Miller v. Miller

• Decision Date: 06 June 1977
• Citation: 29 Or.App. 723,565 P.2d 382
• Parties: , 100 A.L.R.3d 1120 Linda Louise MILLER, Appellant, v. Dennis Raymond MILLER, Respondent.
• Court: Oregon Court of Appeals

Page 382

565 P.2d 382

29 Or.App. 723, 100 A.L.R.3d 1120

Linda Louise MILLER, Appellant, v. Dennis Raymond MILLER, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Feb. 28, 1977.

Decided June 6, 1977.

Richard J. Smith, Klamath Falls, argued the cause and filed the brief for appellant.

Robert F. Webber, Medford, argued the cause for respondent. On the brief was Pickens & Webber, Medford.

Before SCHWAB, C. J., and LEE and JOHNSON, JJ.

LEE, Judge.

Wife appeals from an order modifying a decree of divorce entered January 16, 1968 which provided in pertinent part that a "Satisfaction of Judgment and Decree" executed by her on January 8, 1973 constituted a valid satisfaction "as to all sums due under the Decree * * * " as of that date. ¹

Under the terms of the original decree wife had been awarded both custody of the parties' three minor children and a monthly judgment against husband of $150, reflecting a support obligation of $50 per child. The evidence is persuasive that from the date of the decree husband's contributions toward the support of his children have been trivial at best; it is undisputed that he has made none of the child support payments required under the decree. In effect the children involved were supported solely by their mother and her second husband, whom she had married in March of 1968, throughout the five-year period between the entry of the decree and the execution of the disputed "satisfaction." That satisfaction, signed by wife, provided as follows:

"KNOW ALL MEN BY THESE PRESENTS, That the undersigned, being the plaintiff in that certain divorce suit in the Circuit Court of the State of Oregon for the County of Josephine, entitled * * * Miller v. * * * Miller * * * wherein judgment and decree was entered in favor of the undersigned * * * does hereby certify and declare that said judgment and decree has now been fully paid and satisfied, and that this certification is made, executed, and delivered in order that the records in said County and State and otherwise may reflect such full payment and satisfaction."

More than three years after its execution wife filed her motion to set the satisfaction aside, contending (1) that she had signed the instrument in reliance upon husband's intentional misrepresentations as to its effect, (2) that the satisfaction was unenforceable because she had received no consideration for its signing, and (3) that the instrument ought to be declared invalid as against public policy. Following a hearing on this motion the court entered the order from which wife has appealed.

Despite the fact that the disputed instrument is framed in what appear to be unambiguous terms, wife testified below that when she signed the document she was, as a result of misrepresentations on the part of husband, under the impression that it was to have the limited effect of removing a judgment lien from a specific piece of real property husband was then attempting to sell, and that in consenting to the execution of the instrument she had not intended to grant a "satisfaction" of any greater consequence. In contrast to the testimony offered by wife, husband testified unequivocally that prior to securing her signature he specifically explained that it would, if signed, serve to eliminate altogether the accrued child support judgment. Simply stated, under the circumstances of this case the factual question of whether the satisfaction was the product of a material false representation by husband boils down to one of credibility. In light of the ultimate decision of the court below it is apparent that it found husband to be the more credible; according that finding the "great weight" ² to which it is entitled we are led to conclude that wife has failed to establish that the satisfaction was fraudulently obtained.

In contending that the satisfaction ought to be set aside because it was granted without consideration and is therefore unenforceable, wife is apparently relying upon the general rule that an agreement to take less than the whole amount of a liquidated claim is unenforceable unless as a result of that agreement an additional benefit of some kind accrues to the creditor or the debtor incurs some additional detriment. ³ It is, however, also generally agreed that a debt may be the subject of a gift to the debtor and that such a gift may be effectuated by the execution and delivery to the debtor of a release or satisfaction with the requisite donative intent. ⁴ Where, as in this case, an acknowledgment of satisfaction has been executed in accordance with statutory requirement ORS 18.400(2) that acknowledgment may be said to give rise to an inference that it was made with the requisite intent. Faced once again with what amounts to a factual determination based upon an evaluation of a witness' credibility, we are satisfied that the absence of consideration does not in this case render the formally executed satisfaction invalid.

