Equitable Estoppel and Enforcement of Child Support
December 18, 2014 § 5 Comments
Jay Wilson and Joy Stewart were engaged in a contempt action over Jay’s failure to pay child support, alimony, and expenses of the children, based on the parties’ 2003 divorce judgment.
The chancellor found Jay in contempt, awarded Joy a judgment, and Jay appealed. Among his grounds for appeal was the claim that Joy was equitably estopped from bringing the child-support-enforcement action, since she had waited several years to do so.
The COA, in Wilson v. Stewart, decided December 9, 2014, by Judge Fair, addressed his argument briefly:
¶14. Jay also argues that Joy is equitably estopped from bringing the contempt action. This Court has found equitable estoppel to be inappropriate in child-support matters. Durr v. Durr, 912 So. 2d 1033, 1038 (¶14) (Miss. Ct. App. 2005). “[C]hild support is for the benefit of the minor. The custodial parent is only a conduit for the support. Therefore, it follows that no action or inaction on the part of the custodial parent can relieve the defaulting parent of that parent’s obligation to pay support.” Id. This argument is without merit.
The Durr decision goes somewhat further:
¶ 13. [Mr.] Durr also argues that Hale is equitably estopped from bringing the contempt action. “Equitable estoppel,” as Durr points out in his brief, “is generally defined as the ‘principle by which a party is precluded from denying any material fact, induced by his words or conduct, upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was followed.’ ” Koval v. Koval, 576 So.2d 134, 137 (Miss.1991).
¶ 14. It is well settled law, as we discussed above, that child support is for the benefit of the minor. The custodial parent is only a conduit for the support. Therefore, it follows that no action or inaction on the part of the custodial parent can relieve the defaulting parent of that parent’s obligation to pay support. Moreover, even if we were to find, which we do not, that equitable estoppel might be appropriate in child support cases, we would likewise find that Durr failed to meet the requirements for its application in this case. He has not shown how he changed his position in such a way that he would suffer injury if Hale is allowed to assert his lack of compliance with the judgment of divorce. In a feeble attempt to show that all of the conditions for the application of the doctrine of equitable estoppel exist, Durr argues that he is facing jail time if the arrearage is not paid. This is hardly the type of injury that is contemplated as a condition for the application of “equitable estoppel.”
¶ 15. Further, Durr does not contend that Hale ever informed him that he did not have to pay for Waid’s private school. Rather, his argument, as we have already noted, is that she just waited too long to assert the claim for it. In other words, Durr’s position is that Hale’s inaction in timely pressing the private school tuition, justifiably led him to believe that he did not have to pay it notwithstanding the clear requirements of the judgment of divorce. Surely, Durr knew that any changes to, or modifications of, the judgment of divorce would have to be made by the court in order for them to be enforceable. Therefore, we find this issue lacks merit.
The court also rejected Durr’s claim that his inaction was justified by his ex’s “inaction, representations, and silence.”
So, from the foregoing, I think a proper conclusion is that claims of equitable estoppel are not favored in child-support cases, and that it would take an extreme case to apply it. An example is the fact situation in Varner v. Varner, where the mother informally induced the father to take one of the children back into his custody due to behavior and school problems. During his period of informal custody (i.e., without a court order), the father reduced his child support pro rata. After the father straightened the child out and returned him to the mother’s custody, she sued for the unpaid child support. Varner is not an equitable estoppel case, per se, but its fact situation would justify such a claim in my opinion.
A Due Process Wrinkle for Child Support
January 2, 2014 § Leave a comment
Helping a client collect past-due child support can be devilishly difficult, particularly when the obligated parent disappears, or tries to.
If you will look at MCA 93-11-65(5) and (7), you may find some help.
MCA 93-11-65(5) mirrors UCCR 8.06 in its requirement that both parties in cases involving minor children must keep each other and the court informed of the party’s residence address and telephone number. It goes further, however, for child support cases, and requires that both parties notify each other and the court and the state child support registry of the party’s ” … location and identity, including social security number, residdential and mailing addresses, telephone numbers, photograph, driver’s license number, and name, address and telephone number of the party’s employer.” The information is required upon entry of an order or within five days of a change of address. [Note: Although the statute specifically refers to change of address, it would seem that a court order could direct updating on change of any particular].
Applying the foregoing, you will do your child support client a great service by making sure that the above language is in every child support order you submit to the court, and that you make sure that the appropriate information on both parties is filed as required, including with the state registry, as directed in the statute.
Why go to that trouble?
Well, that’s where MCA 93-11-65(7) comes in. It provides that “In any subsequent child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of a party, due process requirements for notice and service of process shall be deemed to be met with respect to the party upon delivery of written notice to the most recent residential or employer address filed with the state case registry.”
So, after diligent search and inquiry to locate the slacker, you issue process to his or her last reported residence address or employer, and — Volia! — you have personal jurisdiction under the statute. Note the language “filed with the state case registry.” That’s a key component. You must have seen to it that the info was filed with the state registry.
