Three Year Limitation for Collecting Child Support Arrearages
Generally a child support obligation continues until the child is emancipated by turning 18 or graduating from high school. In Arizona, an action for back child support must be brought within three years from emancipation. Does that mean that you must bring an action within three years from the exact date of emancipation? Or do you have until the end of the month in which emancipation occurs? In State v. Huskie, 44 P.3d 161 (2002) the Court of Appeals considered these emancipation issues.
Facts and Procedure
Mrs. Davis and Mr. Huskie were married and had a child. In 1982, the trial court granted a dissolution. It awarded Mrs. Davis custody of their child, J. Davis. The court ordered Mr. Huskie to pay $325 per month in child support until J. Davis’s emancipation.
In 1997, J. Davis turned eighteen years of age. On May 21, 1997, she graduated from high school. By that time, Mr. Huskie owed over $32,000 in back support. On May 26, 2000, the state requested a judgment against husband for the arrearages plus interest.
Mr. Huskie asked the court to dismiss the action because it had not been filed within three years of J. Davis’s emancipation. The trial court denied that motion. It entered judgment against Mr. Huskie for the arrearages plus interest in the amount of $67,604.50. Mr. Huskie appealed.
Three Year Limit for Support Collection Action
Husband claims that the state’s request for judgment was filed too late under Arizona law. Any request for a child support judgment must be made within three years of the child’s emancipation. He argues that J. Davis was emancipated the day she graduated from high school, May 21, 1997. Therefore, he claims, the state’s request for judgment, filed on May 26, 2000, was five days too late.
The state claims that J. Davis’s emancipation did not occur until Mr. Huskie’s support obligation terminated. It argues that he owed support for the entire month of May, 1997. That obligation did not terminate until May 31. Therefore, the state claims, it had until May 31, 2000, to file a request for judgment.
The Court of Appeals reviewed the law. In Arizona, the right to receive child support payments vests monthly, as each payment becomes due. Each vested right can be enforced as a final judgment. However, unpaid child support that became judgments by operation of law expire three years after a child’s emancipation.
The statute allows the state or a parent to file a request for judgment for support arrearages. But this must be filed no later than three years after the emancipation of the last child getting support under the order. Thus the date of emancipation of the child triggers the three-year limitation period.
What Constitutes Emancipation?
A child is legally emancipated on her 18th birthday unless a different date is set out in the support order. Under Arizona law, a parent must pay support while a child attends high school. Therefore a child is not emancipated at age 18 if she is still attending high school.
The Court of Appeals found this language to be clear. The obligation to provide child support after the child turns 18 continues only while she actually attends high school. When a post-majority child stops attending high school, the support obligation terminates.
The child is emancipated when the child graduates from or drops out of high school. The date of emancipation triggers the three-year limitation period. The Court rejected the state’s argument that, because Mr. Huskie owed $325 for the month of May 1997, the support obligation did not terminate until May 31.
The court cannot judicially alter the clear wording of the statutes to avoid their force and effect.
Child Remaining in Parental Home
J. Davis continued to live with Mrs. Davis and be supported by her after her graduation from high school. The state argues that this fact is relevant in determining emancipation. However, the Court found it was not. It said that the fact a child remains in the parental home does not forestall emancipation.
J. Davis became emancipated when she graduated from high school on May 21, 1997. Under Arizona statutes, a written money judgment request had to be made within three years. The state’s request, filed on May 26, 2000, was untimely. The Court of Appeals vacated the trial court’s judgment.