Divorce Lawyers New York - Recent Family Law Decisons (54)
RECENT FAMILY LAW DECISIONS (54)
Oral Agreement
An oral agreement between former spouses (defendant husband was an attorney) that after plaintiff’s remarriage defendant would increase child support payments and create a trust into which defendant would pay from the date of plaintiff’s remarriage until a set time, approximately nine years later, at which time the principal of the trust would be paid to plaintiff, was binding based on plaintiff’s testimony, corroborating testimony actions of defendant, and the rule that no person shall be permitted to utilize the Statue of Frauds to work an injustice or fraud.
Past Due
In General
Past-due installments are a vested right and the court has no authority to modify them.
The circuit court’s procedure for discharging vested support and maintenance payments which are in arrears lies within the sound discretion of the trial judge and will not be set aside absent an abuse of that discretion.
Past-due child support payments are a vested right, and reduction relating to a period of time prior to filing of the petition or motion for modification is error.
Past-due child support installments were vested rights and appellee was not entitled to equitable credit, if appellee felt that he should not have to provide child support payments during the summer months in which he had custody of their child, his remedy was to have sought modification by the court of the support order prior to the due date of the opposed installments.
Past-due installments of child support are a vested right and usually are not subject to modification by the court as to amount.
Estoppel
The doctrine of equitable estoppel did not bar the custodial parent’s petition for arrearages where there was no act or omission of the custodial parent upon which he relied; rather, he did not comply with the provisions of the divorce decree because of his reliance on the advice of his attorney and because he believed he was no longer liable for the amount specified in the decree and that he could unilaterally reduce his payment.
Where respondent took custody of his son with the understanding he would not have to continue to pay child support so long as the son remained with him, and in becoming the custodial parent of his son and providing for his son’s needs while he lived with him, respondent suffered a detriment, his reliance on an agreement was not unreasonable for he and petitioner had entered into similar agreements in the past without incident; incident; thus, the trial court’s determination to deny petitioner support arrearages was supported on a theory of equitable estoppel.
Where the only act or omission on the part of the wife that could have been considered in estoppel was the statement by the wife that she would not pursue the support if the husband would not visit the children, there was no showing of any detriment to the husband, and equitable estoppel was neither appropriate nor applicable.
RECENT FAMILY LAW DECISIONS (55)
Where father testified that his wife agreed to the reduction in child support on the condition that he help his son find a place to live and that he support him financially, where father testified further that he paid his son more than $4,000 over a two year period for housing, food and clothing, and where according to father, mother did not at any time during the almost five year period between the first reduced payment and the filing of her petition for arrearages object to the reduction in child support payments, father’s payments to his son were made in reliance upon the statements and conduct of mother and, therefore, mother was equitable estoppel.
Child support payments become a vested right as they accrue and cannot be unilaterally terminated by the defendant, and neither can they be modified as to amount or time of payment. In the proper case, however, courts will give effect to an agreement between the parties to waive or reduce payments, or courts will apply the doctrine of equitable estoppel
Where the mother, who was the custodial parent under the divorce decree, either consented to or acquiesced in a child living with the father and the father supported the child, the doctrine of equitable estoppel may be applied to allow the father an equitable custody. The test has also been stated more broadly to be whether the conduct of the plaintiff mother, as shown by all the circumstance of the case, was sufficient to justify the conclusion that the enforcement of the decree as to unpaid support would be unjust and inequitable to the defendant father.
In cases allowing an equitable credit against support arrearages, the essential element of detrimental reliance has been present; that is, the court has found that the defendant father relied upon the plaintiff mother’s conduct indicating her willingness to give up or modify her right to custody or support.
It is well-established that past-=due installments for child support are the vested rights of the designated recipients and the court lacks the authority to modify those amounts which have already accrued; therefore, any modification in child support payments will only act prospectively.
The required elements for equitable estoppel were not presented where the plaintiff had not by her conduct caused the defendant to suffer any irreparable harm, the failure on the plaintiff’s part to make any demand on the defendant until five years after the defendant reduced payment did not create an equitable estoppel, and the record did not reveal that there was an agreement between the parties to reduce the amount due for child support nor did it indicate that the defendant relied upon any conduct by the plaintiff.
Payments
Even though ex-husband was paid bi-monthly, he could be ordered to make weekly payments, and the trial court was within its discretion to order an increase in child support to $90 per week.
Trial court did not err in refusing to abate child support payments for the time during which husband claimed that he did not know the whereabouts of the wife and child and this section precluded any modification of child support payments which had accrued.
