Next Step for Adult Disabled Children?

December 9, 2013 § 3 Comments

NOTE … If you have any interest at all in this issue, you should read Paul Snow’s comment to this post.

I posted here about the MSSC case, Hays v. Alexander, which I thought may have laid to rest the issue of a court-created duty of support for adult disabled children.

Well, hold on while I slam on the brakes, and I hope I’m not giving anybody whiplash.

This appeared on the MSSC decisions web page last Thursday:

EN BANC
2012-CA-01085-SCT

John W. Ravenstein v. Elisha Ravenstein (Hawkins)

      ; Madison Chancery Court; LC Case #: 96-350-B; Ruling Date: 04/18/2012; Ruling Judge: Cynthia Brewer; Disposition: On the Court’s own motion, the parties are directed to file the original and nine copies of supplemental briefs, and to serve a copy of the briefs on the Office of the Attorney General, addressing whether equal protection would be violated by an interpretation that child support may not be ordered for adult children who are mentally or physically incapable of self-support under Sections 93-5-23 and 93-11-65, given the mandate of Section 43-19-33 that a certain class of people may receive such support, due on the following schedule: within 30 days of the entry of this order John shall file his supplemental brief which shall not exceed 25 pages; within 30 days of the service of John’s supplemental brief, Elisha shall file her supplemental brief which shall not exceed 25 pages; and within 14 days of the service of Elisha’s supplemental brief, John may file a supplemental reply brief which shall not exceed 10 pages. The Clerk of this Court shall serve a copy of this order on the attorneys of record, as well as on the Office of the Attorney General. If the Attorney General chooses to file a brief, it shall be due within 30 days of the service of Elisha’s supplemental brief and shall not exceed 25 pages. Lamar, J., Disagrees. Order entered.

It appears this particular case is a matter of statutory interpretation, not a request for the court to create a remedy. It’s an interesting possible development.

Stay tuned.

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§ 3 Responses to Next Step for Adult Disabled Children?

  • paul snow says:

    I attended the oral arguments in this case. Attached is a copy of my thoughts on the issue(s) that I prepared regarding the questions at oral argument by the supreme court.

