No. 14335 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

OLETHA R. CHRESTENSON, 

Plaintiff and Appellant, 

-vsEDWIN J. CHRESTENSON, 

Defendant and Respondent. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant: 

Klaus Sitte, Legal Services, argued, Missoula, Montana 

For Respondent : 

Raymond J. Fox argued, Missoula, Montana 

Submitted: December 14, 1978 

~ecided : JAN lug79 

Filed: 

: :y4J .,PLS - . 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Plaintiff appeals from a judgment and order of the District Court, Missoula County, dismissing with prejudice her 

petition for a contempt citation against defendant for failure 

to make child support payments. 

This appeal questions the effect on child support provisions, in divorce decrees entered prior to 1972, of Article 11, 

Section 14, 1972 Montana Constitution and its implementing statute, section 64-101, R.C.M. 1947, which establish age eighteen 

as the age of majority. The parties hereto were divorced on June 

5, 1963. Custody of their three minor children was awarded to 

plaintiff, and defendant was ordered to pay $150 per month in 

child support. Since the time the original decree was entered, 

two of the children have grown and left home, and several modifications of the support obligations have been made. The last 

modification occurred on July 15, 1975, when defendant was ordered 

to pay plaintiff $90 per month in support of the one child remaining with her. 

On October 30, 1977, the youngest child became eighteen 

years of age. On the advice of his attorney, defendant stopped 

paying any child support to plaintiff after that date. In February 1978 plaintiff initiated contempt proceedings seeking continuation of the support payments. The District Court concluded 

that because Article 11, Section 14, 1972 Montana Constitution 

provides that a person eighteen years of age is an adult, defendant's obligation to pay child support terminated on the youngest 

child's eighteenth birthday. This appeal followed. 

The question of whether an obligation to pay child support 

which arose at a time when the age of majority was twenty-one 

years continues until age twenty-one even though the age of majority has been lowered to eighteen presents a case of first impression 
in Montana. The question is not, however, entirely unique. 

In Arizona, which like Montana has adopted the Uniform 

Marriage and Divorce Act, it has been held that a child support 

obligation arising solely by the laws of Arizona terminates upon 

the date the child reaches the age of majority, eighteen years. 

Corbett v. Corbett (1977), 116 Ariz. 350, 569 P.2d 292. In 

Corbett, the parties were divorced in May 1967, at which time the 

age of majority was twenty-one years. The age was lowered to 

eighteen in 1972. The child involved turned eighteen years old 

on December 26, 1974. The Court held that the obligation to 

pay child support terminated on that date. The only difference 

between the Arizona and Montana law is that in ~rizona the lowering of the age of majority was by statute only. In Montana it 

was both by statute and by the Constitution. 

In another earlier case, the Arizona Court ruled that the 

statute lowering the age of majority fixed the status of minor 

and adult on its effective date and terminated child support payments for persons eighteen years or older on that date whose payments had been required by a divorce decree entered prior to that 

date. Stanley v. Stanley (1975), 112 Ariz. 282, 541 P.2d 382. 

The same result has been reached by a different analysis 

in a Virginia case. Eaton v. Eaton (1975), 215 Va. 824, 213 

S.E.2d 789. In Eaton, the parties were divorced in 1971. On 

July 1, 1972, the age of majority was lowered to eighteen. On 

November 20, 1972, the original support provisions of the divorce 

decree were modified by order of the court. This order provided 

that support was to be paid until further order of the court. The 

Supreme Court ruled that the modification of support was a new 

decree for child support to which the law lowering the age of majority applied. Therefore, the support order had no effect after the 

child reached age eighteen. 

Here there are circumstances similar to Eaton. The original 
support order was in 1963. The latest modification in 1975 

provided that support would be paid until further order of the 

court. Under the Eaton rationale, the constitutional and statutory 

provisions lowering the age of majority would apply to the order 

of November 1975 because the order was entered after the effective date of those provisions. 

