Opinion
No. 43288.
Filed April 17. 1981.
1. Child Support. Accrued child support payments are not subject to modification. 2. ___. Remarriage of mother before decree of dissolution became final and her removal of child from the jurisdiction without consent of the court held not to estop mother from collecting accrued child support payments.
Appeal from the District Court for Douglas County: KEITH HOWARD, Judge. Reversed and remanded with directions.
Lawrence H. Yost of Yost, Schafersman, Yost, Lamme Hillis for appellant.
Richard J. Spethman for appellee.
Heard before KRIVOSHA, C.J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
This is an appeal in a contempt proceeding against the respondent, Phillip Conrad, for failure to pay child support. In response to an order to show cause the respondent filed an application for an order suspending all child support payments due after January 1963. The trial court found that the petitioner, Karin Conrad, was equitably estopped from collecting accrued child support and permanently enjoined the petitioner from attempting to collect all unpaid child support obligations. The petitioner has appealed.
The petitioner and respondent were married on April 13, 1960. A daughter, Debby Anne Conrad, was born November 17, 1960. The petition for dissolution was filed on September 27, 1961, and a decree of dissolution entered on August 3, 1962. The decree awarded custody of the minor child to petitioner and provided that respondent should pay child support in the amount of $10 per week until such time as the minor child reached 21 years of age, became married, or self-supporting. The respondent was granted reasonable visitation rights.
The record indicates that while the dissolution proceeding was pending, the respondent failed to make some of the payments for temporary child support. The respondent testified that he did not make the payments because he was experiencing difficulty in exercising his visitation rights. After the dissolution, the respondent regularly exercised his rights of visitation through December 1, 1962.
On or about September 15, 1962, after the dissolution, the respondent learned that the petitioner planned to remarry and take Debby Anne to Germany. Based on this information the respondent filed an application on September 19, 1962, for a temporary restraining order to prevent the removal of Debby Anne from the court's jurisdiction. On October 18, 1962, a restraining order was granted. The petitioner denied knowledge of this order or of any subsequent pleadings filed by respondent pertaining to support and visitation rights.
On December 9, 1962, the petitioner married Kent R. Warren, a serviceman stationed at Fort Leonard Wood, Missouri. This marriage took place during the 6-month period before the decree of dissolution had become final.
On January 8, 1963, the respondent filed an application for an order requiring the petitioner to show cause why he had been denied visitation rights since December 1, 1962. On January 8, 1963, the court ordered the petitioner to appear and show cause why the respondent had been denied visitation privileges. The record does not show whether this order was complied with. A second application for an order to show cause was made on February 6, 1963, in which the respondent prayed for an order requiring the petitioner to permit visitation or, in the alternative, to discontinue child support payments. The record does not show any disposition of this final application.
The respondent made support payments until January 15, 1963. The last time he saw his daughter was December 1, 1962.
The petitioner, her new husband, and Debby Anne lived in Germany from February 1963 until the first part of 1966. During this time Phillip was not aware of their exact location and did not correspond with his daughter.
In 1965 the petitioner and Debby Anne returned to Omaha for a wedding. The petitioner did not attempt to contact the respondent at that time. In 1966 Warren took a job with the Omaha Public Power District and the family moved to North Bend, Nebraska, where they were living at the time this action was commenced.
The petitioner made no attempt to contact the respondent during the 14 years she and Debby Anne resided in North Bend. Since 1962 the only contact Debby Anne has had in relation to the respondent was in 1974 when her mother showed her a picture of her natural father.
The respondent throughout this period has resided in Omaha, Nebraska, and has been employed by the Omaha Police Department. The respondent has also remarried and now has 3 children from his second marriage. He testified at trial that he would not recognize his daughter if she walked into the courtroom.
We have held in many cases that accrued child support payments are not subject to modification. In Ferry v. Ferry, 201 Neb. 595, 600, 271 N.W.2d 450, 453-54 (1978), we said: "Where a divorce decree provides for the payment of stipulated sums monthly for the support of a minor child or children, contingent only upon a subsequent order of the court, such payments become vested in the payee as they accrue. The courts are without authority to reduce the amounts of such accrued payments."
The proper remedy for the respondent in this action would have been to seek a modification of the decree on the basis of changed circumstances before the payments accrued. Apparently, no disposition was made of the application filed by the respondent on February 6, 1963.
In Eliker v. Eliker, 206 Neb. 764, 772-73, 295 N.W.2d 268, 273 (1980), the father had suspended payment of child support because of a denial of visitation rights. We held: "This jurisdiction is committed to the view that courts of this state are without authority to forgive accrued child support and that such payments continue to accrue in accordance with the court's previous order until paid in full or otherwise modified by the court. See, Smith v. Smith, 201 Neb. 21, 265 N.W.2d 855 (1978); Ruehle v. Ruehle, 169 Neb. 23, 97 N.W.2d 868 (1959). The fact that a mother in whose custody a minor child has been placed by the court refuses to permit a father ordered to pay child support to exercise his rights of visitation does not justify the father's withholding the payment of child support. The father is not without remedy and may make application to the court for further orders requiring the mother to permit the father to exercise his right of visitation. The right of visitation, however, is not a quid pro quo for the payment of child support and the mother's action does not justify the father's failure to pay. . . .
"The fact that Mrs. Eliker may have improperly and without justification prevented Mr. Eliker from exercising visitation rights with his daughter, did not either entitle or justify Mr. Eliker's failing to continue making child support payments as required. Neither of the parties is authorized to interfere with the court's orders and only the court can determine what, if any, adjustments should be made."
The respondent seeks to invoke the doctrine of equitable estoppel as applied in Smith v. Smith, 201 Neb. 21, 265 N.W.2d 855 (1978), to avoid the payment of accrued child support. In the Smith case, however, there was a reliance in good faith upon statements or conduct of the party estopped and a change of position to the injury or detriment of the party claiming estoppel. Unlike the Smith case, there is in this case no evidence of detrimental reliance and a change of position on the part of respondent. Equitable estoppel is inapplicable to the present case.
The respondent's remedy was to obtain a modification of the decree at the time of the alleged change in circumstances. Having failed to obtain a modification, this court is now without jurisdiction to reduce the accrued support payments vested in the petitioner.
The judgment of the District Court is reversed and the cause remanded with directions to dismiss the application of the respondent.
REVERSED AND REMANDED WITH DIRECTIONS.