    THE MISSISSIPPI LEGISLATURE HAS ALREADY
    AMENDED THE PROPER CODE SECTION TO ALLOW THE
    CHANCELLOR TO FIND THAT UNDER CERTAIN CIRCUMSTANCES
    THERE IS AN EXCEPTION TO THE GENERAL RULE THAT SOMEONE
    AUTOMATICALLY BECOMES EMANCIPATED AT THE AGE OF 21 YEARS
    The code section in question is §93-11-65(8)(a)(b). The legislature amended this code
    section to add the words “unless otherwise provided for in the underlying child judgment.”
    Additionally, the legislature added the words in §93-11-65(8)(a)(b)(i) “unless the child is disabled.”
    These two phrases added to this statute explicitly authorize chancellors to make a finding based upon
    the facts at trial that the person in question, whether disabled by physical or mental disability, is in
    fact an exception to the general rule that a minor automatically becomes emancipated at the age of
    21 years. In other words, not all minors who turn 21 years are automatically emancipated. Some
    exceptions to the general rule must be provided for and this is exactly what the legislature did when
    they amended this code section to add these phrases. There would be no other reason why the
    legislature added these phrases to the statute other than to allow for an exception to the general rule.
    Everyone agrees that the duty of support ends with emancipation of the child. The plain
    language of the statute gives our chancery courts latitude to determine under what circumstances
    emancipation occurs. When a child is under a mental or physical disability which renders the child
    incapable of self-support, the presumption of emancipation at age 21 may be overcome. As everyone
    knows, a presumption is subject to being rebutted by the facts of any specific case. [For example,
    some people who are paralyzed from the neck down may be able to attend college and be a
    productive citizen. We are not talking about these type of people and the chancellor can rule whether
    or not these people are mentally disabled and/or dependent.] A child who is so mentally disabled
    as to render him incapable of self-support, and who is thus dependent on one or both of his parents,
    clearly is not free from the “care, custody, control and service of his parents.”
    The statute explicitly gives the courts the authority to determine when emancipation occurs
    with regard to child support ordered pursuant to a divorce proceeding. The statute also states that
    emancipation occurs unless the court provides otherwise in the underlying child support judgment.
    This provision clearly gives the courts the latitude to make provisions regarding emancipation in
    their child support judgments other than those situations outlined in the statute. [This is exactly what
    Judge Lutz ruled in the case at bar.]
    The plain language of the statute grants the courts the latitude to determine when
    emancipation occurs. Emancipation does not automatically occur when someone reaches the age
    of 21 when that child labors under a mental disability rendering him or her incapable of self-support.
    The rule should be that if the disability occurs before emancipation and renders the child unable to
    Page 2 of 13
    be emancipated, such a duty continues so long as the child remains unemancipated. [In the case at
    bar, it is undisputed that Ryan will be permanently unemancipated because of his permanent mental
    condition.]
    The majority of other states have made emancipation a rebuttable presumption and/or have
    carved out an exception to the emancipation rule.1
    The majority of states impose a duty of support on parents of adult disabled children,
    particularly when the child was disabled during his or her minority. Some states impose a duty by
    statute, some states by case law, and some by common law. See for example, Ex Parte Brewington,
    445 So.2d 294 (Ala. 1983) (interpreting “children” in the child support statute to mean “dependent”
    children, not “minor” children, thus including children whose dependency results “from physical
    The majority of states impose a duty of support on parents of adult disabled children, particularly 1 when the
    child was disabled during his or her minority. Some states impose such a duty via statute, with some of the statutes
    merely codifying earlier court decisions or common law to impose a duty of support for adult disabled children. See,
    e.g., Ariz.Rev.Stat. Ann. 25-320(E); Ark.CodeAnn. 9-12-312(a)(5)(B); Cal. Fam.Code 3910(a); Colo.Rev.Stat. Ann.
    14-10-115(B)(a)(II); Fla. Stat. Ann. 743.07(2); Haw.Rev.Stat. Ann. 580-47(a); 750 III. Comp. Stat. Ann.
    5/513(a)(1); Ind.Code Ann. 31-16-6-6(a)(2); Iowa Code Ann. 252A.3(3); Ky.Rev.Stat. Ann. 405.020(2); Minn.Stat.
    Ann. 518A.26 (Subd. 5); Mo. Ann. Stat. 452.340(4); Nev.Rev.Stat. Ann. 125B.110; N.H.Rev.Stat. Ann.
    461-A:14(IV) & (XVI); N.J. Stat. Ann. 2A:34-23(a); N.D. Cent.Code 14-09-08.2(6); Ohio Rev.Code Ann.
    3119.86(A)(1); Okla. Stat. Ann. tit. 43 112.1 A; 23 Pa. Cons.Stat. Ann. 4321(3); R.I. Gen. Laws 15-5-16.2;
    S.C.Code Ann. 63-3-530(A)(17) (granting court jurisdiction over cases regarding support of adult disabled child, but
    not creating such a duty); Tenn.Code Ann. 36-5-101 (k); Tex. Fam.Code Ann. 154.066(a)(4); Va.Code Ann.
    20-124.2©; Wyo. Stat. Ann. 14-2-204(a)(l). In the absence of a statute, many courts impose such a duty. See, e.g.,
    Ex Parte Brewington, 445 So.2d 294 (Ala. 1983) (interpreting ” children” in the child support statute to mean ”
    dependent” children, not” minor” children, thus including children whose dependency results ” from physical and/or
    mental disabilities that continue to render them incapable of self-support beyond majority”); Streb v. Streb, 774 P.2d
    798 (Alaska 1989) (“the presumption of emancipation may be overcome by evidence that an adult child is incapable
