Thrash v. Thrash

• Court: Oklahoma Supreme Court
• Writing for the Court: ALMA WILSON; OPALA; SIMMS
• Citation: Thrash v. Thrash, 809 P.2d 665, 1991 OK 32 (Okla. 1991)
• Decision Date: 02 April 1991
• Docket Number: No. 71173,71173
• Parties: Robert L. THRASH, Appellant, v. Elysia L. THRASH (now McKindles), Appellee.

Page 665

809 P.2d 665

1991 OK 32

Robert L. THRASH, Appellant, v. Elysia L. THRASH (now McKindles), Appellee.

No. 71173.

Supreme Court of Oklahoma.

April 2, 1991.

On Certiorari From the Court of Appeals, Division 2.

By contempt proceedings, Appellee sought to enforce the parties agreement to automatic increases in child support to be paid by Appellant. The terms of the agreement specified in the decree of divorce tied increases in child support to increases in the Appellant's earnings. The District Court of Oklahoma County, Judge Lynnell A. Harkins, presiding, found Appellant not guilty of indirect contempt. The trial court further found child support arrearages in the amount of $35,536.65 and entered judgment in that amount in favor of Appellee. The Court of Appeals reversed the award of child support arrearages.

CERTIORARI PREVIOUSLY GRANTED, OPINION OF THE COURT OF APPEALS VACATED, JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED WITH DIRECTIONS.

Jon L. Hester, P.C., Oklahoma City, for appellant.

Richard L. Hull, Oklahoma City, for appellee.

ALMA WILSON, Justice:

On March 6, 1980, the parties were divorced. The decree of divorce was a consent order executed by the parties and their attorneys. The portion of the decree dealing with child support provided:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the plaintiff be, and he is hereby ordered and directed to pay support payment for the minor child of the parties in the sum of Two Hundred Twenty and No/100 ($220.00) Dollars per month at the present time and the amount of 15% of his gross salary each month, when his gross salary reaches One Thousand Five Hundred and No/100 ($1,500.00) Dollars per month, but in no event shall the child support be less than $220.00 per month until the said minor child reaches majority or becomes emancipated.

The plaintiff/father (appellant) paid the base $220.00 per month for the child support to the defendant/mother (appellee). On December 9, 1987, the appellee filed an Application for Contempt Citation alleging that through 1986, the appellant was in arrears for child support in the amount of $31,876.80, based upon his income tax returns for those years. The trial court found the appellant not guilty of indirect civil contempt, but found a child support arrearage existed in the amount of $35,536.65 for the period from December, 1982, through December, 1987. Judgment was granted in that amount. The Court of Appeals reversed the judgment.

This case presents two issues. May an agreed divorce decree provide for automatic increases in child support based upon increases in the non-custodial parent's earnings? Where the custodial parent has failed to demand the increased payments as agreed, should laches apply to bar enforcement of the agreed judgment? We hold that such an agreed decree may be enforced according to the agreement, and that under the facts of this case, laches should not apply.

The appellant argues that the case of Lairmore v. Lairmore, 617 P.2d 892 (Okla.1980), dealt with the issue of whether or not child support can be increased automatically and that the case held that a trial court is prohibited from providing for automatic increases in child support based upon a single criterion. The appellant contends that the language in Lairmore and the reasoning behind it precludes an automatic increase in the support he must pay because the clause in the parties' decree authorizing an automatic increase is invalid and unenforceable. We are unable to agree with appellant's reasoning because of distinctions which must be recognized between the Lairmore case and the case at bar.

In Lairmore a portion of the divorce decree provided for automatic increases in child support on the 10th, 13th, and 16th birthdays of the litigants' children. This Court held that automatic increases in child support based upon a single criterion was speculative and therefore improper. However, we note that the automatic increase was set by the trial court in Lairmore and we view that fact as a crucial distinction. Lairmore was an appeal from the ruling of the trial court. In the case at bar, there was no appeal from the decree. The agreed clause providing for automatic increases in support was not challenged until the appellee attempted to enforce it more than seven years after the decree became effective.

