Parents' Verbal Modification to Child Support Agreement Creates Havoc for NonCustodial Parent

A recent appellate court case out of Connecticut, Culver v. Culver (March 2011), brought home a critical point for noncustodial parents paying child support. Never rely on an informal or verbal child support agreement or modification to an existing child support order. Instead, parents need any changes to their support orders incorporated into the Court's modification order. For the purposes of enforcement and credit for payments made, Court-ordered support is the only way to protect everyone involved. The Culvers at Trial. Even though the noncustodial father, Michael Culver, had been paying what he believed to be the full amount of child support, the mother, Margaret Culver, initiated a contempt action against him for nonpayment. Could the father pay support for his children and still be in contempt for nonpayment? The answer is "Yes" — the support he paid was not "child support" for purposes of satisfying his legal duty. Here are some of the facts involved in the Culver case. As part of their 1994 divorce, the Culvers had a written agreement that was incorporated into the Judge's final decree of dissolution. Under their agreement, Michael would pay $2,500 each month for the care of his twin daughters. The agreement further stated that any modification or waiver of the support would have to be "in writing and executed with the same formality" as the parties' agreement. Lastly, the agreement included a provision that allowed for the payment of attorneys' fees to the prevailing party in any contempt action. In 1996, Michael agreed to pay an additional $1,000 per month in child support. This was a written amendment to their original support agreement and, although both parties signed off on the amendment, it lacked the same formalities as their original agreement. Consequently, the trial court held that it was unenforceable as a modification. (Interestingly, the father had filed a motion to modify the support order to reflect the increased amount, but no action was ever taken and no Court order resulted.) Time passes and in 1998 the parents agree that they will send their daughters to private school. This time they orally modify the support obligation, but no written instrument reflecting their verbal arrangement is ever produced. In their oral agreement, Michael would stop paying Margaret $2,500 in child support. In lieu thereof, Margaret testified at trial that Michael would pay the "private school and college expenses for their children." Michael testified that he agreed to pay the private school tuition, but never agreed to paying for the daughters' college. Regardless, there was no written amendment to their original support agreement and no modification of the Court's original support order — that would be a big problem for Michael. Michael complies with his verbal agreement with Margaret. He stops paying support directly to her and starts paying the children's private school tuition and costs. This all worked out well for everyone while he made payments from 1998 through 2006. There wasn't a support issue until the young ladies started looking into college. Not surprisingly, Michael refused to pay for the college expenses. After borrowing money to cover the college costs, Margaret filed her contempt motion for nonpayment of child support against Michael in 2006. She sought arrearages, attorneys' fees, and costs. In his defensive response, Michael alleged "abuse of process, breach of contract, quantum merit and fraud" — none of which were persuasive in this child support case. A year later, Margaret filed a second contempt motion, to which Michael alleged "equitable estoppel, waiver and laches" in his defense. All of Michael's equitable defenses hinged on the validity and enforceability of an oral agreement modifying child support. It is understandable that Michael believed he should be credited something for the $478,728 he paid for his daughters' "private school room, board and tuition." But he was wrong — in its discretion, the Court decided not to credit Michael for the payments he made toward private educational expenses. Almost a half-million dollars was spent, but none of it was paid according to the court's original child support order. The oral modification was not enforceable against either party, so at least Michael couldn't be forced to pay for college, too. The trial court ordered Michael to pay Margaret an additional $225,000 in past due child support, plus $25,000 in attorneys' fees. The appellate court affirmed the trial court's decision. If you are looking to a change in child custody or parenting time, then the need for modification of your child support order is likely as well. Child support orders may be modified to meet the changed needs in the parents' or children's lives. When modification to custody and visitation with an associated modification in child support is needed for your family, contact the Law Offices of Scott David Stewart in Phoenix, Arizona. We'll schedule a confidential consultation for you with a knowledgeable and experienced family law attorney. Resources: Culver v. Culver (Conn. App, March 15, 2011) http://caselaw.findlaw.com/ct-court-of-appeals/1558357.html Arizona Judicial Branch: Child Support FAQs http://www.azcourts.gov/familylaw/ChildSupportFrequentlyAskedQuestions.aspx

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