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Docket Number

No. 89CA0477

Attorney(S)

Donna J. Schmalberger, for Appellant. No Appearance for Appellee.

Judges

Jerry N. Jones

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Smart Summary

Case Summary: In re the Marriage of Ferne Dennin (a/k/a Ferne Lohf) v. David William Lohf

Citation / Docket: No. 89CA0477

Court: Colorado Court of Appeals, Division IV

Date Decided: April 25, 1991

Panel: Opinion by Judge Jones; Judges Hume and Reed concurred.

Counsel: Donna J. Schmalberger for Appellant; No appearance for Appellee.

Factual and Procedural Background

The parties' marriage was dissolved by decree entered September 21, 1977. The mother was awarded custody of the parties' daughter and the father was ordered to pay $75 per month in child support. The father complied with the decree until 1981.

In April 1981, the parties entered into an agreement under which the father agreed to consent to the child's adoption by her stepfather in exchange for termination of his support payments. The record reflects the father had no contact with the mother or the child from the 1977 decree until the 1981 agreement. The mother acknowledged that between April 1981 and June 1985 she neither informed the father of address changes nor notified him that the adoption had not been completed.

The trial court granted the father limited equitable relief from accrued child support arrearages, applying the doctrine of equitable estoppel to relieve some of the arrearages. The mother appealed that order. The Court of Appeals affirmed in part, reversed in part, and remanded with directions, holding that equitable estoppel properly applied to arrearages arising between April 1981 and June 1985 but did not apply for the period June 1985 to December 1986.

Legal Issues Presented

Whether the doctrine of equitable estoppel can provide relief from accrued child support arrearages despite statutory provisions treating past due child support as vested obligations.
Whether parents may prospectively agree to terminate a parent's child support obligation.
Whether equitable estoppel applied to bar collection of child support arrearages for the periods April 1981–June 1985 and June 1985–December 1986, respectively.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wright v. Wright, 182 Colo. 425, 514 P.2d 73 (1973)	Parents of minor children cannot agree to terminate prospectively either parent's child support obligation.	The court acknowledged Wright as supporting the general rule that prospective termination by agreement is not permitted, but distinguished that rule from equitable relief where estoppel applies under appropriate factual circumstances.
Carey v. Carey, 29 Colo. App. 328, 486 P.2d 38 (1971)	Sets forth elements for equitable estoppel: reasonable reliance to one's detriment upon acts or representations of another, and lack of knowledge or convenient means of knowing the facts.	The court relied on Carey to identify the requirements for applying equitable estoppel as an exception to the rule that past due child support is vested and not cancellable.
In re Marriage of Greenblatt, 789 P.2d 489 (Colo.App. 1990)	Contains language suggesting retroactive abatement of arrearages is never available and emphasizes statutes facilitating enforcement of support orders.	The court distinguished Greenblatt, explaining that statutory provisions cited in Greenblatt serve enforcement purposes and do not preclude a court's equitable power to relieve arrearages in circumstances rendering enforcement fundamentally unfair; the court noted Greenblatt recognized some C.R.C.P. 60 grounds may provide relief.
In re Marriage of Murray, 790 P.2d 868 (Colo.App. 1989)	Indicates that if an agreement terminated a father's support obligation in return for his consent to adoption, equitable estoppel could be asserted as a defense.	The court cited Murray to support the proposition that equitable estoppel may be invoked where a parent reasonably relied on an agreement to surrender parental rights in connection with an adoption.

Court's Reasoning and Analysis

The court began by acknowledging the established rule that parents may not prospectively terminate a parent's child support obligation by private agreement (citing Wright and Carey). It then recognized the statutory provision, § 14-10-122(1)(c), C.R.S., treating past due child support as vested and not subject to cancellation, but observed that equitable principles—specifically equitable estoppel—may provide an exception in appropriate circumstances and that relief under C.R.C.P. 60(b) may be relevant.

The court set out the legal requirements for equitable estoppel drawn from Carey: the asserting party must show reasonable reliance to his detriment on the other party's acts or representations and that he lacked knowledge or reasonable means of knowing the true facts. The court explained that the statutory schemes cited in Greenblatt are aimed at facilitating enforcement of support orders and do not eliminate a court's equitable authority to ameliorate enforcement of judgments for arrearages when enforcement would be fundamentally unfair; the court referenced C.R.C.P. 60(b)(5) and the Greenblatt court's recognition that some Rule 60 grounds may justify relief.

Applying these principles to the facts, the court noted that the father had no contact with the mother or child from 1977 until the 1981 agreement, reasonably relied upon the mother's representations and the agreement terminating support in exchange for his consent to adoption, and had neither knowledge that the adoption was not finalized nor reasonable means of learning that fact. The trial court resolved conflicting evidence in the father's favor, and the appellate court found substantial evidence supporting that resolution.

Consequently, the court concluded equitable estoppel properly barred collection of arrearages that accrued between April 1981 and June 1985. However, because the record reflects that in June 1985 the mother personally informed the father that the adoption had not been completed, the father had no reasonable basis to continue relying on the 1981 agreement after that date. Therefore, equitable estoppel did not apply from June 1985 to December 1986.

Holding and Implications

Core Ruling: The appellate court affirmed in part, reversed in part, and remanded with directions.

More specifically:

The court held that the doctrine of equitable estoppel may properly be applied to afford relief from accrued child support arrearages under the specific factual circumstances of this case, and it upheld the trial court's application of estoppel to arrearages arising between April 1981 and June 1985.
The court reversed the trial court's application of estoppel for the period June 1985 to December 1986 because the mother had informed the father in June 1985 that the adoption had not been completed, eliminating any reasonable basis for continued reliance by the father; the case was remanded with instructions to modify the order to award child support arrearages for that period.
The remainder of the trial court's order was affirmed.