    of supporting himself or herself by reason of a physical or mental disability”); Nelson v. Nelson, 548 A.2d 109
    (D.C.1988); Sininger v. Sininger, 300 Md. 604, 479 A.2d 1354 (1984); Feinberg v. Diamant, 378 Mass. 131, 389
    N.E.2d 998 (1979); Maberry v. Maberry, 183 Mont. 219, 598 P.2d 1115 (1979); Cohn v. Cohn, 123 N.M. 85, 934
    P.2d 279 (N.M.App.1996); Riggs v. Riggs, 353 S.C. 230, 578 S.E.2d 3 (2003) (interpreting statute granting court
    jurisdiction over cases of support of an adult disabled child and finding that” [w]here … disability prevents the child
    from becoming emancipated, the presumption of emancipation upon reaching majority is inapplicable”); Dehm v.
    Dehm, 545 P.2d 525 (Utah 1976) (defining ” children” to include incapacitated children and noting the highly
    equitable nature of divorce proceedings); Casdorph v. Casdorph, 194 W.Va. 490, 460 S.E.2d 736 (1995). See also
    M.C. Dransfield, Annotation, Parent’s Obligation to Support Adult Child, 1 A.L.R.2d 910 (1948); Noralyn O.
    Harlow, Annotation, Postmajority Disability as Reviving Parental Duty to Support Child, 48 A.L.R.4th 919 (1986).
    Page 3 of 13
    and/or mental disabilities that continue to render them incapable of self-support beyond majority”).
    In Streb v. Streb, 774 P.2d 798 (Alaska 1989) (“the presumption of emancipation may be overcome
    by evidence that an adult child is incapable of supporting himself or herself by reason of a physical
    or mental disability”). The great majority of American jurisdictions in which the statutory law is
    silent has recognized an exception where the child is unable to care for itself upon attaining majority.
    This view is rested on common law developments.
    This court’s duty under the constitution is to apply the law as it is written. Falco Lime, Inc.
    v. Mayor and Aldermen of Vicksburg, 836 So.2d 711, 725 (Ms. 2002). To give any effect at all to
    the express statutory language that a court may determine that emancipation occurred at age 21, one
    must allow that the court has the power to determine that emancipation does not occur at age 21
    under certain circumstances. To decide that emancipation shall occur at the age of 21, no matter
    what a court determines, violates the separation of powers clause by rewriting the statute.
    §93-11-65(8)(a) states that: “Unless otherwise provided for in the underlying child support
    judgment,” means the chancellor can provide differently than the statute if it is done so in the
    underlying child support judgment, which is exactly what happened in the case at bar. When Judge
    Lutz ordered that child support payments shall be for life and that order became final, there is
    nothing else to argue. Subsection (b) states: “Unless otherwise provided for in the underlying child
    support judgment,” again the legislature stating that the chancellor can make provisions in the child
    support judgment which is in compliance with the legislative statute herein. Subsection (i) also
    identifies an exception when a child is disabled. Again, the statute authorizes the chancellor to make
    specific rulings when there is a disabled child. Otherwise, there would not be any reason to put these
    phrases in the statute. So what we have in the case at bar is a permanently disabled child who just
    Page 4 of 13
    turned twenty-one (21), who will never be able to take care of himself. If this statute doesn’t give
    a chancellor authority to take care of these situations, then no statute will. The Supreme Court’s job
    is to interpret the statutes. The statutes gave authority for exceptions to the general rule. This case
    comes specifically under that exception to the general rule and the facts are undisputed concerning
    the same in the lower court and on appeal. There is no legitimate reason why the decisions in
    Mississippi should require illegitimate adult disabled children to be supported by their father and not
    legitimate adult disabled children. The same defies common-sense and logic. See Hays v.
    Alexander, 114 So.2d 704 (Ms. 2013), fn. 5.
    II.
    HAYS V. ALEXANDER MUST BE OVERRULED
    AND/OR EXPLAINED AND/OR DISTINGUISHED
    The decision in Hays was the proper decision, but for the wrong reasons. In Hays, the facts
    of that particular case prove that the minor in question was in fact emancipated because he attended
    college. Also, the person who was asking for continued child support filed the request for relief after
    the age of 21 years. Anyone who alleges that they became disabled after emancipation should be
    precluded from making any claim herein. The particular facts of the Hays case clearly show that that
    child was not entitled to the relief and did not rebut the presumption of emancipation and did not
    come under the exception to the general rule.
    What’s confusing about the Hays opinion is the learned chancellor’s comments which were
    affirmed by this Honorable Court on appeal that there was no statutory authority to allow the judge
    to award support to the adult disabled child. This is in direct conflict with the express statutory
    language that allows for exceptions to the general rule. (See argument located above.) In essence,
    Page 5 of 13
    the holding in Hays states that there will never be an exception to the general rule and that there will
    never be a rebuttal presumption and that once someone turns 21 years of age they are automatically
    emancipated. The legislature has already carved out exceptions to the general rule allowing
    chancellors to make findings that sometimes hold in very specific particular cases that the
    chancellor does in fact have authority to rule that emancipation has not occurred. Otherwise, why
    would the legislature put these phrases into the statute? There is no legitimate reason why the
