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Court of Appeals of Tennessee, Eastern Section

1988 Tenn. App. LEXIS 792

December 7, 1988, Filed




Affirmed and Remanded


emancipation, daughter, petitioner testified, child support, emancipate, earning, emancipation of a minor, illegitimate child, emancipated, parental, partial, peculiar, weekly payments, minor child, relinquishment, preponderates, revocable, calendars, divorced, marriage, birth, wages, duty





Houston M. Goddard, Judge, Clifford E. Sanders, P.J.(E.S.), E. Riley Anderson, J., concur.





Goddard, J.

This case is brought under the Uniform Reciprocal Enforcement of Support Act, Title 36, Chapter 5, Part 2 of the Tennessee Code Annotated. Tennessee, through the Chancery Court for Grainger County, was the rendering State, Florida the initiating State, and Tennessee also the responding State. The Circuit Court for Grainger County found that the Respondent's daughter, for whom support was sought, had been emancipated as of June 1986, and as a result dismissed the complaint.

The Petitioner appeals, contending the evidence preponderates against the Trial Court's finding.

The facts as set out in the brief of the Petitioner are accepted by the Respondent, with one addition, hereinafter noted:

The trial of this case was held on December 7, 1987, before the Honorable William R. Holt, Jr., Judge of the Circuit Court of Grainger County, Tennessee.

The petitioner introduced [*2] into evidence the Decree of Divorce between the parties entered in the Grainger County Chancery Court nunc pro tunc as of November 29, 1984. The decree provided that the defendant was to pay $ 25.00 per week in child support, but that the defendant would not be required to pay such support for any time during which the child resided with him. The petitioner testified that the defendant was $ 1,900.00 in arrears on the child support as of January 8, 1987.

The petitioner also testified that her daughter, Christy Annette Morgan, turned seventeen in June of 1987. She testified that her daughter had an illegitimate child on July 12, 1985, who was twenty-nine months old at the time of trial. The petitioner testified that her daughter, Christy, attended school throughout her pregnancy and for one additional year following the birth of her illegitimate child. She also testified that her daughter had obtained a GED, the equivalent of a high school diploma, and had gone to work part time at McDonald's in July of 1986. Finally, the petitioner testified that her daughter earned only $ 200.00 every other week, which was insufficient to pay for both the needs of herself and her illegitimate [*3] child. The petitioner indicated that she had to provide auto insurance, health insurance, clothing expenses, medical expenses, room, and board for her daughter.

On cross examination, the petitioner testified that her daughter earned $ 4.20 per hour at McDonald's and that she worked approximately 40 hours per week. She stated that she did not charge her daughter rent for living with her. The petitioner testified that she was not sure how much child support she had received from the defendant in 1986, but that she had some calendars at home on which she had recorded the dates and amounts of the payments received. The court agreed to allow the petitioner to file these calendars as a late filed exhibit to her testimony.

Mr. Gene A Morgan, the defendant, was called as the only witness for the defense. Mr. Morgan testified that he had made 49 weekly payments in 1985 and 31 weekly payments in 1986. Various money order receipts and cancelled checks were entered into evidence in support of his testimony. The defendant testified that he stopped paying child support when his daughter was no longer attending high school. He also stated that he continued to pay child support even after his daughter [*4] got pregnant and had her own child.

The addition the Respondent suggests is the fact that he is in construction work, which is seasonal, and earned less than $ 6000 in 1987.

Tennessee law relative to emancipation is correctly set out with appropriate citations in Tennessee Jurisprudence under Parent and Child 18, as follows:

18. Generally.--Emancipation may result from an agreement, or it may occur by operation of law, and generally the emancipation of a child leaves the child, as far as the parent is concerned, free to act on the child's own responsibility and in accordance with his own will and pleasure, with the same independence as though he had attained majority. Emancipation of a child may be express, as by voluntary agreement of the parent and child, or implied from such acts and conduct as import consent, and it may be conditional or absolute, complete or partial.

"Complete emancipation" works a severance of the legal filial relation as completely as if the child were of age. Such an act ought not lightly to be inferred from a given state of facts, where the father is blameless in conduct toward the child. It is not revocable at the father's instance. The fact that the [*5] son lives in the family of the father does not establish that he is not emancipated, since there may be complete emancipation even though the minor continues to live with his parents, and that is true even though the child continues to assist the parent in the parent's work.

"Partial emancipation" frees a child for only a part of the period of minority, or from only a part of the parent's rights, or for some purposes, and not for others. Partial emancipation of an infant is revocable by the father.

At what age a parent will emancipate a child rests in the parent's discretion. In the absence of a statutory provision to the contrary, the intention of a parent to emancipate his child need not be evidenced by any formal or record act, but the intention to emancipate may be expressed either in writing or orally, or it may be implied from conduct or from other circumstances.

The question as to what is emancipation is a question of law, while the question of whether there has been emancipation is one of fact.

Generally, voluntary emancipation requires the consent of the parent, express or implied, and involves an entire surrender of all the right to care, custody and the earnings of the [*6] child, as well as a renunciation of the parental duties. An agreement, either in writing or parol, must be proven to support a voluntary emancipation of a minor, and proof thereof may be established by circumstances clearly showing a relinquishment by the parent of all parental responsibility and control. In absence of a formal agreement for voluntary emancipation of a minor, proof must show conduct wholly inconsistent with retention by the parent of any degree of parental responsibility or control, and the mere relinquishment of the right to the minor's earnings is not enough to establish emancipation.

Emancipation does not enlarge the minor's capacity to contract but simply precludes the father from asserting his claim to the wages of his child.

The marriage of a minor child, either with or without the consent of the parents, fully emancipates the child from parental authority and from the duty of support and deprives the parent of the right to the child's earnings, even though the child may later be divorced while still a minor.

In Fiedler v. Potter, 180 Tenn. 176, 172 S.W.2d 1007 (1943), the Supreme Court points out that the question of voluntary emancipation of a minor [*7] is one which must be determined upon the peculiar facts and circumstances of each case.

In the case at bar we are not in a position to say under its peculiar facts set out below that the evidence preponderates against the Trial Court's determination that the daughter, insofar as he is concerned, has been emancipated:

(1) She has conceived and given birth to a child.

(2) She has quit school.

(3) She has earned a GED diploma.

(4) She is working full time and earning more than her father.

(5) She lives apart from her father.

(6) The father stopped making support payments and has made no claim on her wages.

In reaching this conclusion we have not overlooked the daughter's contention that she is unable on her present salary to support herself and her minor child. This may very well be true, but the situation would be the same had the child been born in wedlock and she later divorced the father. Without question her marriage would have worked an emancipation. We do observe in this connection, however, that there is no evidence that the father of her child is unknown, deceased, or unable to provide support, which is his duty rather than that of the Respondent grandfather.

For [*8] the foregoing reasons the Trial Court is affirmed and the cause remanded for collection of costs below. Costs of appeal are adjudged against the Petitioner.