The case registry is provided for in MCA 43-19-31(l)(ii) [that’s lowercase L], and is to be maintained by DHS.
To be honest, I have yet to see anyone avail themselves of this procedure. If you have had experience with it, I would welcome your comments. It seems to me to be quite advantageous to private parties trying to enforce child support obligations
The Case of the Illusory Agreement
September 11, 2013 § 3 Comments
How enforceable is an extra-judicial agreement to reduce child support? And just what constitutes an agreement?
Those questions were at the heart of the dispute between Donald Brewer and his ex-wife, Penny Holliday. Donald had agreed in a PSA for Penny to have custody of the children, and to pay her $1,185 per month in child support. That agreement was incorporated into a judgment of divorce entered June 7, 2005.
In August, 2005, Donald filed a contempt and modification action asking to change custody. Penny counterclaimed that Donald was unfit for custody. There were several continuances. In July, 2006, the parties engaged in voluntary mediation, at the conclusion of which they entered into an agreed order and memorandum of understanding that effected a change of custody of one of the children and reduced Donald’s child support to $600 a month.
The agreed order was never submitted to the chancellor, but Donald nonetheless reduced his child support to the agreed amount, and Penny responded with a contempt action immediately after the first reduced payment. Penny stated that she “withdrew from the agreed order” because Donald “rejected certain financial obligations” and harassed her.
Donald filed for bankruptcy, and Penny had to file a claim with the bankruptcy court to continue to pursue her action to recover the child-support arrearage.
In February, 2008, after he enlisted in the military, Donald filed yet another modification action, asking to reduce his child support from $1,185 to $737. His pleading made no mention of the mediation agreement.
In July, 2009, Donald filed a pleading seeking to have the agreed mediation order entered nunc pro tunc. He alleged that the order had not been entered due to inadvertence and oversight, and that it had been misplaced by one of the several attorneys who had represented him in this now-epic litigation. The chancellor overruled the motion on November 5, 2009.
At last, on June 14, 2011, nearly six years after the initial filing, the case went to trial. The chancellor found Donald in contempt and entered a judgment against him for $34,515 in child-support arrearage. Donald appealed, claiming that the chancellor erred in not entering the agreed mediation judgment.
The COA, in Brewer v. Holliday, affirmed on March 12, 2013.
In response to Donald’s argument that Penny should be held bound by her agreement, the court pointed out that Donald himself had filed pleadings that asked for a reduction from $1,185 to $737, indicating that the parties had not conformed to the agreement. Penny also filed claims in the bankruptcy, which the COA noted should have tipped Donald off that Penny did not consider the agreement to have taken effect.
As for Donald’s argument that he should not be found in contempt because he paid the amount he reasonably believed was due under the never-entered agreed mediation order, the court looked to the bankruptcy proceedings as an indication that he was aware of Penny’s claims and non-acquiescence in any agreement. Judge Griffis, for the court:
¶25. A party, such as Brewer, “who extra-judicially modifies or eliminates child support payments acts ‘at his peril.’” Rogers v. Rogers, 662 So. 2d 1111, 1115 (Miss. 1995) (quoting Varner v. Varner, 588 So. 2d 428, 434 (Miss. 1991)). “[C]ourt-ordered child support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.” Varner, 588 So. 2d at 434. “[A] court cannot relieve the civil liability for support payments that have already accrued.” Thrift v. Thrift, 760 So. 2d 732, 737 (¶16) (Miss. 2000) (citation omitted).
¶26. Even after Holliday filed claims in Brewer’s bankruptcy action for child-support arrearages, Brewer continued to pay only $600, contrary to the only order that obligated him to pay child support. The fact of the matter is that Brewer paid only $600 when there was sufficient evidence to indicate that he was aware that his obligation had not been reduced. We find that there was substantial evidence before the chancellor to find Brewer in willful contempt.
So, to wrap this up:
- If you get an agreed judgment, get it signed by the judge and entered right away. It happens every day that parties agree to one thing at the court house and then have “buyer’s remorse” later, after talking to aunt Susie and every other legal scholar in the family, and want to back out.
- Good luck getting a judge to enforce an out-of-court agreement. The only exceptions off the top of my head are: (1) where the parties reached an agreement and it was undisputedly not entered by oversight, and the parties acted in accordance with the agreement, as in Wright v. Wright, 737 So.2d 408 (Miss. App. 1998); and (2) where the court treats unpaid child support as having been “paid” in the situation where one or more of the children has lived with the paying parent by agreement, as in Varner, cited above. In this case, I suppose the only reason that the trial court did not consider Donald’s situation to be within the holding in Varner is that he did not ask for that relief or raise that issue.
- In my opinion it helped Penny’s case to file a contempt action immediately when Donald first reduced his child support payments. That move was clear evidence to me that she did not consider that the parties had reached an agreement sufficient to submit it to the court for approval.
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