONT. CONST. ART. 2 ' 14 (2000). "Provisions for the support of a child are terminated by emancipation of the child or the child's graduation from high school if the child is enrolled in high school, whichever occurs later, but in no event later than the child's 19th birthday," unless otherwise agreed. MONT. CODE ANN. ' 40-4-208(5) (2000).

2) Are Child Support Arrearages the Property of the Custodial Parent or the Child?

The Montana Supreme Court has stated that, as per a divorce decree, child "support is to be paid to the custodial parent for the purpose of aiding the child" and the noncustodial parent "cannot discharge his duty by giving the money to the child directly." Willoughby v. Loomis, 869 P.2d 271, 278 (Mont. 1994). A parent or guardian is not necessarily considered the person to whom child support is owed in all cases. See MONT. CODE ANN. ' 40-4-204(1), (8), (9) (2000). For example, a district court order that "establishes or modifies a child support obligation must include a provision requiring the child support obligation to be paid" to the person with whom the child resides; or person, organization, or agency to whom physical custody has been relinquished or that is entitled to receive or collect the child support obligation; or to the court for the child's benefit. See id. ' 40-4-204(8)(a)(iv).

Although child support may not be owed directly to the child, the Montana Supreme Court has held that "the real beneficiaries of a judgment [for past due child support] are the children, not the person named in the judgment." In re Marriage of Sabo, 730 P.2d 1112, 1114 (Mont. 1987). Further, as recently as October 2000, the Montana Supreme Court has held that "[t]he right of the children, as interested and affected parties are to be served and protected" as concerns recovery of child support arrearages. Schmitz v. Engstrom, 13 P.3d 3842 (Mont. 2000); see In re Marriage of Petranek, 843 P.2d 784, 786-87 (Mont. 1992) (same).

Therefore, it appears that the custodial parent has an interest administrating child support arrearages in the best interests of the child and the child has an interest in benefitting from the payment of child support arrearages. This arrangement is akin to that of a trustee and a beneficiary of a trust.

3) Who is the Proper Party to Bring Legal Action to Obtain Child Support Arrearages?

"Child support which is due under a dissolution decree and which is unpaid becomes a judgment debt similar to any other money judgment.@ In re Marriage of Sabo, 730 P.2d 1112, 1113 (Mont. 1986) (citations omitted); see In re Marriage of Brown, 867 P.2d 381, 383-84 (Mont. 1994).

Montana case law reflects actions by custodial parents, noncustodial parents, and assignees concerning child support arrearages. See, e.g., Schmitz v. Engstrom, 13 P.3d 38 (Mont. 2000); In re Marriage of Petranek, 843 P.2d 784 (Mont. 1992); In re Marriage of Hewitt, 791 P.2d 444 (Mont. 1990). Additionally, Montana law provides that "[a] minor may enforce his rights by civil action or other legal proceedings in the same manner as a person of full age, except that a guardian must conduct the same." MONT. CODE ANN. ' 41-1-202 (2000); see also Herrig v. Herrig, 648 P.2d 758 (Mont. 1982) (two emancipated and one minor child brought suit against deceased father's second wife seeking to obtain portion of life insurance proceeds where father had offered to maintain a life policy in a certain amount on behalf of his children at least until the youngest child reached her age of majority in exchange for lowered support payments). Therefore, we assume a minor may bring a legal action through a guardian for child support arrearages in which the minor has an interest.

4) Emancipated Child's Rights as Opposed to a Minor Child's Rights.

We could not discern any difference between an emancipated child and a minor child regarding their rights to child support arrearages and their rights to bring legal action to obtain child support arrearages in Montana, except that a minor child may be required to bring a legal action through a guardian. See MONT. CODE ANN. ' 41-1-202 (2000).

North Dakota

1) Age of Majority for Purposes of Support Obligations.

A judgment or order requiring the payment of child support until the child attains majority continues as to the child until the end of the month during which the child is graduated from high school or attains the age of nineteen years, which ever occurs first, if . . . the child is enrolled and attending high school and is eighteen years of age prior to the date the child is expected to graduate; and . . . the child resides with the person to whom the duty of support is owed.

