AGREEING TO FOREGO CHILD SUPPORT

September 6, 2011 § 5 Comments

We’ve talked here before about forgiving child support arrearages. In a nutshell, the law is that the court can not order a reduction or forgiveness in child support arrearage except in the case where the father’s parentage of the child is subsequently disproved by DNA testing. In such a case, the statute permits the trial court to remit the arrearage to prevent an unjust enrichment.

What about the situation where the parents agree to forego child support altogether? Should the court approve it? Here’s a scenario:

R.C. and Esther obtain an irreconcilable differences divorce in which R.C. agrees to pay Esther $30 a week for child support. Later, however, R.C. and Esther into an extra-judicial agreement in which R.C. conveys his interest in a home to Esther and agrees to pay the mortgage debt; in consideration, Esther signs a “Covenant not to Sue” by which she agrees not to sue R.C. for the child support ordered. Esther ignored the agreement and sued R.C. for contempt when he paid the mortgage instead of the child support. The chancellor found the “Covenant not to Sue” unenforceable, and adjudged R.C. to be in contempt.

Confronted with these facts in the case of Calton v. Calton, 485 So.2d 309, 310 (Miss. 1986), the Mississippi Supreme Court stated:

… this jurisdiction has held that a child support judgment is awarded to the custodial parent for the benefit and protection of the minor child, the underlying principle being the legal duty owed to the child for the child’s maintenance and best interest. Wilson v. Wilson, 464 So.2d 496 (Miss. 1985), Hailey v. Holden, 457 So.2d 947 (Miss. 1984). There is a fiduciary duty owed to the child by the custodial parent. Wilson, supra, Trunzler v. Trunzler, 431 So.2d 1115, 1116 (Miss. 1983). The duty to support children is a continuing duty on both parents and is a vested right of the child. Wilson, supra, Simpson v. Rast, 258 so.2d 233 (Miss. 1972). 

The court held that the parties’ agreement was unenforceable as against public policy. 

As for the extra-judicial agreement, the court said at page 311 that “Further, the parents cannot by contract alter a court judgment entered for the benefit of a minor, for only the court granting such judgment can alter such a judgment.”

Aside from its obvious and express holding, Calton is a major component in my reluctance to approve agreements that provide that “Husband shall support the child when the child is with him, and Wife shall support the child when he is with her.” That kind of agreement, in my opinion, leaves open the question whether the parents are indeed fulfilling their fiduciary duty to the best interest of the child.

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