- Bookmark
- Share
- CaseIQ
FOSTER v. FOSTER
Factual and Procedural Background
Betty J. Foster (the mother) and Solomon Ira Foster (the father) were divorced on November 3, 1978. The divorce decree required the father to pay $100 per month in child support to the mother. In 1980, the father purchased a house titled in his name, borrowing $5,000 for the down payment, which he repaid through monthly payments of $129.17 over five years. At the father's suggestion, the mother and their two children moved into the house, which replaced their previous apartment costing $154 per month. The mother made all mortgage payments, including taxes and insurance, while the father claimed the tax advantages and retained title to the property.
The father contended that the monthly payments he made to the bank for the down payment were in lieu of his child support obligations until the loan was repaid, after which he would resume child support payments. The mother disputed this, alleging the father had agreed to transfer the house title to her in exchange for her refraining from collecting child support, but he refused to convey the property.
The family court denied the mother's petition for arrearages in child support and attorney fees, granted the father a reduction in child support based on the emancipation of the elder child, and awarded attorney fees to the father. The mother appealed.
Legal Issues Presented
- Whether the family court erred in holding that the father fulfilled his child support obligations by making a down payment on a house titled in his name.
- Whether the family court erred in granting a reduction in child support payments due to the emancipation of the elder child.
- Whether the award of $1,000 in attorney fees to the father was erroneous.
- Whether the trial judge erred in not awarding attorney fees to the mother.
Arguments of the Parties
Father's Arguments
- The father asserted that the parties agreed his monthly payments of $129.17 to the bank for the down payment would substitute his child support payments until the loan was fully repaid.
- He claimed that after repaying the loan, he would resume child support payments as required by the decree.
Mother's Arguments
- The mother alleged that the father promised to transfer the house title to her in exchange for her refraining from collecting child support payments.
- She contended the father refused to convey the property as agreed, and that the father's conduct resulted in unfairness to her and the children.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Skinner v. Skinner, 252 Ga. 512, 314 S.E.2d 897 (1984) | Support for the family court’s original finding that the father’s expenditures could be credited against child support obligations. | The court disagreed with the family court’s reliance on this case, rejecting the holding that no unfairness resulted to the mother or children. |
| Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581 (1969) | Establishes the general rule that divorced husbands must pay child support as specified and cannot vary payments by voluntary expenditures, which are treated as gifts not creditable against arrearages. | The court reaffirmed this principle, rejecting the father’s attempt to credit voluntary payments toward arrearages. |
| Grout v. Alexander, 260 S.C. 655, 197 S.E.2d 826 (1973) | Confirms that obligations under a divorce decree must be met as ordered, and voluntary expenditures do not excuse failure to pay required support. | The court cited this case to emphasize that the father’s voluntary expenditures did not excuse arrearages. |
| Eagerton v. Eagerton, 265 S.C. 90, 217 S.E.2d 146 (1975) | Citing Mixson, supports the principle that voluntary payments do not reduce child support arrearages. | Referenced to reinforce the legal standard applied in this case. |
| 24 Am. Jur.2d Divorce and Separation, Section 1077 (1983) | Discusses the "compulsion of circumstances" doctrine allowing credit for voluntary expenditures in limited equitable circumstances. | The court noted that although this doctrine exists generally, it has never been applied in South Carolina and declined to apply it here. |
| Peebles v. Disher, 279 S.C. 611, 310 S.E.2d 823 (Ct.App. 1983) | Establishes that minor children’s rights cannot be prejudiced by agreements between parents. | The court cited this to reject any agreement that would prejudice the children’s rights to support. |
Court's Reasoning and Analysis
The court analyzed the father's claim that his payments on the house's down payment substituted for child support and found it inconsistent with established South Carolina law. The court reaffirmed the principle from Mixson and related cases that child support obligations must be fulfilled as decreed and that voluntary expenditures, not prescribed by the decree, do not reduce arrearages but are considered gifts or gratuities.
The court rejected the family court’s reliance on Skinner v. Skinner and its conclusion that no unfairness resulted, emphasizing that the father retained title to the house, claimed tax benefits, and that the mother bore the mortgage payments, taxes, and insurance. This arrangement created an inequity to the mother and children.
Additionally, the court underscored that the rights of minor children cannot be undermined by parental agreements, citing Peebles v. Disher. The court therefore reversed the family court’s holding that the father did not owe arrearages and remanded for determination of the arrearage amount.
Regarding the reduction of child support payments from $100 to $75, the court found the trial judge acted within discretion due to the emancipation of one child and other record facts, affirming that portion of the order.
On attorney fees, the court reversed the award to the father and affirmed the denial to the mother, concluding that each party should bear their own costs under the circumstances.
Holding and Implications
The court affirmed in part, reversed in part, and remanded.
The court held that the father did not fulfill his child support obligations by making payments on a house titled in his name and that arrearages are owed. The case was remanded to determine the amount of arrearages. The reduction of child support payments was affirmed as within the trial court’s discretion. The attorney fees award to the father was reversed, and the denial of fees to the mother was affirmed, with each party bearing their own attorney fees.
