BELSON, Associate Judge:
Melonie Nelson is the adult mentally retarded child of Charles and Marie Nelson, her divorced parents. The Superior Court, upon entering an absolute divorce in 1974, ordered Mr. Nelson to pay $100 per month in child support. When Melonie reached the age of twenty-one in 1985, Mr. Nelson announced his intention to cease paying child support, arguing that by statute a parent's legal duty to support his or her child terminates when the child reaches the age of majority. In this opinion, we consider the important question whether, as the trial court concluded, there exists in the District of Columbia a common law duty on the part of a parent to support his or her child after the child reaches majority if the child is physically or mentally disabled. We hold that the common law imposes that duty, and remand the case to the trial court for a reassessment of how the obligation to support Melonie Nelson should be borne by her parents at this juncture in her life.
The facts in this case are undisputed. In 1974, the Superior Court granted Mr. and Mrs. Nelson an absolute divorce, and awarded Mrs. Nelson custody of Melonie, their mentally retarded minor child. The court ordered Mr. Nelson to pay $100 per month in child support. On December 11, 1985, less than a month after Melonie turned 21, Mr. Nelson filed a motion to terminate, or in the alternative to reduce, the court ordered support payments.
The motion came before Judge Eilperin who appointed a guardian ad litem to represent Melonie's interests, and heard Mr. Nelson's motion on March 26, 1986. Both Mrs. Nelson and Melonie opposed Mr. Nelson's motion to terminate or reduce support. On October 10, 1986, the trial court issued a thoughtful and comprehensive Memorandum and Order. Nelson v. Nelson, 114 Daily Wash.L.Rptr. 2437 (November 24, 1986) [hereinafter "Memorandum and Order"].
With respect to Melonie, the trial court found on the basis of the evidence adduced at the hearing that:
Memorandum and Order, supra, at 2437. In addition, the trial court found that
Id. at 2443.
The trial court concluded that there exists in the District of Columbia a common law parental support obligation for post-majority children who by reason of mental disability are unable to support themselves. In addition, the court denied Mr. Nelson's motion to modify his support payments, noting that throughout his financial difficulties, including injury, disability, and bankruptcy, Mr. Nelson had been able to make support payments with regularity. Thus, the court concluded that although Mr. Nelson's financial circumstances may have changed over the course of the preceding decade he had failed to carry his burden of proving a material change affecting his ability in the future to support Melonie in the amount of $100 per month.
Eleven years ago in Nelson v. Nelson,
It is well settled in the District of Columbia that, as a general proposition, a parent's legal duty to support a child terminates when that child reaches the age of majority. D.C.Code § 16-916 (1981 & 1988 Supp.). Nelson I, supra, 379 A.2d at 715; Spence v. Spence, 266 A.2d 29, 30 (D.C. 1970); Jones v. Jones, 262 A.2d 601, 603 (D.C.1970). D.C.Code § 30-401 (1988) provides that
Thus, it is recognized in the District of Columbia that for purposes of child support, the age of majority is twenty-one. Butler v. Butler, 496 A.2d 621, 622 (D.C. 1985) ("Child support obligations in the District of Columbia continue until age twenty-one.") (citing Rittenhouse v. Rittenhouse, 461 A.2d 465, 466 (D.C.1983)).
Although a parent's obligation to support his or her child ordinarily ceases when the child reaches the age of majority, certain exceptions to this general rule exist. For example, a parent remains responsible under statute for the maintenance costs of a mentally ill child hospitalized even after the child reaches the age of majority. Nelson I, supra, 379 A.2d at 715 (citing D.C.Code § 21-586 (1981)). The D.C.Code is silent, however, with respect to an obligation on
In the absence of statutory enactment, this court will look to the common law. As Judge Prettyman stated, the term "common law" means "a system of law not formalized by legislative action, not solidified but capable of growth and development at the hands of judges." Linkins v. Protestant Episcopal Cathedral Found., 87 U.S.App.D.C. 351, 354-55, 187 F.2d 357, 360-61 (1950). The common law and all British statutes in force in Maryland on February 27, 1801, remain in force in the District of Columbia unless they are inconsistent with provisions of our code.
