Aguero v. Aguero

• Decision Date: 02 February 1999
• Docket Number: No. 91,096,No. 2,91,096,2
• Citation: 1999 OK CIV APP 38,976 P.2d 1088
• Parties: 1999 OK CIV APP 38 Mary Ann AGUERO, Appellant, v. Manuel AGUERO, Jr., Appellee. Court of Civil Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1088

976 P.2d 1088

1999 OK CIV APP 38

Mary Ann AGUERO, Appellant, v. Manuel AGUERO, Jr., Appellee.

No. 91,096.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Court of Civil Appeals of Oklahoma Division No. 2.

Feb. 2, 1999.

Appeal from the District Court of Leflore County, Oklahoma; George H. McBee, Trial Judge.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Belva Brooks Barber, Barber and Barber, Poteau, Oklahoma, For Appellant.

Susan Thomas Mixon, Poteau, Oklahoma, For Appellee.

OPINION

BOUDREAU, V.C.J.

¶1 Mother Mary Ann Aguero appeals the trial court's post-divorce decree order determining she is not entitled to certain back child support from Father Manuel Aguero, Jr. The issue on appeal is whether the trial court erred when it allowed Father to assert the equitable defenses of laches, waiver, and estoppel to Mother's claim for child support arrearages. After a review of the facts and applicable legal authorities, we find that it did. Accordingly, we reverse the trial court's order and remand the matter with instructions.

¶2 Father and Mother married in 1965 and divorced in September 1987. Four children were born of the marriage, three of whom were minors at the time of the divorce. Upon divorce, Mother was awarded custody of the three minor children, and Father was ordered to pay child support in the amount of $600 per month. It is undisputed that Father never paid the entire $600 per month in child support.

¶3 Other relevant facts are as follows. In 1988, the Oklahoma Department of Human Services (DHS), on behalf of Mother, filed an application for contempt citation and requested that an alleged arrearage of $6,340 be reduced to judgment. Father was served notice by mail in Texas but did not appear, and a bench warrant was issued. However, no hearing was held nor was a dispositional order as to this contempt citation made, except that the bench warrant was recalled in 1994.

¶4 Father continued to provide Mother with some child support, but only on an irregular basis and never in the $600 per month amount specified in the divorce decree. Therefore, in August 1997, DHS again filed an application for contempt citation, this time alleging child support arrearages of $44,650 (including interest), and requesting that the same be reduced to judgment. Thereafter, in December 1997, Father filed a motion to modify custody as to one of the two children who were still minors and an application to enter a temporary order abating child support until resolution of the custody matter. A hearing on the issues was set for January 21, 1998.

¶5 Prior to the hearing, the parties resolved the child custody and prospective child support issues. At the hearing, the application for contempt citation was amended to a motion to reduce the child support arrearages to judgment.

¶6 During the hearing, the parties offered slightly different testimony relating to Father's previous child support payments. Mother claimed she had received a total of $26,175 of the $52,800 child support which should have been paid for the period of September 1987 to January 1998 as specified by the divorce decree, leaving a delinquency of $26,625, excluding accrued interest. Father claimed he had paid a total of $30,000 child support, leaving a delinquency of $22,800, excluding accrued interest.

¶7 Although Father acknowledges Mother never expressly agreed to accept an amount of child support less than the amount ordered by the decree, he testified Mother never told him there was a problem with not paying the full amount of child support. Mother contends she never expressly or impliedly agreed to accept any lesser amount of child support. When asked about her previous attempt to collect the child support arrearages through DHS, Mother stated "the reason I dropped it was because I had my three children I was trying to raise. I would--When I did get a check, I would have to bring it up here, I'd have to wait another week. At the time when I got the check, I needed it then." Mother also testified that she didn't hire a lawyer to take Father back to court to collect back child support because she didn't feel like she could afford it.

¶8 During closing statements, Father's counsel, asserting Mother had consented to receiving less than the $600 per month specified in the divorce decree, asked the trial court for "equitable relief." Citing Kissinger v. Kissinger, 1984 OK CIV APP 52, 692 P.2d 71, and Thrash v. Thrash, 1991 OK 32, 809 P.2d 665, Father's counsel claimed Mother had "acquiesced" in Father's noncompliance with the divorce decree and argued Mother "should not be allowed to benefit now for her failure to act in years past." Requesting that "equitable consideration be given to what [Father] has done and what [Mother] has consented to all these years," Father's counsel contended that, with the exception of $225 per month for the second half of 1997, no past due child support was owed.

