In Re the Marriage of Schoby

Knudson, J.;

David Scott Schoby appeals from the trial court’s order declining to terminate Schoby’s child support obligation upon the marriage of his 16-year-old son, Michael. Schoby contends child support for Michael automatically terminated at the time of Michael’s marriage under the express terms of the underlying property settlement agreement.

The controlling facts are not in dispute. David and Donna J. Schoby were divorced in 1994. Their property settlement agreement approved by the trial court provides child support will continue until a minor child reaches the age of 18, marries, becomes legally emancipated, or dies. Subsequently, the trial court did modify David’s monthly child support obligation but specifically provided that “[a]ll other orders with regard to said minor children remain in full force and effect.”

The narrow question presented on appeal is whether David’s obligation to pay child support for Michael terminates as a matter of law upon Michael’s marriage. On appeal, David makes no sufficiency of the evidence argument as to the trial court’s conclusion that Michael’s marriage did not result in emancipation.

K.S.A. 1998 Supp. 60-1610(a)(l) requires that child support shall at the veiy least be paid until a child reaches 18 years of age. In Thompson v. Thompson, 205 Kan. 630, 633, 470 P.2d 787 (1970), the Supreme Court held that there can be no contractual agreement in a divorce action that reduces or terminates a parent’s legal obligation to pay child support. We also note that accrued child support cannot be modified under K.S.A. 60-260(b)(6) and that prospective unpaid child support payments can only be modified by proper motion under 60-1610(a). Brady v. Brady, 225 Kan. 485, 492, 592 P.2d 865 (1979).

In Ortiz v. Ortiz, 180 Kan. 334, 339-40, 304 P.2d 490 (1956), the Supreme Court held that marriage of a minor child does not, as a matter of law, emancipate such child. However, the court also stated:

“This conclusion, we may add, is not intended to imply that under the powers conferred by our code of civil procedure a district court cannot make provision in a support order for the cessation of child support payments upon the marriage of a minor child. All it means is that in the absence of such a provision the party charged with the obligation of making the payments under the terms of the order for the benefit of a minor child must move out and obtain modification or change of such order in order to avoid the force and effect of the rules heretofore considered and discussed.” 180 Kan. at 339-40.

In Patrzykont v. Patrzykont, 7 Kan. App. 2d 533, 535, 644 P.2d 1009 (1982), a panel of this court stated:

“[I]n the absence of wording in the decree to the contrary, the obligation of support is not terminated by the marriage and motherhood of the minor child. [Citation omitted.] Thus, emancipation does not necessarily terminate the obligation of support and would be an inappropriate event for justifying automatic termination by the parents without sanction of the court.”

Arguably, the above dicta in Ortiz and Patrzykont may be read to support David’s argument. There was a property settlement agreement adopted by the trial court that specifically provided for termination of Michael’s child support upon his marriage. Nonetheless, we are not persuaded Michael’s child support should be terminated as a matter of law.

First, the right of a child to support from his or her father cannot be taken away or unfairly diminished by an agreement between the divorcing parents. Thompson v. Thompson, 205 Kan. at 633 (citing Grimes v. Grimes, 179 Kan. 340, 343, 295 P. 2d 646 [1956]). Second, the public policy of Kansas is stated in 60-1610(a) and specifically provides for the payment of child support until a child reaches 18 years of age. An order of a district court providing for automatic termination upon emancipation or marriage of the child would be no less contrary to public policy. We know of no circumstance short of death of the parent obligor or the child that calls for automatic termination of child support before a child reaches 18 years of age. We conclude that if termination is appropriate, the parent obligor must seek prospective termination by filing a motion under 60-1610(a). Accordingly, we affirm the judgment of the trial court.

Affirmed.