Appellant Mr. Nelson urges that in reaching a determination regarding the common law of Maryland this court must defer to the Maryland high court's determination regarding its own common law. Citing Borchert v. Borchert, 185 Md. 586, 45 A.2d 463, 465 (1946), appellant argues that Maryland does not recognize a common law duty of support for disabled children past the age of majority. In Borchert, the Court of Appeals of Maryland considered whether a divorced father was financially responsible for his post-majority disabled son. The court observed that "[t]here was no common law obligation to support adult, incompetent children; neither was there any to support infant children although an obligation, both moral and legal, was early recognized in this state." Id. at 465. The Court of Appeals, however, did not rule on the question of whether there existed in Maryland, in 1946, a common law duty to support an adult, incompetent child. Rather, after noting the trend toward recognizing such a duty, either through legislation or "judicial expansion of the common law," id. at 465, it accepted the following concession set forth in the father's brief: "`We do not dispute the obligation of the father to care for children, no matter what age, physically or mentally unable to take care of themselves and agree with this general statement of the law.'" Id. at 465. The court treated the father's statement as the law of the case. We therefore reject appellant's argument that Maryland common law supports his position, and turn to survey the state of the common law generally in our sister jurisdictions.
There is no question that, at common law, there developed a parental duty to support minor children. Invoking the oft-quoted passage from Kent's Commentaries, Judge Eilperin noted in his opinion that
Memorandum and Order, supra, at 2444, quoting 2 Kent's Commentaries on American Law 182-83 (1854). Consistent with this view, we have previously recognized that "[c]hild support is a common law right which arises by virtue of the existence of the family relationship." Butler v. Butler, 496 A.2d 621, 622 (D.C.1985), citing Pleasant v. Washington Sand & Gravel Co., 104 U.S.App.D.C. 374, 375-76, 262 F.2d 471, 472-73 (1958); District of Columbia
Although early common law thus recognized a parental duty of support for minor children, it appears that the early common law did not extend that duty of support beyond minority, not even for physically or mentally disabled children. See generally Annotation, Parent's Obligation to Support Adult Child, 1 A.L.R.2d 910 (1948); 59 AM.JUR.2D Parent and Child §§ 89-90 (1987) [hereinafter "59 AM.JUR.2D"]. To the contrary, substantial authority supports the proposition that, as a matter of early common law, the parental support obligation ended at the time the child reached the age of majority irrespective of the child's physical or mental disabilities. E.g., Comment, Domestic Relations—Child Support—Parental Duty to Support a Subnormal Adult Child, 48 MISS. L.J. 361, 361-62 (1977) ("At common law, the parent's legal obligation to support was restricted to minor children of the marriage. Consequently, in the absence of statutory, contractual, or constitutional provisions, the parental duty to support automatically terminated at the age of majority. Indeed, strict application of this limitation denied assistance not only to `normal' adult children, but also to mentally and physically impaired offspring.") (footnotes omitted); 59 AM.JUR.2D, supra, § 89 at 229 ("The common law went no further than to impose on parents the duty of supporting their minor children."); Moss v. Moss, 163 Wn. 444, 448, 1 P.2d 916, 918 (1931) ("The duty of a parent to provide support for an adult son who is unable to earn his livelihood because of bodily infirmity or by reason of mental disability is statutory. No legal liability existed at common law."); Napa State Hospital v. Flaherty, 134 Cal. 315, 316-17, 66 P. 322, 323 (1901) (any duty to support an adult disabled child was "purely a creation of ... statute" since "[n]o such right existed at common law."); Monroe County v. Teller, 51 Iowa 670, 672, 2 N.W. 533, 534 (1879) (father "no more liable ... than a stranger" would be for support of insane adult son).
The existence of a parental duty of support for adult disabled children at the time of early common law was considered by the court in Pocialik v. Federal Cement Title Co., 121 Ind.App. 11, 16, 97 N.E.2d 360, 362 (1951) (en banc). There, "[a]ppellants argue[d] that by the common law of England there was a duty upon parents to support their defective adult children." The Pocialik court concluded, however, "that the common law of England did not so provide prior to the settlement of Jamestown, nor did it so provide over three centuries later." Id. Consistent with this conclusion, the court found that
Id. 97 N.E.2d at 363. This latter point is consistent with an observation we made in Nelson I, where we noted in passing that "[m]any jurisdictions have, by case law, also imposed on parents a duty to support physically disabled children after majority." Nelson I, supra, 379 A.2d at 715.
Our review of how other courts have treated the issue of parental support obligation for adult disabled children is consistent with the court's conclusion in Pocialik, and suggests a strong trend favoring recognition of such a duty.