Finally, wife argues that the satisfaction she apparently voluntarily delivered to husband, unsupported as it was by any consideration, should be invalidated as a matter of public policy for the reason that while a child support judgment is technically awarded to the custodial parent it is created for the benefit and protection of the child or children involved and should not, therefore, be susceptible to elimination at the discretion of the custodial parent. Even assuming that a custodial parent receives child support payments as a trustee, the general rule is that when a trustee has discharged the liability of the trust out of her own funds, she is entitled to reimbursement out of the trust funds; ⁵ where, as here, a custodial parent has in effect discharged the liability of the trust i. e., the accrued unpaid child support obligation by actually supporting a child over a period in which a judgment has accrued, that judgment would, it appears, accrue not to the child but to the supporting parent.

Plaintiff in Baker v. Baker, 22 Or.App. 285, 538 P.2d 1277 (1975), attempted to sue her father for support he had allegedly failed to pay during some 14 years of her minority; conceding that her mother had supported her throughout her minority, plaintiff contended that she had nonetheless been damaged by her father's failure to meet his parental obligation to the extent that her standard of living had been reduced. The dismissal of plaintiff's complaint was affirmed by this court which, in accordance with the generally accepted rule, held that where a child has in the past been supported by a single parent any right of action against the noncontributing parent lies not with the child but with the parent who has provided the support. It follows that no cognizable rights of the child are prejudiced when a parent who has individually supported a child in the past elects to release a noncontributing parent from any responsibility arising from a failure to meet his or her parental obligations over the preceding period. Limited in effect to the unpaid child support that had accrued to the date of its execution, the release granted by wife in this case was not, therefore, offensive to "public policy."

Affirmed. Costs to neither party.

JOHNSON, Judge, specially concurring.

This is a case of first impression in Oregon concerning an important issue concerning the legal nature of child support to which the majority has given scant attention. The majority holds that the custodial parent may unilaterally in the absence of fraud release a past due child support obligation. The majority apparently treats a release or satisfaction of child support in the same manner as any other satisfaction of judgment which can only be rescinded if there is proof of fraud or duress. This is contrary to the trend of authority in other jurisdictions which apply greater judicial scrutiny of such releases.

Some jurisdictions hold that private agreements releasing either past or future child support are per se invalid. Hawkins v. Edge, 218 Ga. 463, 128 S.E.2d 493 (1962); Varble v. Hughes, 205 Ga. 29, 52 S.E.2d 303 (1949); McCormick v. Collard, 105 Ind.App. 92, 10 N.E.2d 742 (1937); Ruehle v. Ruehle, 161 Neb. 691, 74 N.W.2d 689 (1956); Ditmar v. Ditmar, 48 Wash.2d 373, 293 P.2d 759 (1956); Mosher v. Mosher, 25 Wash.2d 778, 172 P.2d 259 (1946). Most of these jurisdictions premise the rule on public policy grounds and that it is a breach of fiduciary duty by the custodial parent to make such release. Nebraska concludes that the rule is required as a matter of statutory construction. The Nebraska statute, like ORS 107.135, provides that the court may not modify any support payment that is in arrears. The Nebraska Supreme Court reasons that since the court may not modify, the parties are also powerless to do so. Ruehle v. Ruehle, supra; see Poe v. Poe, 246 Or. 458, 425 P.2d 767 (1967). The District of Columbia holds that any release for past child support is invalid unless there has been prior court approval to ensure the best interests of the child have not been jeopardized. Pilson v. Salvoni, 65 App.D.C. 55, 79 F.2d 411 (1935).

Other jurisdictions as a practical matter have invalidated most releases for past due support by imposing the traditional common law rule that the only consideration for a liquidated debt is something of equal value. Andersen v. Andersen, 89 Idaho 551, 407 P.2d 304 (1965); McCabe v. McCabe, Ohio App., 83 Ohio L.Abs. 19, 167 N.E.2d 364 (1959). ¹ Other jurisdictions have taken the view that courts will look to the nature of the release and will not hesitate to hold it void if the best interests of the child are jeopardized or the agreement is otherwise contrary to public policy. For example, the Iowa Supreme Court held a release invalid where the non-custodial parent agreed to dismiss a change of custody proceeding alleging maltreatment by the custodial parent and forego future visitation in exchange for the release. Anthony v. Anthony, 204 N.W.2d...