¶9 On January 26, 1998, the trial court issued an order granting Mother judgment in the sum of $3,150. In arriving at this figure, the court applied the law of waiver and equitable estoppel to limit the amount of accrued child support Mother could recover. Mother now appeals the judgment.

¶10 In prohibiting Mother from collecting the full amount of past due child support, the trial court allowed Father to invoke the equitable defenses of waiver and estoppel. The preliminary question of whether such defenses are available in an action for collection of child support which has become a judgment by operation of law pursuant to 43 O.S. Supp.1998 § 137 is a legal question. ¹ Contested issues of law are reviewable in all actions, suits, and proceedings by a de novo standard. Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, p 5, 895 P.2d 731, 733. Review of law is called "de novo," which means no deference, not necessarily a full rehearing or new factfinding. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984).

¶11 On appeal, Mother argues the trial court incorrectly applied equitable principles of waiver and estoppel in determining the amount of Father's child support arrearage. To adequately evaluate Mother's argument, a detailed analysis of the three seminal Oklahoma cases is necessary: Kissinger v. Kissinger, 1984 OK CIV APP 52, 692 P.2d 71, upon which the trial court relied in allowing Father to interpose the equitable defenses of waiver and estoppel to Mother's claim for past due child support; McNeal v. Robinson, 1981 OK 43, 628 P.2d 358, upon which the court of appeals based its Kissinger decision; and Thrash v. Thrash, 1991 OK 32, 809 P.2d 665, a supreme court decision subsequent to Kissinger. We review them in chronological order.

¶12 In McNeal, the parties divorced, mother received custody of the two minor children, and father was ordered to pay child support. McNeal, 1981 OK 43, p 2, 628 P.2d at 359. When the children moved in with father, he stopped making child support payments to mother. Id. at p 3, 628 P.2d at 359. After one of the children moved back with mother, she filed an application to modify the divorce decree to increase child support and also sought a citation for contempt of court for the arrearage. Id. at p 5, 628 P.2d at 359. Father then moved to modify the divorce decree to retroactively decrease the child support and also petitioned for permanent custody of the children. Id. The trial court gave father custody of the child who had continued to reside with him, but also ordered father to pay mother back child support, denying him credit for the time the children lived with him. Id. at p 6, 628 P.2d at 359.

¶13 The facts of McNeal presented a question of first impression: "should a father, ordered to pay $150.00 per month child support, be allowed a credit against an arrearage in child support for the time when the children were living with him, although the original divorce decree had not been modified." Id. at p 1, 628 P.2d at 359. The supreme court acknowledged that, although there can be no retroactive modification of a divorce decree by agreement between the parties without court approval, the "original absolute rule against retroactive modification should admit of some qualification." Id. at p 11, 628 P.2d at 360. The court also recognized that other jurisdictions have allowed a father "credit against child support arrearages for expenses accrued as a result of his custody of the child, or for other voluntary expenditures made on behalf of the child, if equity would so dictate under the particular circumstances, provided the allowance of credit would not do an injustice to the mother." Id. at p 8, 628 P.2d at 359.

¶14 Therefore, the Oklahoma Supreme Court held, "In the case at bar, the equities would permit [father] to receive credit for the payments made by him during the time his children lived with him." Id. at p 13, 628 P.2d at 360. In reaching this decision, the court reasoned that, "[b]ecause child support payments are for the benefit of the children, rather than the custodial parent, it would be inequitable to effectively force [father] to pay twice for their support." Id. As a result, McNeal provided a trial court some "equitable flexibility" in determining arrearages by authorizing it to allow a parent credit for alternative compliance with a child support order.

¶15 Relying on McNeal, several years later, the Oklahoma Court of Civil Appeals decided Kissinger v. Kissinger, 1984 OK CIV APP 52, 692 P.2d 71, expanding McNeal far beyond what we perceive as its intended reach. In Kissinger, the parties divorced, mother was granted custody of the two minor children, and father was ordered to pay child support in the amount of $150 per month per child. Father, alleging the parties subsequently agreed to a lesser amount of child support, did not comply with the support order. ² Id. at p 1, 692 P.2d at 73. Father paid ...