PAINE VS. PAINE (CHILD SUPPORT)

Key holdings

Practitioner summary

The father appealed from an order modifying the divorce decree to increase his contribution to the children's support. The 1952 decree approved a New York settlement agreement (which survived and was not merged into the decree) allocating the children's expenses: the husband bore enumerated expenses (schooling, camp, special education, travel, and an escalating clothing/personal allowance), while 'as to all other expenses' each parent would support the child then residing with him or her. After the mother obtained custody of both children, she moved for substantial additional contribution from the father, which the trial court granted. The court's jurisdiction to act derives from sec. 9462, N.C.L. 1943-1949 Supp., permitting orders for custody, care, education, maintenance, and support of minor children as may seem necessary or proper, the purpose being to protect the welfare and interest of minor children. Elsman v. Elsman, 54 Nev. 20, 2 P.2d 139, 3 P.2d 1071, 10 P.2d 963. Here, it was conceded that both parties were independently wealthy and fully able to provide suitable support, and that the mother was providing it; the order's true effect was not to provide more suitable support but to relieve the mother of her contractual obligation. Because the children's needs and interests were in no way involved and could not be affected by the decision, there was nothing upon which the court's discretion could properly operate, and to exercise discretion absent such a basis is error; the proceeding was in substance an attempt by the wife to avoid a binding contractual obligation. LaRue v. Kempf, 186 Mo. App. 57, 171 S.W. 588 (1914); Wilson v. Wilson, 271 Ky. 631, 112 S.W.2d 980 (1938); Parkhurst v. Parkhurst, 118 Cal. 18, 50 P. 9 (1897). The court set the order aside and directed that the motion for modification be denied.

In plain language

When this wealthy couple divorced in 1952, their carefully negotiated New York settlement agreement (with lawyers and an independent arbitrator) set out who would pay the children's expenses. The husband agreed to pay for the children's schooling, camp, special education, travel, and a clothing/personal allowance; but 'as to all other expenses,' each parent would pay the expenses of whichever child was then living with him or her. The decree approved the agreement but said it survived and was not merged into the decree. The father originally had custody of one daughter and the mother the other; later the mother obtained custody of both children, then moved the court to require the father to contribute substantially more toward their support. The trial court granted that increase, and the father appealed. The Nevada Supreme Court reversed. It recognized the court's continuing statutory power to modify child support to protect the welfare and interests of minor children. But here it was conceded that both parents were independently wealthy and fully able to provide suitable support, and that the mother was in fact providing it. So the increase would not give the children better support than they could otherwise expect; its real effect was simply to relieve the mother of her contractual obligation and shift it to the father. Because the children's needs and interests were not actually involved, there was nothing on which the court's discretion could properly operate, and exercising discretion without such a basis was error. The court set the order aside and directed that the motion for modification be denied.