Dalglish v. Griffin

• Court: Superior Court of Maine
• Decided: January 11, 2012
• Docket: YORcv-97-042
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKETNO. FM-97-042

PRESTON DALGLISH,

Plaintiff

v. ORDER

JANE GRIFFIN, Defendant

Pending is Ms. Griffin's Motion for Contempt to Enforce Child Support and Dr.

Dalglish's Cross-Motion for Support. Following hearing, both Motions are Denied.

The parties were divorced in 1998. They entered into a settlement agreement

which required Dr. Dalglish to pay child support of $481.00/week for the three

children, which would be reduced as each child reached age eighteen. The agreement

also provided for spousal support for Ms. Griffin until July, 2011. Dr. Dalglish paid

the required child support until January, 2002, when he stopped payments. In July,

2010 Ms. Griffin filed a Motion for Contempt to Enforce Child Support payments which

had grown to more than $100,000.

The settlement agreement called for shared parental rights and shared primary

residence. At the time of the divorce, Ms. Griffin was struggling with substance abuse

issues. The settlement agreement contemplated that there may be periods when Ms.

Griffin would be unavailable to care for the children:

This child support payment is, however, suspended and of no force or effect while Preston provides a nanny for the children's care and Jane is living in a treatment arrangement. When Jane completes her treatment and finds a suitable residence for her and the children currently assumed on or by October of 1998, child support shall commence the following month on or about November 1, 1998 and continue each month thereafter.

It appears Ms. Griffin undertook a treatment program following the divorce in 1998 and

the parties resumed a shared residency arrangement, with Dr. Dalglish paying the child

support obligation until early 2002.

Ms. Griffin's substance abus~ issue became more acute in early 2002. She was

convicted of Operating Under the Influence and served a short period of incarceration.

She also engaged in two 28-day in-patient rehabilitation programs. During this

period, Trevor, the remaining minor child, stayed with Mr. Dalglish on a nearly

continuous basis.

In the fall of 2003 Trevor was enrolled in a boarding school, where he continued

until graduation in May, 2007. During school vacations and the summer recess Trevor

would spend time with both parents. By this time Ms. Griffin had moved from

Kennebunk to So. Bristol.

From January, 2002 until Trevor reached age eighteen Dr. Dalglish did not pay

any child support to Ms. Griffin. However, he did pay all the expenses associated with

Trevor's schooling and Trevor spent the majority of his vacation and recess time with

Dr. Dalglish.

Between November of 1999 and May of 2005 each party brought motions to

amend or enforce the divorce judgment with respect to the allocation of parental rights.

A Guardian Ad Litem was appointed who worked with the parties to resolve these

issues and the motions were dismissed without hearing. In the earlier motions, Ms.

Griffin did not seek enforcement of the child support obligation and Dr. Dalglish did

not move to modify that obligation. Ms. Griffin first raised the issue of child support

in July, 2010.

2 Dr. Dalglish asserts three affirmative defenses in opposition to the Motion:

waiver, laches and equitable estoppel. Ms. Griffin responds that these defenses are

disfavored in cases involving child support payments, and, in any event, the evidence

does not support Dr. Dalglish's position.

As a general principle, defenses of the type raised by Dr. Dalglish are disfavored

under Maine law. The proper remedy for one seeking relief from a child support order

is a motion to amend. Self help measures or side agreements between the parties

should be discouraged. However, in appropriate cases these defenses may apply.

Dept. of Human Services v. Pelletier, 2009 ME 11, 964 A.2d 630.

"Waiver is the voluntary and knowing relinquishment of a right and may be

shown by a course of conduct signifying a purpose not to stand on a right, and leading,

by a reasonable inference, to the conclusion that the right in question will not be

insisted upon" Dept. of Human Services v. Bell, 1998 ME 123 <][6, 711 A.2d 1292. I find

and conclude that Ms. Griffin has waived her right to seek child support arrearages.

While there is no evidence that Ms. Griffin explicitly waived these rights, nevertheless,

both parties brought post-judgment motions, Ms. Griffin's in 2005, three years after

child support payments ceased, and the issue of support was not raised. Further, from

2002 to 2007, Trevor is either at boarding school or staying primarily with Dr. Dalglish.

Under these circumstances, Dr. Dalglish could reasonably infer that Ms. Griffin had

relinquished her right to child support.

Equitable estoppel arises when one person's statements or conduct induces

another party to act; reliance on the statement or conduct proves detrimental and the

reliance was reasonable. Reliance can be based on silence. Equitable estoppel

requires proof of a misrepresentation, which may arise by conduct or silence as well as

affirmative statements. I find and conclude that Dr. Dalglish has proven the defense of

3 equitable estoppel by clear and satisfactory evidence. The divorce judgment

contemplated that Ms. Griffin might be unable to properly care for the children because

of her struggle with substance abuse. In early 2002 she had a serious relapse resulting

in incarceration and in-patient treatment. It was at this point that Trevor came to live

with Dr. Dalglish on a nearly continuous basis except when he was away at boarding

school. The divorce judgment explicitly "suspended" support payments while Ms.

Griffin was seeking treatment. Until Trevor graduated from high school he lived

primarily with Dr. Dalglish or was away at school. This represents conduct on Ms.

Griffin's part which induced Dr. Dalglish to act to his detriment in reasonable reliance

on the terms of the settlement agreement, which suspended the child support

obligation. Ms. Griffin's failure to raise the support issue in conjunction with her other

post-judgment motions amounts to misrepresentation through silence.

Laches may preclude a claim when "the omission to assert the right has

continued for an unreasonable and unexplained lapse of time, and under circumstances

where the delay has been prejudicial to an adverse party, and where it would be

inequitable to enforce the right." Clew v. Clew, 1999 ME 114 <[13, 734 A.2d 676. Here,

the child support payments stopped in January, 2002, at least arguably under the

provision which "suspended" them. No enforcement action was initiated until 2010,

eight years after the payments stopped and three years after Trevor graduated from

high school. Throughout this whole period, Dr. Dalglish supported Trevor by himself.

During this period several post-judgment motions were filed but the issue of child

support was not raised. I find and conclude that Dr. Dalglish has established the

defense of laches as against Ms. Griffin's claim.

4 I acknowledge that good practice would suggest that Dr. Dalglish should have

filed a motion to amend the child support order, but, for the reasons stated above, it

would be inequitable to enforce that order now.

The entries will be as follows:

Ms. Griffin's Motion for Contempt and to Enforce Child Support is Denied.

Mr. Dalglish's Cross-Motion for Support is Denied.

The clerk may incorporate this order in the docket by reference.

Dated: January 11,2012

ATTORNEY FOR PLAINTIFF: DANA E PRESCOTT ESQ PRESCOTT JAMIESON NELSON & MURPHY PO BOX 1190 ;SACO ME 04072-1190

ATTORNEY FOR DEFENDANT:

PHILIP COHEN ESQ PO~BOX 1 WALDOBORO ME 04572