Husband and Wife were divorced, and Family Court incorporated the parties’ marital settlement agreement (“MSA”) into the decree. The MSA provided that Husband would pay Wife $1,000.00 per month in child support. It also provided that the provisions could not be modified unless done so in a writing signed by both parties. After executing the MSA, but before the decree was entered, the parties attempted to reconcile, and they began cohabitating in a house they bought together for approximately six years. During this time, Husband did not pay any child support. Instead, he paid the mortgage on the new house and all the debt. Wife paid for the household and child-related expenses. Husband eventually moved Trial Court to modify his child support obligation and to declare that he did not owe an arrearage, to which Wife responded arguing that Husband owed an obligation during the cohabitation, which would amount to $70,000.00 in arrearages. During a hearing on this motion, evidence was introduced in the form of email and text messages, indicating that the agreement that Wife would pay the child-related expenses and Husband would pay debts and the mortgage was an agreement that Husband indicated was in lieu of child support. Trial Court entered an order regarding the arrearage issue, citing Whicker v. Whicker, 711 S.W.2d 857 (Ky. App. 1986) and Vanover v. Vanover, No. 2002-CA-001177-MR, 2005 WL 500274 (Ky. App. Mar. 5, 2005), holding that the parties orally modified their child support agreement, and citing Sparks v. Trustguard Ins. Co., 389 S.W.3d 121 (Ky App. 2012) and Dixon v. Dixon, No. 2016-CA-001571-ME, 2017 WL 5013538 (Ky. App. Nov. 3, 2018), holding that Wife was equitably estopped from recovering child support arrearages after she allowed Husband to pay the mortgage in lieu of child support. Wife appealed.
Wife argued that Trial Court erred in relying on the unpublished opinion of Vanover v. Vanover, 2005 WL 500274, to hold that the parties orally modified their child support agreement. The Court of Appeals held this was not in error, because Trial Court relied on Vanover, 2005 WL 500273, as persuasive authority, but also relied on Whicker, 711 S.W.2d 857, as the controlling case for oral modification of child support.
Wife argued that Trial Court would have come to a different conclusion had it not relied on Vanover, 2005 WL 500274. The Court of Appeals held that Trial Court’s decision regarding the oral modification issue was not in error, because Trial Court relied on Whicker, 711 S.W.2d 857, and its opinion comported therewith, because Trial Court considered how much money Husband was to pay in child support and how much he paid for mortgage and other debt, which freed up money for Wife to pay child-related expenses and to not have to provide housing. Furthermore, the Court of Appeals held that the cohabitation period would have allowed for a deviation from the child support guidelines, because it would have allowed for equally shared parenting time.
Wife argued that Trial Court erred in relying on the unpublished opinion of Dixon v. Dixon, 2017 WL 5013538. The Court of Appeals held that Trial Court did not err in relying on Dixon, 2017 WL 5013538, because it relied thereon as persuasive authority and relied on Sparks v. Trustguard Ins. Co., 389 S.W.3d 121, as the controlling authority for the equitable estoppel issue.
Finally, Wife argued that Trial Court erred in applying the equitable estoppel doctrine to this matter. The Court of Appeals held that Trial Court did not err, because Husband agreed to pay the mortgage debt, which provided housing for the family, Wife never requested court assistance for enforcement of child support, Husband relied on the parties’ agreement, and Husband accrued $70,000.00 in child support debt. Wife acquiesced to the agreement until the parties separated. The Court of Appeals held it would be unconscionable for Wife to now recover such a large amount in arrearages when she allowed Husband to believe he was meeting his child support obligation.
Digested by Nathan R. Hardymon