We agree with the conclusion reached by the ~rizona and 

Virginia courts. Defendant's obligation to pay child support 

terminated upon the child's becoming eighteen years old. while 

we find these authorities from other jurisdictions persuasive, 

however, we do not adopt them as entirely controlling. Rather, we 

reach our conclusion on the basis of the applicable Montana statutes. Section 61-104, R.C.M. 1947, provides that "the parent or 

parents entitled to the custody of a child must give him support 

and education suitable to his circumstances". Section 64-101, 

R.C.M. 1947, as amended to implement Article 11, section 14, 1972 

Montana Constitution, provides that "minors" are males and females 

under eighteen years of age and that "[all1 other persons are 

adults". The plain import of these constitutional and statutory 

provisions is that upon attaining the age of eighteen a person is 

an adult and is no longer a "child" within the purview of section 

61-104 of whom parents are entitled to custody or to whom parents 

are obligated for support. Thus, at the time this proceeding was 

initiated, plaintiff was no longer under a duty to support the 

child, and defendant was likewise no longer obligated to provide 

funds for the fulfillment of that duty. 

Plaintiff, in her brief, relies heavily on an Oregon case, 

Lekas v. Lekas (1975), 23 0r.App. 601, 543 P.2d 308, which reached 

an opposite result from our conclusion here. In Lekas, however, 

the divorce decree provided specifically that child support would 

continue to age twenty-one. Here, the decree and the subsequent 

modifications stated only that support would continue until further 
order of the court. We do not by our holding here in anyway 

contradict the provisions of section 48-330(3), R.C.M. 1947, 

allowing parties to agree in writing or expressly provide in 

their decree of dissolution for termination of child support 

at an agreed upon age or time. Where such specific provision is 

made, it controls. Such is not the case here. 

Plaintiff also seems to be claiming that she has a vested 

right to receive child support until the child reaches age 21. 

However, as pointed out in Stanley v. Stanley, supra, the claim 

of child support is not a vested right. Neither is the age of 

majority or minority a vested right; rather, it is a status. 

Stanley v. Stanley, supra. 

We find no error in the District Court's dismissal with 

prejudice of plaintiff's petition for a contempt citation against 

defendant. 

Af firmed. 

Chief Justice 

Jus ices J 
Mr. Justice Daniel J. Shea concurring: 

I concur with the result in this case but the clear 

implication of the decision is that no child is entitled 

to the support of his parents after he reaches the magic 

age of eighteen years. In doing so, it appears that we 

have relied too much on 1972 Mont. Const. Art. 11, S14 and 

perhaps may have locked ourselves into an untenable position 

for the future. 

Art. 11, S14, states that "a person 18 years or older 

is an adult for all purposes." This section impliedly grants 

rights and impliedly imposes obligations on a person who 

reaches the age of eighteen years; but it does not release 

a parent from an obligation to support one who has arrived 

at the age of eighteen years. I do not believe that this 

constitutional provision would prohibit the legislature from 

imposing a duty on parents to support their children who 

have reached the age of eighteen years. At least we should 

not make such decision until that particular case comes before 

us for decision. 

Nor do I think that section 64-101, R.C.M. 1947 (contained in the chapter entitled "Persons and Personal Rights") 

adds anything as a legitimate basis for the court's conclusion. 

The statute provides as follows: 

"64-101. Minors and adults defined. Minors 

are : 

"1. Males under eighteen (18) years of age; 

"2. Females under eighteen (18) years of 

age. All other persons are adults." 

This section says no more than what is contained in the 

constitution. There is no reason to give any weight to this 

legislative enactment when the constitution mandates that 

there can be no other substantive definition. The statute 

does nothing more than declare a status already mandated by 

the constitution. 

-6- 
I would uphold the District Court on the basis that 

there was a sufficient factual basis in the record to 

conclude that support was not needed for the child. I am 

not willing however, to tie the hands of a District Court, 

or the legislature, by holding that the obligation to support, 

by virtue of the constitution, automatically stops when the 

child reaches eighteen years of age. 

I also question the court's conclusion that if the 

decree expressly provides for the continuation of child 

support beyond the age of eighteen years, it will control. 

In light of this Court's interpretation of Art. 11, S14, 

I fail to see how a District Court would be empowered to 

place such a provision in a decree of dissolution. I 

recognize however, that the parties could agree to an 

obligation to support a child beyond the age of eighteen years. 

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