    legislature amended the statute other than to provide for an exception to the general rule. They are
    there for a reason and the reason is to allow the chancellors latitude to make exceptions when the
    facts of the particular case show that they are needed.
    Another reason why Hays should be overruled is because it violates the equal protection
    clause of the Mississippi Constitution. A putative father who has acknowledged paternity and is
    responsible for making child support payments for an illegitimate minor child is required to continue
    making support payments if the child has a disability that continues into adulthood. Miss. Code Ann.
    §43-19-33(3)(rev. 2004). (In the case of a child who, upon reaching the age of 21 years, is mentally
    or physically incapable of self-support, the putative father shall not be relieved of the duty of support
    unless said child is a long-term patient in a facility owned or operated by the State of Mississippi.)
    This violates the equal protection clause of the constitution. [In the case at bar, Ryan is living with
    his mother who has been taking care of him since he was born.]
    With all due respect, this Honorable Court must explain to the chancellors and the lawyers
    of Mississippi that there are in fact certain circumstances which justify the exception to the general
    rule that someone automatically becomes emancipated at the age of 21 years.
    Page 6 of 13
    The floodgates of litigation will not be opened. For example, there is only one case on the
    books in Mississippi that touches anywhere near this issue and that is Hays v. Alexander. In order
    to justify an exception to the general rule and/or a presumption against emancipation, there must be
    specific facts in the record to clearly show to the chancellor and this Honorable Court that this person
    is in fact in need of support. It’s a dependent person, not a minor person.
    For examples of situations which would not be an exception to general rule, take for example
    someone who is a quadriplegic but has their mental faculties to go to college or to work at a job. I’ve
    seen numerous people who have been either paraplegic or quadriplegic who can speak and perform
    some form of employment to support themselves. Also, we are not talking about minor children who
    for some unknown reason become disabled in the eyes of social security, but can actually function
    as an adult, be it drug addiction or any other problem in their life. We are specifically dealing with
    one type of situation where the proof shows to the chancellor the following:
    1. The minor child who turns 21 is dependent;
    2. The minor child who turns 21 cannot take care of themselves because of a
    mental or physical disability;
    3. The parents have the financial ability to support the minor child who turns
    21;
    4. The minor child who turns 21 is in need of that support; and,
    5. The chancellor makes a specific finding in the underlying child support
    judgment that the child is disabled and why.
    If these conditions are met, the chancellor should be allowed to make provisions for said
    minor child who becomes 21 years of age.
    Page 7 of 13
    Allowing this exception to the emancipation rule would not be the same thing for allowing
    parents to sue their children for support. This would not happen because in those situations the
    parents would not be under the jurisdiction of the chancery court in the beginning. In other words,
    they would be emancipated before they made their claim for support. Also, if the parents do not
    have the financial means or ability to support the dependent child, then the chancellor can take that
    fact into consideration at trial. If for some reason the dependent child obtained a multi-million dollar
    settlement as a result of some accident, then the chancery court can take that into consideration also.
    There are numerous factual scenarios which the chancellor should be allowed to consider. But to
    totally eliminate any consideration whatsoever and to preclude a chancellor from ever deciding that
    there are exceptions to the general rule should not be allowed in Mississippi or anywhere else. Other
    states have seen the light of day and have properly ruled in this matter and this Honorable Court
    should do the same.
    If this Honorable Court decides that Hays does not need to be overruled, then in that event,
    Hays needs to be distinguished. The particular facts of the case at bar clearly show the following:
    1. The father has stipulated that he has the financial ability to pay the $1,500 per
    month.
    2. That Ryan will never be emancipated because of his permanent mental
    disability.
    3. That Ryan needs the money for part of his support because he will never be
    able to work or attend school (As anyone knows who has ever taken care of
    someone who cannot care for himself at all, this is an all-consuming function
    so that you have no life for yourself and really must spend 110% of your time
    taking care of that person. This is exactly what Ryan’s mother has done for
    him since his birth. She has dedicated her life to taking care of her son.
    Don’t think for one minute that it only costs $1,500 per month to take care of
    this dependent person. It takes probably over $5,000 per month to care for
    Page 8 of 13
    Ryan and guess who is making up the difference–not the father–it’s the
    mother.)
    4. The claim herein for Ryan is by the conservatorship for Ryan and not by the
    mother. The money should be ordered to go into his conservatorship. As
    everyone knows, the proper procedure to make a claim for this support is
    through the conservatorship. See Taylor v. Taylor, 478 So.2d 310 (Ms. 1985)
    and Hays v. Alexander, 114 So.3d 704 (Ms. 2013).
    While we are talking about a conservatorship, remember that a conservatorship is required