Consequences for the parties: the father is relieved, under equitable estoppel, from liability for arrearages that accrued between April 1981 and June 1985, but is liable for arrearages accruing from June 1985 through December 1986 as the trial court must be instructed to award those arrearages. The opinion applies established equitable-estoppel principles to the facts and clarifies that courts may, in some circumstances, use their equitable powers to provide relief from enforcement of support judgments; the decision resolves only the parties' dispute and applies legal principles to those facts.

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In re the Marriage of Ferne Dennin, a/k/a Ferne Lohf, Appellant, and David William Lohf, Appellee.

Opinion by JUDGE JONES.

Ferne Dennin (mother) appeals the trial court's order granting David William Lohf (father) limited equitable relief from child support arrearages. We affirm in part, reverse in part, and remand with directions.

On September 21, 1977, a decree was entered dissolving the marriage between the parties. The mother was awarded custody of the parties' daughter, and the father was ordered to pay $75 per month in child support.

The father complied with the decree until 1981 when the parties entered into an agreement in which the father agreed to consent to the child's adoption by her stepfather, in exchange for the termination of his support payments. The record reflects that the father had no contact with the mother or the child from the time of the 1977 decree until the agreement was reached in April 1981. The mother acknowledged that between April 1981 and June 1985, she neither informed the father of address changes nor notified him that the adoption had not been completed.

Although we agree with the mother that parents of minor children cannot agree to terminate prospectively either parent's child support obligation, Wright v. Wright, 182 Colo. 425, 514 P.2d 73 (1973); Carey v. Carey, 29 Colo. App. 328, 486 P.2d 38 (1971), we conclude that, here, the mother was equitably estopped from asserting her right to collect a portion of the child support arrearages.

The doctrine of equitable estoppel may provide an exception to the rule set forth in § 14-10-122(1)(c), C.R.S. (1990 Cum. Supp.) that past due child support payments constitute vested obligations which a trial court has no authority to cancel. See C.R.C.P. 60(b). The party asserting an estoppel claim must demonstrate that he reasonably relied to his detriment upon the acts or representations of the other person and that he had no knowledge or convenient means of knowing the facts. Carey v. Carey, supra.

The case of In re Marriage of Greenblatt, 789 P.2d 489 (Colo.App. 1990) contains language suggesting that retroactive abatement is never available and that equitable grounds are relevant only in regard to determining the amount of child support awarded. We conclude, however, that the purpose of the statutory provisions, including § 14-5-110(2), C.R.S. (1987 Repl. Vol. 6B), relied upon by the court in Greenblatt, is to facilitate enforcement of support orders rather than to abrogate the authority of courts to apply equitable principles to ameliorate the enforcement of judgments for support arrearages when warranted by the existence of conditions that would render fundamentally unfair or unjust the enforcement of such judgments. See C.R.C.P. 60(b)(5). The Greenblatt court also recognized that certain grounds presented in C.R.C.P. 60 may present bases for relief from such judgments.

The father in Greenblatt unilaterally stopped making child support payments when the parties' child left the mother's home to live with the father. Thereafter, although the child subsequently returned to live with the mother, the father did not resume making support payments. Thus, the father was aware of the circumstances which required him to resume support payments and could not be heard to contend, after the child returned to his mother, that he had relied to his detriment upon the acts or representations of the mother, and that he had no knowledge of the facts.

Here, the issues revolve around the parties' 1981 agreement providing for the father's termination of support in exchange for his consent to the child's adoption. The trial court, after hearing conflicting evidence, concluded, and we agree, that the father reasonably relied on the agreement and had neither knowledge of the fact that the adoption was not finalized nor any reasonable means by which to gain such knowledge.

Thus, we conclude that the doctrine of equitable estoppel may properly be applied to afford relief from accrued arrearages under such circumstances. See In re Marriage of Murray, 790 P.2d 868 (Colo.App. 1989) (specific statement by the court that if an agreement was entered terminating father's support obligation in return for consent to adoption, equitable estoppel could be asserted as a defense).

A child has an inherent right to support. See In re Marriage of Murray, supra. But, when a court, in the exercise of its equity power, determines that the mother intended that the child be adopted and conveyed that intention to the father, who reasonably relied upon such representation as the good faith intention of the mother, and the court finds that the parties agreed that the adoption was in the child's best interests, the court may conclude, as here, that the doctrine of equitable estoppel may properly be applied to grant relief to that party which relied, in good faith, on the agreement to surrender his rights of parenthood. Cf. In re Marriage of Murray, supra.

Here, while there was conflicting evidence as to the facts surrounding the parties' representations, beliefs, and reliance, the trial court resolved those conflicts in favor of the father, and the record contains substantial evidence to support that determination. See Carey v. Carey, supra. Thus, we agree that the father may assert equitable estoppel with regard to the child support payments that accrued between April 1981 and June 1985.

However the trial court erred in concluding that the doctrine of equitable estoppel applied from June 1985 to December 1986. The record reflects that, in June 1985, the mother personally informed the father that the proposed adoption had not been completed. Therefore, after June 1985, the father had no reasonable basis for relying on the 1981 agreement and for refusing to comply with his support obligation.

Accordingly, that portion of the trial court's order holding that estoppel applied from June 1985 to December 1986 is reversed, and the cause is remanded with instructions to the court to modify its order to award child support arrearages for that period. The remainder of the order is affirmed.

JUDGE HUME and JUDGE REED concur.

IN RE MARRIAGE OF DENNIN