Father was ordered to pay $788 per month in child support after the divorce in 2004. Father fell behind in his support payments. Mother verbally agreed to accept father’s payment of $165 per week in child support. She says she did this to allow father to catch up on his arrearage.
They wound up back in court again over the original arrearage. Father said that he was current with his payments of $165 per week. Mother argues that the $165 per week had never been ordered by the court. It had merely been an agreement between the parties. She argued that their agreement was not enforceable. Father is responsible for the original amount of $788 per month plus interest.
The difference between $165 per week and $788 per month is not great. The 9% mandatory interest was an additional $5,000.
Father argues equitable estoppel. He said that he had relied on mother’s agreement with him. He thought that it had been included in an order. He thought the modification had been approved by the court.
Turns out that the order was accidentally never entered. The parties did not know that.
The party who says there is estoppel must have relied upon the other party’s acts or representations. Such reliance must have been reasonable. A finding that equitable estoppel applies must be based upon clear and convincing evidence.
The Trial Court entered an order reducing father’s child support arrearage. It applied principles of equitable estoppel as the basis for its order. Mother appealed.
The Appellate Court agreed with mother that the general rule is that courts have the exclusive authority to modify child support. The court is not bound by the parties’ agreements concerning child support.
The Appellate Court said it was right to find mother was equitably estopped. Father had reasonably relied on their agreement. She had not tried to collect the full amount or the interest all those years.
She could not collect back support payments from father from the date of her verbal agreement with father until she initiated enforcement proceedings in court.
In re Marriage of Hodges, 2018 IL App (5th) 170164
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