This decision directly affects the parties by requiring the father to pay arrearages but does not establish a new legal precedent beyond reaffirming existing South Carolina law on child support obligations and voluntary payments.
Heard Dec. 7, 1987.
Decided Jan. 25, 1988.
GARDNER, Judge:
The appealed order denied the petition of Betty J. Foster (the mother) for alleged arrearages in child support and attorney fees and granted Solomon Ira Foster (the father) a reduction in child support and attorney fees. We affirm in part and reverse in part and remand.
The issues presented are whether (1) the family court erroneously held that the father fulfilled his child support obligations by making a down payment on a house titled in his name, (2) the family court erroneously granted a reduction in the child support payments because of the emancipation of the parties' elder child and (3) the award to the father of $1,000 in attorney fees was erroneous and (4) the trial judge erred in not awarding attorney fees to the mother.
The mother and the father were divorced November 3, 1978; the decree required the father to pay $100 per month to the wife as child support.
In 1980, the father bought a house and borrowed $5,000 for the down payment; he made monthly payments of $129.17 over a five-year period to pay for the down payment he made on the house. At the father's suggestion, the mother and the two children moved into the house; they had previously lived in an apartment costing $154 per month for rent and electricity.
The mother made all the mortgage payments (about $250 per month), which included taxes and property insurance, but the father claimed the tax advantages and retained title to the property.
The father alleges and testified that the parties agreed that the father would pay $129.17 to the bank from which he had borrowed the $5,000 down payment on the house and that this payment of $129.17 to the bank would be in lieu of the child support payments that he was obligated to make under the divorce decree. He further alleges that it was the agreement of the parties that when the loan for the down payment was paid, he would resume the child support payments to the wife.
The mother, on the other hand, alleged and testified that the father contracted to transfer the title to the house and lot to the mother in consideration for the mother's promise to refrain from attempting to collect the child support payments and that the father had refused to convey the house to the mother.
The appealed order held that the father "should be entitled to credit for the voluntary expenditures consented to by the mother as alternatives to child support and said expenditures are appropriate so that he is not required to pay additional child support." The appealed order concluded as a matter of law that there was no resulting unfairness to the mother or children as a result of the father's conduct and cited in support of this finding the case of Skinner v. Skinner, 252 Ga. 512, 314 S.E.2d 897 (1984). We disagree.
The general rule is that it is the obligation of the divorced husband to pay the specified amounts according to the terms of the decree and he should not be permitted to vary these terms to suit his own convenience. Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581 (1969). Voluntary expenditures not prescribed by the decree were considered gifts or gratuities in Mixson, and the father was not allowed credit for them against his arrearages.
See also Grout v. Alexander, 260 S.C. 655, 197 S.E.2d 826 (1973), infra and Eagerton v. Eagerton, 265 S.C. 90, 217 S.E.2d 146 (1975) (citing Mixson).
In Grout v. Alexander, 260 S.C. 655, 658-659, 197 S.E.2d 826, 827 (1973) the court stated:
Upon entry of the 1967 decree [father's] obligation was to abide its terms. [sic] Other expenditures for his son, some of which were required by the decree and some of which were not, did not excuse his failure to make the required weekly payments to [mother]....
The above South Carolina authority is consonant with the general law of the land. 24 Am. Jur.2d Divorce and Separation, Section 1077, (1983). Nevertheless many courts have recognized that situations may arise in which equitable considerations may permit an obligor spouse to be given credit against support payments for voluntary expenditures made on behalf of a minor child. Such credit has been allowed in a number of cases under a theory termed a "compulsion of circumstances." Id. Consent or agreement by the custodial spouse to accept certain alternative methods of discharge of a support obligation is one of the circumstances often giving rise to the application of this rule. This rule, however, has never been applied by the courts of this State.
In the case before us the father made the down payment on a house which was titled in his name; the mother made the payments of both remaining principal and interest on the house and paid the taxes and insurance on the house. Under these circumstances, we reject the holding of the appealed order that as a matter of law there was no resulting unfairness to the mother or children. There was and we so hold. It is clear that the father, at the mother's expense, purchased and developed an equity in property which was titled in his name and received and retained tax advantages from this acquisition.
Moreover, the rights of minor children cannot be prejudiced by an agreement between the parties. Peebles v. Disher, 279 S.C. 611, 310 S.E.2d 823 (Ct.App. 1983).
In view of the above authorities and reasons, the appealed order is reversed insofar as it held that the father did not owe the arrearages. And we so hold. We reverse and remand on this issue to determine the amount of arrearages owed by the father.
Next, we hold that it was within the trial judge's discretion to reduce the future child support payments from $100 to $75 per month based upon the admitted fact that one of the two children had reached his majority and for other reasons based on facts of record. We, therefore, reject this contention of the mother.
We reverse the award of attorney fees awarded to the father and affirm the denial of attorney fees to the mother. Under the circumstances of this case, we hold that each party must bear his own attorney fees.
For the above reasons, the appealed order is affirmed in part, reversed in part and remanded for purposes of determining the amount of support arrearages owed by the father.
Affirmed in part, reversed in part and remanded.
SANDERS, C.J., and GOOLSBY, J., concur.
Alert