    when someone turns 21 and they have to go the hospital or any other medical provider. Legal
    documentation is required to prove that the mother has authority to make medical decisions for this
    dependent person. Both federal and state regulations require the same.
    Because Hays v. Alexander is confusing at best, the same should be overruled, or in the
    alternative, this case should be distinguished from Hays and/or affirmed without opinion.
    Alternatively, this Honorable Court can rule that the father waived his rights to contest the judgment
    by the learned Chancellor Lutz by waiting 13 years within which to contest the same. If the learned
    Chancellor Lutz’s judgment only stated that child support will be awarded and did not mention
    emancipation, then there would be no reason for the father to appeal and then the issue would not
    be ripe until the minor child turned 21 years of age. However, that did not happen in the case at bar.
    In the case at bar, the learned Chancellor Lutz did in fact rule as a matter of fact that emancipation
    will never occur and that the father is ordered to pay child support as long as the child is not
    emancipated. A failure to appeal that judgment waives the same. The doctrine of laches applies
    herein also. See Estate of Winding v. Winding, 783 So.2d 707 (Ms. 2001).
    The failure of the ex-husband to appeal the decision back in 1998 which required him to pay
    child support for life is tantamount to an admission and/or default judgment not contesting those
    Page 9 of 13
    facts and findings of the chancellor. For example, suppose a lawsuit is filed naming the wrong father
    as a parent wherein the defendant was served with process, but failed to file an answer; and a default
    judgment was entered against that defendant. That defendant cannot wait thirteen (13) years later
    to come into court and say, “hey, I got a DNA test showing that I am not the father.” He should have
    presented those facts and proof at trial or filed something within six (6) months of the judgment via
    Rule 60 in order to overturn the judgment. None of that was done in the case at bar and the ex husband/
    father is bound by the chancellor’s decision in 1998 as a matter of law.
    III.
    THE CHANCERY COURT HAS SUBJECT MATTER JURISDICTION
    The chancery courts of Mississippi have subject matter jurisdiction in all matters dealing with
    non compos mentis whether they are under 21 or over 21 years of age. When they are under 21, these
    minor children are suffering under the disabilities of minority. When they are over 21, they are
    suffering the disabilities of being non compos mentis no matter what age they are. Additionally,
    because a conservatorship is involved, the chancery court does in fact have subject matter
    jurisdiction.
    The chancery court does in fact have subject matter jurisdiction to order support after 21
    years of age because the statute §93-11-65(8)(a) and (b) allows for the same. Also, the general
    statutes give the chancery court subject matter jurisdiction to require one parent and/or both parents
    to pay for college expenses of a child who has attained the age of 21 years and may order support
    after the age of 21 years. See Arthur v. Arthur, 691 So.2d 997 (Ms. 1997).
    As to the chancellor in the case at bar inadvertently using the wrong standard of care on the
    issue of appointing the mother as conservator, the same should be ruled: no harm–no foul. In other
    Page 10 of 13
    words, if this case is remanded for the chancellor to decide the issue of the conservator, all the
    chancellor will probably do is adopt the testimony at trial herein previously and then apply the proper
    legal standard of the best interests of the ward and rule the same way. This would just be a waste
    of time and money for everyone involved. See Hays v. Alexander, 114 So.2d 704 (Ms. 2013). This
    would be another reason why the case at bar should be affirmed without opinion.
    IV.
    CONCLUSION
    For the reasons stated above, Appellee respectfully requests this Honorable Court to
    acknowledge that there is an exception to the general rule that a minor automatically becomes
    emancipated at the age of 21 based on §93-11-65(8)(a) and (b). Hays v. Alexander should be
    overruled because §93-11-65(8)(a) and (b) allow for the chancellors to make exceptions to the
    general rule concerning emancipation. The facts of this particular case should be distinguished from
    Hays v. Alexander. This Honorable Court should affirm the chancellor in the lower court and write
    an opinion overruling Hays v. Alexander or affirm the opinion of the lower court and not write an
    opinion because of the particular facts of this case are distinguished from Hays v. Alexander.
    The floodgates of litigation will not be opened by establishing an exception to the general
    rule. For example, look at the cases where the chancellors have ordered that the parents pay for the
    child’s college tuition after the age of 21. There was not an opening of the floodgates of litigation
    concerning this small issue. Similarly, in the case at bar, there will be very few exceptions to the
    general rule and very few people who will qualify under the exception to the general rule. To order
    that all judges and litigants in Mississippi will never have an opportunity to make a claim under the
    exception to general rule is just not equitable.

    • Larry says:

      Wow. Thanks for the notes. I haven’t had the chance to review all of it, and I decided not to edit to correct the line breaks, so as to avoid changing the sense of it. Super job.

      • paul snow says:

        please make any changes that you think are necessary;also please call me when you get a chance. 601-969-1977

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