Marriage of Duerr, In re

• Decision Date: 29 July 1993
• Docket Number: No. 1-91-3295,1-91-3295
• Citation: 621 N.E.2d 120,250 Ill.App.3d 232,190 Ill.Dec. 251
• Parties: , 190 Ill.Dec. 251 In re the MARRIAGE OF Nancy O. DUERR, Petitioner-Appellant, and Gordon John Duerr, Jr., Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 120

621 N.E.2d 120

250 Ill.App.3d 232, 190 Ill.Dec. 251

In re the MARRIAGE OF Nancy O. DUERR, Petitioner-Appellant and Gordon John Duerr, Jr., Respondent-Appellee.

No. 1-91-3295.

Appellate Court of Illinois First District, Fourth Division.

July 29, 1993.

David I. Grund, Linda K. Schneider of Grund & Nadler, P.C., Chicago, for petitioner-appellant.

Diane M. Bruzas, Chicago, for respondent-appellee.

Presiding Justice JIGANTI delivered the opinion of the court:

Nancy Duerr appeals from an order of the circuit court denying a petition for rule to show cause that she brought against her ex-husband, Gordon Duerr, for allegedly failing to pay back child support in the amount of $18,900. The trial court found that Nancy was estopped from bringing her action. The circuit court also denied Nancy's request that Gordon contribute to the psychiatric and private education expenses of their oldest son, Jay, and pay for Nancy's attorney fees. The court ordered Nancy to contribute child support for the couple's youngest son, Bradley, and modified the amount of child support Gordon is obliged to pay Nancy.

The marriage of Nancy and Gordon Duerr came to a formal conclusion in Indiana on April 8, 1983. By court order, Nancy was awarded custody of the couple's children, Jay and Bradley. Gordon was ordered to pay child support. In May of 1983 Nancy moved with the children to Cook County in Illinois. Thereafter, in August of 1987, the Illinois court increased Gordon's child support payments to $1,350 per month for both children.

In the spring of 1988, Gordon took Jay and Bradley on a trip to Florida. While on the trip Bradley expressed a desire to live with Gordon. After the Florida trip, the children returned to their residence in Illinois. Later, in May of 1988, both boys went to live with Gordon in Logansport, Indiana. In response to the children's move, Gordon purchased a new home for $125,000, adding $75,000 in improvements. Gordon also hired a nanny for the boys and purchased a car for the nanny. Nancy made no child support contributions to Gordon during the time the boys lived with him.

At trial, Gordon testified that after Jay and Bradley came to live with him, he ceased making child support payments to Nancy. Gordon testified that at the time he believed as a matter of "logic" that "since they were living with [him] that it was obvious to [him] that [he] didn't need to pay child support." Gordon also testified that in June of 1988, after the children moved in with him, Gordon sent Nancy 11 post-dated checks in the amount of $1,350 each. With the checks Gordon enclosed a note to Nancy explaining that he understood that having the children move out was a difficult transition for her. Gordon testified that he did not view the checks as child support payments, but rather as assistance to Nancy for her lease payments. In the note to her Gordon explained to Nancy that he recognized that she would not be able to adjust her living expenses immediately, however, he requested that whenever Nancy obtained a new lease she return any remaining checks to him. Gordon testified that in a subsequent conversation with her, Nancy told him she would do the best she could. Gordon admitted that he received no formal response from Nancy regarding the nature of the payments he forwarded to her. In explaining why he did not seek a court order formally changing the custody and support arrangements, Gordon referred to the August 1987 court order increasing his child support payments and testified that he did not feel like going through another protracted litigation. As of May 1989, Gordon provided no further payments to Nancy.

In her testimony, Nancy admitted receiving and cashing the 11 post-dated checks; however, she denied receiving any note of explanation from Gordon. Nancy denied that she and Gordon had had any discussion or agreement regarding the cessation of child support payments from him to her. Nancy testified that she did not ask Gordon for any further payments after she cashed the last post-dated check of April 1989.

In June of 1990, the couple's oldest son, Jay, returned to live with Nancy in Chicago. Bradley remained with his father. Nancy enrolled Jay in a private school at an approximate cost of $8,000 per year. Nancy testified that Gordon signed a contract with the school and paid an $800 deposit; however, he refused to pay any further tuition. Nancy presented no evidence indicating a need for Jay to attend private school. Nor did she provide evidence corroborating her testimony regarding the expense she incurred in providing a private education for Jay. Nancy also obtained psychological counseling for Jay. She testified that when Jay returned from living with his father he was depressed, lethargic, and "nonparticipatory." Nancy stated that after several psychiatric counseling sessions, Jay's mental state greatly improved. Nancy did not provide independent documentation of Jay's therapy expenses. Neither of the counselors who treated Jay testified at trial.