N.D. CENT. CODE ' 14-09-08.2(1) (1999).

2) Are Child Support Arrearages the Property of the Custodial Parent or the Child?

Notably, section 14-09-08.2(1)(b) of the North Dakota Century Code indicates, the "duty of support is owed" to a child's custodian. Additionally, the North Dakota Supreme Court has affirmed an award of back benefits to a noncustodial parent for an interim period of custody. See Ackerman v. Ackerman, 596 N.W.2d 332, 336-37 (N.D. 1999). Because the back child support was to be paid to the then noncustodial parent, we could assume it was for reimbursement of past child support expenses, rather than for the present use and benefit of the children. Such a holding implies the back child support is the property of the parent to whom is was owed. See id. We could further assume back child support is analogous to child support arrearages. We could find no State legal precedent as to whether child support arrearages are the property of the custodial parent or the child.

3) Who is the Proper Party to Bring Legal Action to Obtain Child Support Arrearages?

Any child support order is, "on and after it is due and unpaid . . . , a judgment by operation of law." N.D. CENT. CODE ' 14-08.1-05 (1999); see Baranyk v. McDowell, 442 N.W.2d 423, 425- 26 (N.D. 1989) "Failure to comply with the provisions of a judgment or order of the court for the support of a child constitutes contempt of court." Id. ' 14-08.1-05(2); see also Id. ' 14-17-16(3). AAn obligation for child support may be asserted by a civil action.@ N.D. CENT. CODE ' 14-08.1-02 (1999).

North Dakota case law primarily reflects actions brought by custodial parents, noncustodial parents, and assignees concerning child support arrearages. See, e.g., Darling v. Gosselin, 589 N.W.2d 192 (N.D. 1999); Hallock v. Mickels, 568 N.W.2d 277 (N.D. 1997); Mehl v. Mehl, 545 N.W.2d 777 (N.D. 1996); Johnson v. Johnson, 527 N.W.2d 663 (N.D. 1995); Fuson v. Schaible, 494 N.W.2d 593, 595 (N.D. 1992). However, "[a] minor may enforce the minor's rights by civil action or other legal proceedings in the same manner as an adult, except that a guardian ad litem must be appointed to conduct the same." N.D. CENT. CODE ' 14-10-04 (1999). Further, the North Dakota Supreme Court has indicated a child has an interest in the obligation of child support and may be a party to an action for child support arrearages. See Fusion v. Schaible, 494 N.W.2d 593, 598 (N.D. 1992) (mother brought action for child support arrearages after children were emancipated); see also In the Interest of K.B., 490 N.W.2d 715 (N.D. 1992) (minor, former wife, and minor's guardian brought paternity and support action against putative father). Therefore, we assume a minor may bring a legal action for child support arrearages in which the minor has an interest.

4) Emancipated Child's Rights as Opposed to a Minor Child's Rights.

We could not discern any difference between an emancipated child and a minor child regarding their rights to child support arrearages and their rights to bring legal action to obtain child support arrearages in North Dakota, except that a minor child may be required to bring a legal action through a guardian ad litem. See N.D. CENT. CODE ' 14-10-04 (1999).

South Dakota

1) Age of Majority for Purposes of Support Obligations.

"The parents of any child are under a legal duty to support their child . . . until the child attains the age of eighteen, or until the child attains the age of nineteen if he is a full-time student in a secondary school." S.D. CODIFIED LAWS ' 25-5-18.1; see also Id. ' 25-1-1 (a minor is a person under the age of 18).

2) Are Child Support Arrearages the Property of the Custodial Parent or the Child?