This trend toward recognition of a parental duty of support for adult disabled children is so strong that we need encumber our inquiry no further with the question of whether there existed such a duty in the days of Blackstone. We have previously stated that D.C.Code § 49-301, which provides for the common law of the District of Columbia, "was not intended by Congress to freeze the common law at a particular date and act as a bar to the judicial function of revising and enlarging the common law." United States v. Tucker, supra note 3, at 407 A.2d 1069 (D.C.1979). Rather, the common law is an evolving body, and therefore a contemporary court ruling on the basis of common law must take into account not only how the early English courts viewed an issue, but also how the courts of recent decades have treated it.
Turning to the issue before us, it is clear that the great majority of jurisdictions have accepted the existence of a continuing duty on the part of parents to support disabled children beyond the age of majority, if not by virtue of statute enacted by the legislature,
The Davis court's assertion that courts throughout the land have recognized a common law parental duty of support is at least as valid today as it was in 1954. Indeed, our review of apposite cases demonstrates overwhelming support for the conclusion that a parental support obligation exists with respect to adult offspring who are physically or mentally disabled.
Crain v. Mallone, 130 Ky. 125, 127-28, 113 S.W. 67, 68 (1908). Stated another way, "there is no magic in the age of majority. Courts must look beyond the historical connotations and examine the facts and equities of each case." Washburn, Post-Majority Support: Oh Dad, Poor Dad, 44 Temp.L.Q. 319, 355 (1971). We are persuaded that the reasoning of the trial court in the instant case, and that of the many courts across the land that have considered this issue, represents a sound approach to the issue at hand, and provides an adequate basis for this court's recognition under the common law of a parental duty of support for physically or mentally disabled children beyond the age of majority. Our inquiry, however, cannot end here.
In order to conclude that the common law duty in question exists in the District of Columbia, it is necessary to ascertain that no applicable statute precludes or abolishes it. In the absence of such a statute, the "[common law] duty remains the common law of this jurisdiction." Faunteroy v. United States, 413 A.2d 1294, 1300 (D.C. 1980). Looking to the D.C.Code, it is clear that no statute has been enacted that negates the duty in question, nor does appellant contend that there has been such an enactment. See brief of appellant at 6-7 n. 3. Appellant does argue, however, that promulgation of the comprehensive "Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978," now codified at D.C.Code § 6-1901 (1981), evidences legislative recognition of the absence of such a common law duty on the part of parents respecting their adult disabled children. Appellant then argues that legislative recognition of the absence of this common law duty, coupled with (1) the legislature's passage of the 1978 Act and (2) the legislature's failure to include a provision requiring parents to support their adult disabled children, is somehow inconsistent with the trial court's conclusion that there is a common law duty of support. We are not persuaded.
The Council report that accompanied the Retarded Citizens Act makes clear that the Act was intended more as a revision of the
The 1978 Act addresses the rights and responsibilities of citizens in relation to the state; it does not implicate, let alone conclusively resolve, intrafamily duties and responsibilities such as those involved in the instant case. In any event, appellant is unpersuasive in his argument that the 1978 Act's silence with respect to a parental support obligation for disabled adult children somehow precludes this court from recognizing such a duty because, absent a purpose to rescind the common law, courts will not give a statute that effect. Duvallon v. District of Columbia, 515 A.2d 724, 726 (D.C.1986). Accordingly, we conclude that no action on the part of the legislative branch, nor any lack of action signifying a legislative intention to remain silent on the issue, precludes a finding by this court of a common law parental duty to support adult disabled children.
One final consideration remains. Neither this court nor the legislature of the District of Columbia has yet addressed the existence of a parental duty of support for adult disabled children. A prudent court must recognize that there will exist some uncharted areas, untouched by either legislative or judicial action, in which the courts may be importuned to act first but preferably should defer to the legislative branch, recognizing that that branch is better suited to address the issue that has been raised.
Having concluded that a common law obligation exists, we now proceed to appellant Mr. Nelson's second contention, viz., that the trial court erred in concluding that appellant failed to prove a material change in circumstance sufficient to modify his previous court ordered payment schedule.
Generally speaking, where the court has entered an original order of child support, motions to modify the level of payments are governed by the standard enunciated in Hamilton v. Hamilton, 247 A.2d 421 (D.C.
