Schnepp v. State ex rel. Dept. of Economic Sec.

• Decision Date: 11 July 1995
• Docket Number: No. 1,CA-CV,1
• Citation: 183 Ariz. 24,899 P.2d 185
• Parties: In re the Marriage of Kenneth Leroy SCHNEPP, Jr., Petitioner-Appellee, v. STATE of Arizona, ex rel., the DEPARTMENT OF ECONOMIC SECURITY (Evonne Grace Schnepp), Respondent-Appellant. 93-0489.
• Court: Arizona Court of Appeals

Page 185

899 P.2d 185

183 Ariz. 24

In re the Marriage of Kenneth Leroy SCHNEPP, Jr., Petitioner-Appellee, v. STATE of Arizona, ex rel., the DEPARTMENT OF ECONOMIC SECURITY (Evonne Grace Schnepp), Respondent-Appellant.

No. 1 CA-CV 93-0489.

Court of Appeals of Arizona,

Division 1, Department D.

July 11, 1995.

[183 Ariz. 26] Lewis & Hull by Kevin S. Lewis, Phoenix, for petitioner-appellee.

Grant Woods, Atty. Gen. by Mark E. Drury, Connie S. Scoggins, Asst. Attys. Gen., Phoenix, for respondent-appellant.

OPINION

VOSS, Judge.

In this appeal we hold that Father's child support obligation did not terminate when he signed a consent to adopt form. We further hold that the record does not contain evidence to support the trial court's conclusion that Mother waived the right to collect arrearages that accrued between the date Father signed the consent to adopt form and the date he learned that the adoption was not finalized.

FACTS AND PROCEDURAL HISTORY

Appellee Kenneth Leroy Schnepp, Jr., ("Father") and Evonne Grace Schnepp Groff ("Mother") were married in August 1974. Two children were born of the marriage. The parties' marriage was dissolved on August 12, 1976. The court awarded Mother custody of the minor children with reasonable visitation rights to Father, and ordered Father to pay child support in the amount of $50 per month per child.

Soon after the dissolution decree was entered, Father enlisted in the U.S. Navy. While serving in the Navy, his child support obligation was paid by a wage allotment. Following his discharge from the Navy in 1980, Father stopped making child support payments--furthermore, he stopped visiting the children.

Father remarried in 1981 and started a new family. In 1982, Father and his new wife briefly visited the children; however, he was introduced to them as a friend of their uncle. At that time, Mother asked Father to resume paying child support. Father and Mother also discussed the possibility of adoption of the children by Mother's new husband. Nothing was resolved as a result of their discussion. Father continued to not pay child support, and he made no further attempts to visit the children.

In 1986, Mother contacted Father and asked him to help pay for his daughter's medical bills. Father told her he could not afford to give her any money, but he offered to add the daughter to his health insurance policy. Mother called Father a few more times and threatened to take him to court to seek back child support. At some point, Mother told Father that she did not expect anything from him.

Later in 1986, Father received in the mail a Consent of Natural Parent to Adoption Form. The form provided that by giving consent, Father waived notice of any further proceedings regarding the adoption. He executed the consent form and mailed it to Mother. Father believed that by signing the consent form he gave up his right to have any contact with his children, and he was released from any liability for future child support payments or arrearages. However, Father admits that Mother never promised him a release from his obligation of child support. Although Mother did not file the adoption papers, Father assumed that the children had been adopted. Father never tried to verify whether the final order of adoption was entered.

In January 1993, the State obtained an Order of Assignment against Father's wages for $560 per month, which represented $100 per month for current child support and $460 per month for child support arrearages. It was at this time that Father learned the children had not been adopted. A review hearing was set to determine the amount of arrearages and physical custody of the children.

Following the hearing, the trial court ruled that Mother waived child support from the time Father signed the consent to adopt form in 1986 until the Order of Assignment was issued in 1993, which was the time when Father learned that the adoption was not finalized. The court applied the equitable defenses of laches and/or equitable estoppel to find that Mother waived the right to collect any arrearages owing for that time. The court found that Mother abandoned the claim for arrearages and/or Father was prejudiced by her failure to inform him that the adoption was not finalized. The trial court found that between June 1986 and January 1993, Father, reasonably relying on the assumption that he no longer was obligated to pay support, had four children with his second wife.