The South Dakota Supreme Court has held section 25-1A-17 of the South Dakota Codified Laws "is designed to restrict a party's ability to contract away a duty of support." Vander Woude v. Vander Woude, 501 N.W.2d 361, 363-64 (S.D. 1993) (citing Sharp v. Sharp, 422 N.W.2d 443, 447 (S.D. 1988); see also Houser v. Houser, 535 N.W.2d 882, 884-85 (S.D. 1995). Thus, the court held the custodial parent and noncustodial parent may not validly contract or otherwise agree to a forgiveness of child support arrearages without the approval of the court. See Vander Woude, 501 N.W.2d at 364. The court explained the child support arrearages were "for the children's benefit and not a debt due [the custodial parent] per se." Id. Because the custodial parent is not permitted to freely negotiate child support arrearages, we conclude child support arrearages are not the custodial parents' property.

3) Who is the Proper Party to Bring Legal Action to Obtain Child Support Arrearages?

"Any unpaid support bec[omes] an unpaid judgment against [the payer spouse] as a matter of law, not subject to retroactive modification." Houser, 535 N.W.2d at 885 (citing S.D. CODIFIED LAWS '' 25-7-7.3, 25-7-7.4).

In South Dakota, generally, actions have been brought by the custodial parent, the noncustodial parent, or an assignee in actions concerning child support arrearages. See, e.g., O'Grady v. O'Grady, 582 N.W.2d 707 (S.D. 1998); Houser, 535 N.W.2d 882; Office of Child Support Enforcement v. Schutz, 311 N.W.2d 208 (S.D. 1981). "A minor may enforce his rights by civil action, or other legal proceedings, in the same manner as a person of full age. However, a guardian or conservator must be appointed to conduct the same." S.D. CODIFIED LAWS ' 26-1-3 (2000). Therefore, we assume a minor may bring a legal action for child support arrearages in which the minor has an interest.

4) Emancipated Child's Rights as Opposed to a Minor Child's Rights.

We could not discern any difference between an emancipated child and a minor child regarding their rights to child support arrearages and their rights to bring legal action to obtain child support arrearages in South Dakota, except that a minor child is required to bring a legal action through a guardian or conservator. See id.

Utah

1) Age of Majority for Purposes of Support Obligations.

A child becomes emancipated for purposes of child support when the child attains "18 years of age, or has graduated from high school during the child's normal and expected year of graduation, whichever occurs later." UTAH CODE ANN. ' 78-45-7.10(1) (2000); see also id. ' 15-2-1 ("The period of minority extends . . . to the age of eighteen years; but all minors obtain their majority by marriage . . . . [C]ourts in divorce actions may order support to age 21"). Additionally, the Uniform Civil Liability for Support Act, 78-45, provides a parental obligation of support for a child of any age where that child is incapacitated and without means of self-support. See Kiesel v. Kiesel, 619 P.2d 1374 (Utah 1980).

2) Are Child Support Arrearages the Property of the Custodial Parent or the Child?

As indicated above, in 1996, the Utah Supreme Court determined that a parent could assign to a private child support collection agency her past-due child support claims. See State ex rel. Utah State Department of Social Services, 924 P.2d 882. In determining the assignability issue, the Utah court drew a distinction between current and ongoing support on the one hand, and past-due support on the other. See id. at 886. It reasoned that, unlike the rights to current and future support which belong to the child, a claim for reimbursement of past-due support belongs to the person who provided that support: "[T]hat person is free to assign the debt, just as she is free to discharge, settle, or negotiate the debt." Id.

3) Who is the Proper Party to Bring Legal Action to Obtain Child Support Arrearages?

In the State of Utah, "[c]hild support payments become unalterable debts as they accrue. Cummings v. Cummings, 821 P.2d 472, 480 (Utah Ct. App. 1991). In fact, "[e]ach payment or installment of child . . . support under any child support order . . . is, on and after the date it is due . . . a judgment with the same attributes and effect of any judgment of a district court." UTAH CODE ANN. ' 78-45-9.3(3)(a)(2000).