This Court has in the past allowed parties to enter consent orders with provisions included which the trial court would not have the authority to make. The Court in Greeson v. Greeson, 208 Okla. 457, 257 P.2d 276 (1953), enforced a consent order which retroactively modified child support. That consent order relieved the former husband of liability for unpaid installments accrued up to the time of the entry of the order. The Court acknowledged that a trial court only had the authority to modify an order for child support prospectively. The Court held that while the order was void as a court order, as a consent order it had the nature of a contract, and that in the absence of fraud or mistake, was binding between the parties. Greeson, 257 P.2d at 278. The Court then applied rules of contract in construing the agreement.

The exceptions to the computation of child support under the Child Support Guideline Schedule, 43 O.S.Supp.1990, § 119, expressed in 43 O.S.Supp.1990, § 118, authorize the trial court to consider agreements for payment of child support where the parties are represented by counsel. The trial court is not bound by such an agreement where the amount of child support so indicated is unjust, inequitable, unreasonable or inappropriate under the circumstances or not in the best interest of the child. The challenged provision for automatic increases in child support in the agreed decree is not contrary to the public policy of this state. Thus, the agreement by the parties, set forth in the decree and approved by the trial court, providing for future increases in child support based upon the single criterion of the non-custodial parent's increased ability to pay is not unenforceable per se.

Under Lairmore, evidence of a single criterion such as age of the child, income or location is not sufficient to establish the financial positions and needs of the parties, which must be considered by the trial court in awarding child support. However, neither the duty nor power of the trial court to award or modify child support is at issue. ¹ At issue is the enforceability of the parties' increase-of-support agreement as to child support. The evidence presented in this case reveals that such an agreement existed and neither fraud nor mistake was proven. The challenged child support provision in the consent decree of the parties may be judicially enforced. ²

The appellant also argues that the equitable doctrines of waiver, estoppel and laches should bar recovery by the appellee. He cites Kissinger v. Kissinger, 692 P.2d 71 (Okla.App.1984) which concluded that the holding of McNeal v. Robinson, 628 P.2d 358 (Okla.1981), aligned Oklahoma with a majority of American jurisdictions and England which observe the general rule that in proceedings to enforce an order for child support various defenses are available to the obligor such as laches, estoppel, waiver, acquiescence, release or agreement. We have previously cited Greeson which allowed a retroactive modification by agreement. McNeal allowed a modification based upon the equitable consideration that the former husband, who had been ordered to pay child support for two children, ceased making those payments when the children moved in with him. The Court did not find any evidence in the record that the former wife had incurred any expenses in anticipation of the return of the children. The appellant is correct in concluding that equitable defenses may be invoked to bar the recovery of delinquent child support payments.

Because the appellee made no attempt to enforce the automatic increases in child support from the time the parties were divorced in March of 1980 until the appellee filed her Application for Contempt Citation on December 9, 1987, the appellant contends that the appellee has waived her right to now collect these sums. We do not agree. The testimony during the hearing on this matter revealed that the appellee did not learn of appellant's increases in wages until March of 1986. Defendant's exhibit 10 is a letter to the appellant dated 5-20-86, revealing that the subject of increasing child support had already been proposed. ³

The record reveals that the trial court applied a five year statute of limitations, pursuant to this Court's holding in Hough v. Hough, 206 Okla. 179, 242 P.2d 162 (1952). The trial court granted a judgment for an arrearage from December, 1982, through December, 1987, which is five years from the time the Application for Contempt Citation was filed. No set of facts has been stated for this Court to conclude that the appellant may in this case defeat the claim for the arrearage by interposing equitable defenses.

Even though the appellant is not entitled to relief from payment of the arrearage, he should not be required to pay more than the consent decree required. An appeal reviewing child support is one of equitable cognizance. This Court will review the whole record, weigh the evidence and affirm the judgment only where the judgment rendered is just and equitable. If the judgment is not just and equitable, this Court will render or cause to be rendered a proper judgment. Brown v. Brown, 607 P.2d 1358, 1359 (Okla.1980).

The record does not reveal how the trial court calculated the amount of the arrearage. From examining the evidence we conclude that the trial court erroneously failed to allow appellant credit for the monthly payments of $220.00, which all parties agree were made over the five year period from which the arrearage was calculated.

The attorney for the appellant stipulated during the hearing that the Affidavit of...