Cordova v. Lucero, 1
| Decision Date | 23 April 1981 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 129 Ariz. 184,629 P.2d 1020 |
| Parties | In re the Marriage of Sylvia Ayon CORDOVA, Petitioner-Appellant, v. Alphonso Abel LUCERO, Respondent-Appellee. 4774. |
| Court | Arizona Court of Appeals |
Kenneth A. Winsberg, P. C., by Kenneth A. Winsberg, Phoenix, for petitioner-appellant.
Miller, Mark & Simon, Ltd., by Leonard J. Mark, Phoenix, for respondent-appellee.
The sole issue presented in this appeal is whether a custodial parent can waive the collection of child support arrearages under the particular facts of this case.
The appellant, Sylvia Ayon Cordova, and the appellee, Alphonso Abel Lucero, were divorced on November 16, 1973. The father was offered to pay child support in the sum of $150.00 a month for each of his three minor children. Thereafter the mother remarried and moved to California with her children and new husband.
On November 15, 1974, the mother filed an order to show cause regarding contempt and asked for a decree establishing the arrearages in child support. The father responded and requested the court to modify the decree by reducing the amount of child support. On February 19, 1975, the trial court reserved the issue as to arrearages to be established at a later date and proceeded to enter an order modifying the prior child support order by reducing the monthly payment to $25.00 for each of the minor children. 1
The second marriage of the mother ended in dissolution and she with the minor children returned to Arizona in August of 1978. A second petition for an order to show cause for contempt in the failure to pay child support was filed on August 22, 1978. At this hearing in January 1979, the mother claimed the father owned approximately $6,000 in arrearage on his child support payments. The trial court determined that the mother had waived all claimed past due child support payments through the month of August 1978. The court further ordered all child support payments to be resumed as of September, 1978.
The court's decision appears to be based primarily upon a letter sent in February 1975 by the mother, who was residing in California, to the father here in Arizona. This letter was preserved by the father and introduced into evidence. This letter informed the father that she was going to have the children adopted by her new husband. The letter in very pointed and abusive language further informed the father that she did not want any of his support money and that she did not want him near the children. The father made no further support payments after receipt of the letter. No further demands for child support payments were made upon him until approximately three and one-half years later when he was served in August of 1978 with the second order to show cause.
The mother testified that she received some child welfare benefits in Los Angeles, California, and that she went to the district attorney's office and filed a complaint under the Uniform Reciprocal Support Act. She presented no evidence that the father was ever served or that a hearing was ever conducted in Arizona. There was no evidence as to the time span involved or the amount of such child welfare support received by the mother. 2
The mother argues there was no effective waiver of child support for the minor children because under Arizona law a custodial parent cannot waive or modify a child support order without first securing a court-ordered modification of the existing decree.
The father argues that the trial court properly exercised its discretion in finding the mother had waived the child support arrearages. He reasons that by her waiver and later inaction, he was led to believe he did not need to send the child support payments and that to order such payments now would cause a great injustice and a severe financial hardship. Although never specifically denominated as such, it would appear that the husband is relying upon a theory of equitable estoppel.
All parties to this appeal and this court are in agreement that the parents cannot, as between themselves, retroactively modify a child support judgment. It is further our opinion that a custodial parent can, in certain fact situations, effectively waive the collection of child support arrearages as ordered in such a judgment.
The pertinent provision of A.R.S. § 25-327 A. pertaining to the modification and termination of child support provisions states:
(T)he provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances which are substantial and continuing.
This statutory provision was applied in Jarvis v. Jarvis, 27 Ariz.App. 266, 553 P.2d 1251 (1976), where this court held that installments of child support become vested as they become due and that such child support payments cannot be modified retroactively. Accord, McClanahan v. Hawkins, 90 Ariz. 139, 367 P.2d 196 (1961).
Parties cannot agree between themselves to modify a child support order, for this would constitute an unlawful delegation of the court's authority to determine the facts which could justify a modification of support payments. Johnson v. Johnson, 105 Ariz. 233, 462 P.2d 782 (1970); Evans v. Evans, 17 Ariz.App. 323, 497 P.2d 830 (1973).
While the Arizona law is clear that the parties cannot modify a judgment for court ordered child support payments, we have no dispositive Arizona case law covering the waiver issue before us. In Patterson v. Patterson, 102 Ariz. 410, 432 P.2d 143 (1967), the Arizona Supreme Court ruled, under the particular facts of that case, that laches would not bar the wife, the custodial parent, from collecting child support arrearages. The former husband defended the former wife's attempt to collect child support arrearages by alleging her inaction on the claim for almost one and one-half years barred recovery under the...
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Williams v. Williams
...child again, and its finding that mother never asked father for child support during the time in question. See Cordova v. Lucero, 129 Ariz. 184, 629 P.2d 1020 (Ct.App.1981) (mother waived claim for disputed child support arrearages by writing letter to father advising him she did not want h......
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Marinello v. Glover
...by a court or by the parents. See Lamb v. Superior Court, 127 Ariz. 400, 402, 621 P.2d 906, 908 (1980); Cordova v. Lucero, 129 Ariz. 184, at 185, 629 P.2d 1020, 1021 (App. 1981) (upholding family court's finding that mother waived child support arrearages). In certain factual situations, ho......
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In re Buchli v. Buchli
...Thus, Wife may have waived her claim for arrearages that accrued prior to February 1, 2005. See, e.g., Cordova v. Lucero, 129 Ariz. 184, 186-87, 629 P.2d 1020, 1022-23 (App. 1981) (a custodial parent may waive the collection of child support arrearages). Husband, on the other hand, has cons......
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Albins v. Elovitz
...In Arizona, a custodial parent can waive child support payments. Ray v. Mangum, 163 Ariz. 329, 788 P.2d 62 (1989); Cordova v. Lucero, 129 Ariz. 184, 629 P.2d 1020 (App.1981). We see no reason why, in connection with such a waiver, the non-custodial parent, in consideration of the waiver, ca......