Generally, in the State of Utah, custodial parents, noncustodial parents, or assignees brought actions concerning child support arrearages. See, e.g., Werner-Jacobsen v. Bednarik, 946 P.2d 744 (Utah Ct. App. 1997); Coulon v. Coulon, 915 P.2d 1069 (Utah Ct. App. 1996); Larsen v. Larsen, 340 P.2d 421 (Utah 1959). A minor may bring a legal action; however, "[a] minor . . . who is a party must appear either by a general guardian or by a guardian ad litem appointed in the particular case by the court in which the action is pending." Utah R. CIV. P. Rule 17(b) (1999). When the minor is plaintiff and at least fourteen years of age, the minor may apply to the court within 20 days after the service of the summons for appointment of a guardian ad litem. See id. Rule 17(c). If the minor is younger than fourteen years of age, the court will appoint a guardian ad litem upon application of a relative or friend of the minor, or of any other party to the action. See id. Therefore, we assume a minor may bring a legal action for child support arrearages in which the minor has an interest.

4) Emancipated Child's Rights as Opposed to a Minor Child's Rights.

We could not discern any difference between an emancipated child and a minor child regarding their rights to child support arrearages and their rights to bring legal action to obtain child support arrearages in Utah, except that a minor child is required to bring a legal action through a guardian ad litem. See id.

Wyoming

1) Age of Majority for Purposes of Support Obligations.

"Upon becoming eighteen (18) years of age, an individual reaches the age of majority." WYO. STAT. ANN. ' 14-1-101 (2000).

A parent's legal obligation for the support of his or her children . . . continues past the age of majority in cases where the children are . . . mentally or physically disabled and thereby incapable of self-support; and between the age of majority and twenty (20) years and attending high school or an equivalent program as full-time participants.

Id. ' 14-2-204(a)(I), (iii).

2) Are Child Support Arrearages the Property of the Custodial Parent or the Child?

In the State of Wyoming, child support arrearages are not considered an asset of the custodial parent, "but is the children's money which the parent administers in trust for the children's benefit." Hurlbut v. Scarbrough, 957 P.2d 839, 842 (Wyo., Apr 24, 1998) (custodial parent was not required to list child support arrearages as an asset in bankruptcy and her agreement with the noncustodial parent forgiving his obligation to pay back child support was "void and unenforceable because it was against public policy").

3) Who is the Proper Party to Bring Legal Action to Obtain Child Support Arrearages?

In 1989, the Wyoming legislature "codified the common law principle that periodic child support payments are judgments arising by operation of law." Hurlbut, 957 P.2d at 843 (citing WYO. STAT. ANN. 1-16-102(c)).

Generally in Wyoming, custodial parents, noncustodial parents, and assignees have brought actions concerning child support arrearages. See, e.g., Stone v. Stone, 7 P.3d 887 (Wyo. 2000); Hurlbut, 957 P.2d 839; Hollingshead v. Hollingshead, 942 P.2d 1104 (Wyo. 1997). However,

whenever a minor . . . has a representative, such as a guardian, conservator, or other like fiduciary, the representative may sue or defend on behalf of the minor . . . If a minor or an incompetent person does not have a duly appointed representative, or such representative fails to act, the minor or the incompetent person may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for a minor . . . not otherwise represented in an action or shall make such other order as it deems proper for the protection of the minor . . . .

WYO. STAT. R. CIV. P. Rule 17(c) (2000). Additionally, "[e]very person over fourteen (14) years of age and under the age of majority, when subject to no disability other than being a minor, may sue and be sued," WYO. STAT. ANN. ' 1-1-102 (2000). Therefore, we assume a child could bring an action for child support arrearages.

4) Emancipated Child's Rights as Opposed to a Minor Child's Rights.

We could not discern any difference between an emancipated child and a minor child regarding their rights to child support arrearages and their rights to bring legal action to obtain child support arrearages, except that a minor child over the age of fourteen is required to bring a legal action through a next friend. See id.

Sincerely,

Deana R. Ertl-L~
Regional Chief Counsel,
Region VIII, Denver

By_________________________
Michele M. K~
Assistant Regional Counsel


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PS 01415.049 - Utah - 03/09/2006
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