"While a trial court has broad discretion in making an original award of alimony or support, Smith v. Smith, 344 A.2d 221, 223 (D.C.1975), its discretion is limited when modifying such an order by the requirement that the modification be anchored in the original decree and reflect only changes since that decree." Tennyson v. Tennyson, 381 A.2d 264, 266-67 (D.C.1977). Ordinarily, "[m]odification of a final decree of child support is justified only when the proponent of change bears the burden of proof that there has been a material change in the needs of the child or the ability of the parents to pay." Id. at 266. This court reviews a trial court's decision regarding modification of support obligations under an abuse of discretion standard. Hamilton, supra, 247 A.2d at 424.
In the instant case, Judge Eilperin, in denying appellant's motion for support modification based upon material change in circumstances, apparently based his decision on appellant's failure to carry his burden of persuasion. Judge Eilperin stated that "[w]hile Mr. Nelson's financial circumstances may have changed over the last 10 or 12 years, the court is not convinced that the change has materially affected his ability to support Melonie." Memorandum and Order, supra, at 2444. In essence, Judge Eilperin concluded that appellant's purported inability to pay was the result not of a change in his financial condition but rather of Melonie's reaching the age of majority.
We think it unnecessary to reach the question of whether the trial court abused its discretion in finding that Mr. Nelson failed to demonstrate a material change of circumstance, however, because we agree with Mr. Nelson's argument on appeal that the novel circumstances of this case justify the trial court's taking a hard and fresh look at the financial situation of all concerned parties. This is not to fault the procedure followed by the trial court. As the first part of this opinion makes clear, the trial court and the parties were navigating in uncharted waters because the issue of parental support for a disabled adult child had yet to be addressed in the District of Columbia. Appellant himself did not advance the argument that this unusual factual posture required the trial court to depart from ordinary procedures respecting modification of child support and instead consider the support obligation afresh. Rather, appellant quite understandably proceeded in accordance with the precedents that placed upon him the burden of proving a material change in circumstance. The issue as framed at trial did not afford the court the opportunity to pass on the more general question of how Melonie's support needs should most fairly and reasonably be met now that she has reached the age of majority.
Despite our conclusion above that a disabled child's reaching the age of majority is, for purposes of her need for continued support, a rather artificial benchmark, it does not follow that the child's attaining majority should be without legal consequence. Given the significance the law attaches to one's reaching majority in ordinary circumstances, it is reasonable to require a reassessment of parental support obligations when a disabled child reaches that age, a reassessment not limited by the terms of the original support order. Different considerations come into play when parents face an almost indefinite obligation to support a disabled child. By way of illustration, Melonie's reaching the age of twenty-one may affect her eligibility or level
In sum, we hold today that there exists in the District of Columbia a common law duty on the part of parents to support their post-majority physically or mentally disabled children, and remand this case for further proceedings consistent with this opinion.
Memorandum and Order, supra, at 2444, quoting Letter from William Wordsworth to John Wilson (June 7, 1802), reprinted in The Letters of William and Dorothy Wordsworth, 1787-1805, 356 (1967). Judge Eilperin recognized that this quote, in which Wordsworth was writing about his poem "The Idiot Boy," might be offensive to some by reason of its use of the phrase "idiot," but explained that in the late 1700s this term was in common usage and that Wordsworth used it with great sympathy. See Memorandum and Order, supra, at 2444 & n. 6.
As additional authority supporting the proposition of an early common law parental duty of support extending beyond the age of majority, Judge Eilperin cited John Brydall, Non Compos Mentis: or, the Law Relating to Natural Fools, Mad Folks, and Lunatick Persons at 29 (1700) ("And Idiots, from their Nativity, were accounted always within Age; and therefore, the Custody of Them was perpetual, for long as they lived...."). Memorandum and Order, supra, at 2444.
Finally, our neighboring jurisdiction of Virginia appears to recognize a common law duty on the part of parents to support mentally disabled children beyond the age of majority. Johnson v. Johnson, 1 Va.App. 330, 338 S.E.2d 353, 354 (1986), citing Indemnity Insurance Co. v. Nalls, 160 Va. 246, 168 S.E. 346, 347 (1933) ("the weight of authority is to the effect that such a duty rests upon the father."). In addition, the Virginia Code provides that parents are responsible for supporting and maintaining children under the age of eighteen "or [a] child of whatever age who is crippled or otherwise incapacitated from earning a living." VA.CODE § 20-61 (1983).
Brief of amicus curiae at 7.