October 30, 2013 § 2 Comments
A young lawyer told me a couple of weeks ago that a woman called her and asked what was the age when a child was no longer entitled to child support. “Twenty-one” was the lawyer’s reply. To which the caller responded, “No, you’re wrong; it’s 23.”
No matter how firmly convinced she was, the caller was firmly wrong, so far as Mississippi law is concerned. Emancipation for all purposes occurs at age 21, unless the parents contracted to support the child to a later age.
In Archie v. Archie, decided by the COA on October 15, 2013, Amos Archie was ordered by the court to pay child support, health insurance, and college expenses for two children, both of whom were over the age of 21. In reversing, the COA, by Judge Barnes, said this:
¶14. A parent has no statutory or common-law duty to support a child who has reached the age of majority. See Hays v. Alexander, 114 So. 3d 704, 707 (¶12) (Miss. 2013). “Legally, a parent is relieved of the duty to support his child once the child is emancipated whether by attaining the age of majority or otherwise.” Meek v. Warren, 726 So. 2d 1292, 1293 (¶2) (Miss. Ct. App. 1998) (citing Nichols v. Tedder, 547 So. 2d 766, 770 (Miss. 1989)).
¶15. Under Mississippi Code Annotated sections 93-5-23 and 93-11-65 (Supp. 2012), a chancellor may make a determination that a child has become emancipated when the child has reached twenty-one years of age. If such a determination is made, then “[t]he duty of support of a child terminates upon the emancipation of the child.” Miss. Code Ann. § 93-5-23. Furthermore, the Mississippi Supreme Court held that:
In the absence of a determination of emancipation in a child-support judgment, a child is freed for all the period of his minority from the care, custody, control, and service of his parents (i.e., he is emancipated) upon attaining the age of twenty-one, at which time Mississippi statute provides that his minority terminates. Accordingly, the duty imposed by [Mississippi Code Annotated s]ection 93-5-23 for a parent to support [a] child does not extend beyond the child’s minority, which terminates when the child reaches twenty-one years of age, as provided by our Legislature.
Hays, 114 So. 3d at 709 (¶14) (Miss. 2013) (internal citations and emphasis omitted).
As for the order to maintain health insurance:
¶17. We also find that the order for Amos “to maintain in full force and effect health and life insurance for the children” is erroneous. The supreme court has noted that “[i]nsurance coverage for the benefit of children in divorce cases is an issue of child support.” Arthur v. Arthur, 691 So. 2d 997, 1001 (Miss. 1997) (citing Brennan v. Brennan, 638 So. 2d 1320, 1325 (Miss. 1994)). Absent compelling reasons, such as the mental or physical incapacitation of a child, the obligation of a parent ordered to maintain insurance for the benefit of a minor child ceases when the child reaches majority. Id.
And, finally, with regard to the college education support order:
¶18. Lastly, the chancellor ordered Amos “to pay one-half (50%) of all college expenses for both children, Brittney and [Corey].” The supreme court has stated:
[I]f the [college education] benefit is awarded as child support, that right terminates when the child becomes emancipated[,] . . . but if it is awarded as an adjustment of the rights between the parties to the divorce as to who shall share or pay what portion of the expense of a college education, then the right vests and does not terminate although the child does not enjoy that benefit until he may have passed the age of 21.
Stokes v. Maris, 596 So. 2d 879, 881 (Miss. 1992); see also Crow v. Crow, 622 So. 2d 1226, 1230 (Miss. 1993) (finding that a parent was contractually bound by an agreement to provide “post-emancipation support in the form of college and other expenses”). However, while contractual agreements to provide post-emancipation support during a child’s college attendance are enforceable, there is no such agreement in the present case. Thus, we find that the chancellor erred in ordering Amos to pay for college expenses for both children. [Footnotes omitted]
What is important to take away from this case is that, since Nichols v. Tedder, the MSSC has consistently hewed to the line that emancipation occurs at age 21, unless adjudicated earlier, and that, in the absence of a contract to the contrary, the benefits of minority can not be extended by a trial court beyond that age. That’s important to bear in mind, no matter how firmly convinced and insistent your client seems to be.