The trial court ultimately found that Father was obligated to pay child support of $100 per month from January 1980 to June 1986, which he had not paid. The obligation for that period totaled $6,600. And when Father learned in January 1993 that his children had not been adopted, his obligation to pay child support resumed. Determining the total amount of time the children lived with Mother from January 1993 to April 1993 before they were emancipated, the court found Father owed $100 for child support during this time period. Deducting payments made from wage assignments, the trial court concluded that Father owed $5,645 for back child support from January 1980 to June 1986, and from January 1993 to April 1993.

The State appealed from the order.

DISCUSSION

A. Standard of Review

In reviewing findings of facts and conclusions of law, we are bound by the trial court's findings of fact unless they are clearly erroneous. Arizona Bd. of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 257, 806 P.2d 348, 351 (1991). However, we are not bound by the trial court's conclusions of law, and we may reach our own conclusions of law based on the facts found by the trial court. Id.

B. Child Support Arrearages

1. Termination of Child Support

On appeal, the State argues that the trial court erred in finding a waiver of child support because the evidence does not support a finding of waiver, and Mother had no authority to waive child support arrearages by asking Father to sign an adoption consent form.

We first address the latter argument. The State is correct that under Arizona law, without court approval Mother has no authority to modify a child support order through an agreement with Father. Only the court has the authority to determine whether the facts justify modification of a support award. Ariz.Rev.Stat.Ann. ("A.R.S.") §§ 12-2453(C), 25-327(A) (Supp.1994); State ex rel. Dept. of Economic Sec. v. Dodd, 181 Ariz. 183, 185, 888 P.2d 1370, 1372 (App.1994); In re Cordova v. Lucero, 129 Ariz. 184, 186, 629 P.2d 1020, 1022 (App.1981). However, the issue here is whether the equitable defenses of waiver, estoppel, or laches otherwise prevent Mother's claim for arrearages.

We note that the only issue before us regarding waiver is whether the trial court erred in concluding that Mother waived or was estopped from recovering child support arrearages that accrued from the time Father signed the adoption consent form until he learned that the adoption was not finalized. In Father's answering brief he contends that the trial court was correct in its conclusion that Mother waived the child support owed by Father. To support his argument, Father relies on events that occurred between 1980 and 1986. Because the trial court granted judgment in favor of Mother for arrearages that accrued from January 1980 to June 1986, and Father did not appeal or cross-appeal from the judgment, the portion of the judgment concerning arrearages from 1980 to 1986 is not at issue on appeal.

We must determine whether Father's signing of the adoption consent form ended his obligation for future child support. We conclude that it did not. The execution of a consent to adoption alone is insufficient to terminate a noncustodial parent's court-ordered obligation to make child support payments. Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420, 424 (1986). As set forth in A.R.S. section 8-539 (1989), a parent's duty to support his or her child does not end until a final order of adoption is entered:

An order terminating the parent-child relationship shall divest the parent and the child of all legal rights, privileges, duties and obligations with respect to each other except the right of the child to inherit and support from the parent. This right of inheritance and support shall only be terminated by a final order of adoption.

This statute reveals the legislature's emphasis regarding the importance of the child support obligation; even an order terminating the parent-child relationship does not terminate the child's right to receive support from the parent. Only a final adoption order suffices to terminate the parent's duty of support.

Given this compelling indication of the significance of the support obligation, as well as the law that parents have no authority to modify child support orders without court approval, we conclude that the execution of a consent to adoption form does not terminate the signing parent's duty to support the child or children to be adopted. Therefore, after Father signed the adoption consent form, his obligation to pay child support continued. Because the adoption was never finalized, Father's obligation did not end.

2. Waiver

To establish that Mother waived the claim for child support arrearages, Father must show by "clear and compelling evidence" that Mother voluntarily and intentionally abandoned a known right. Dodd, 181 Ariz. at 186, 888 P.2d at 1373; In re Ray v. Mangum, 163 Ariz. 329, 332, 788 P.2d 62, 65 (1989); Cordova, 129 Ariz. at 187, 629 P.2d at 1023. If the evidence reflects a dispute between the parties over their unspoken assumptions and intentions, one party's belief that the other waived child support cannot provide clear and convincing evidence of waiver. Ray, 163 Ariz. at 333, 788 P.2d at 66. The level of evidence necessary to establish waiver includes a waiver in writing or the custodial parent's admission that he or she intended to waive child support arrearages. Id. For example, in Cordova, the mother wrote a...