Nancy's 1991 gross income to date of trial (approximately five months) was approximately $21,000 with monthly expenses of $12,000. Nancy did not provide documentation of her monthly expenses. In 1990, Nancy earned $75,000 selling realty for J.M.B. Realty, Inc. At the time of trial she was no longer employed by J.M.B. Gordon's gross monthly income for 1991 was $17,010, with expenses of $12,160. Gordon also receives bonuses from the corporations he has interests in.

On July 6, 1990, Nancy filed a petition for rule to show cause, alleging Gordon owed her child support arrearage in the amount of $18,900 for the period May 1989 to July 1990. Gordon responded to Nancy's charge with two affirmative defenses: subsequent agreement between the parties and equitable estoppel. The trial court found that the parties had agreed in May of 1988 that the two boys would go to live with their father. The court further determined that Gordon had suffered a detriment as a result of assuming full custody of the children. As a consequence, the trial court ruled that Nancy was estopped from bringing a petition for rule to show cause. On appeal, Nancy asserts that the requisite elements of equitable estoppel are not present in this case, and therefore the trial court erred in denying her petition. We disagree.

The defense of equitable estoppel is available where a person's statement or conduct induces another to rely to his or her detriment on the statement or conduct. (In re Marriage of Webber (1989), 191 Ill.App.3d 327, 138 Ill.Dec. 582, 547 N.E.2d 749.) The reliance should be reasonable. (Blisset v. Blisset (1988), 123 Ill.2d 161, 121 Ill.Dec. 931, 526 N.E.2d 125.) Within the context of the general rules applying to child support, the doctrine of equitable estoppel is an exception to the otherwise inflexible rule that child support payments become vested when they accrue. Elliott v. Elliott (1985), 137 Ill.App.3d 277, 91 Ill.Dec. 923, 484 N.E.2d 482.

The Illinois courts have ruled that the equitable estoppel exception will generally be inapplicable where the respondent has unilaterally determined that the child's emancipation relieves the respondent of the obligation to pay child support. This is true despite the petitioner's silence, which the courts have viewed as not the kind of conduct that in itself creates an equitable estoppel. (See In re Marriage of Jackson (1989), 179 Ill.App.3d 479, 128 Ill.Dec. 505, 534 N.E.2d 687; Jones v. Meade (1984), 126 Ill.App.3d 897, 81 Ill.Dec. 786, 467 N.E.2d 657; Jozwick v. Jozwick (1979), 72 Ill.App.3d 17, 28 Ill.Dec. 321, 390 N.E.2d 488.) Further, the supreme court of Illinois has determined that the petitioner is not equitably estopped from seeking child support arrearage, albeit the petitioner admittedly agreed to waive support in exchange for the respondent's relinquishment of visitation rights. (Blisset v. Blisset (1988), 123 Ill.2d 161, 121 Ill.Dec. 931, 526 N.E.2d 125.) The court reasoned in part that the forfeiture of visitation rights and the failure to anticipate an action for unpaid support did not constitute the detriment required to establish an estoppel defense. (Blisset, 123 Ill.2d at 169, 121 Ill.Dec. at 935, 526 N.E.2d at 129.) The court also stated that as a general rule parties may not bargain away their children's support or visitation interests. Blisset.

In contrast to the above-noted cases, the Illinois courts have tended to find that an informal change in custody preceding a cessation of child support payments lends credibility to an assertion of the defense of equitable estoppel. Johnston v. Johnston (1990), 196 Ill.App.3d 101, 142 Ill.Dec. 743, 553 N.E.2d 93; In re Marriage of Webber (1989), 191 Ill.App.3d 327, 138 Ill.Dec. 582, 547 N.E.2d 749; Strum v. Strum (1974), 22 Ill.App.3d 147, 317 N.E.2d 59; also see discussion in Baker v. Baker (1990), 193 Ill.App.3d 294, 140 Ill.Dec. 303, 549 N.E.2d 954. Contrast Elliott v. Elliott (1985), 137 Ill.App.3d 277, 91 Ill.Dec. 923, 484 N.E.2d 482 (court found respondent improperly relied on petitioner's silence as agreement to reduce unallocated child support for one child out of four who went to live with respondent).

In these cases, as in the present one, whether the parties had agreed to the cessation or suspension of child support payments during the time the custody arrangement was altered, was a matter in dispute. However, the fact that the respondent was in custody of the child and fully supporting him or her during the period in question provided evidence that the respondent was acting to his or her detriment in reasonable reliance upon an agreement with the petitioner. Under these circumstances, the trier of fact could properly find the petitioner estopped from asserting an arrearage in child support. Johnston v. Johnston (1990), 196 Ill.App.3d 101, 142 Ill.Dec. 743, 553 N.E.2d 93.

It is important to note that in these cases the child's support...