Malekos v. Chloe Ann Yin

655 P.2d 728
Alaska Supreme Court·Decided December 21, 1982·No. 5767, 5817·Published·Cited by 18 cases

Opinions

OPINION

COMPTON, Justice.

The principal issue presented in this appeal is whether and to what extent court ordered child support may be waived by the child’s custodian. The trial court concluded that despite a specific, intended waiver by the child’s custodian of the child support obligation, the waiver was inoperative as a matter of law.

I. FACTUAL AND PROCEDURAL BACKGROUND

George Malekos (George) and Chloe Ann Yin (Chloe) were married in 1963. They lived together for only a brief period. On February 2, 1964, their son Richard Todd Malekos was born. George obtained a decree of divorce from Chloe at Reno, Nevada, on December 15,1964. The decree required George to pay Chloe the sum of $60.00 per month for the support of Richard.

George visited Chloe when she was still in the hospital with Richard. At that time, as well as on several other occasions, Chloe told George she wanted nothing to do with him and that she did not want support from him. In addition, Chloe had contact with members of George’s family on numerous occasions, and at no time did she express any interest in obtaining child support from George. George visited his child on only a few occasions in the years preceding this litigation.

George did not make the payments as ordered by the Nevada decree. Eventually he moved to Alaska, and at the time of trial he had lived in Alaska approximately thirteen years.

Richard apparently spent most of his first ten years with Chloe’s parents. There is no evidence that Chloe provided financial support for Richard during this period.

On September 15,1977, Chloe filed in the Superior Court for Santa Clara County, California, a complaint for support under the Uniform Reciprocal Enforcement of Support Act. Chloe sought monthly support in the amount of $150.00 and arrearages in the amount of $8,620.00 under the Nevada decree. The action was transferred to a superior court in Alaska on October 1, 1977.

George was served with process in the state. The case came on for trial in October 1980, at which time George raised the defenses of waiver, laches, estoppel and statute of limitations.

The superior court determined that Chloe’s statements and her course of conduct constituted a waiver of George’s decre-tory obligation to make child support payments. The court ruled, however, that a custodial parent’s waiver of support is inoperative as a matter of law. The court therefore held that George was obligated to pay all arrearages not barred by the appli[730]*730cable statute of limitations.1 The court did not award prejudgment interest on the amounts due.

Both parties appeal. George submits that the superior court improperly determined that a waiver of decretory child support is invalid as a matter of law. Chloe submits that the court improperly denied an award of prejudgment interest on any ar-rearages owed.

II. WAIVER OF DECRETORY CHILD SUPPORT

The principal issue presented on appeal is whether to give effect to a custodial parent’s waiver of decretory child support payments from the noncustodial parent. The custodial parent argues that to give effect to such a waiver is contrary to statutory and public policy concerns. The noncustodial parent, on the other hand, asserts that the waiver should permanently extinguish the support obligation. We conclude that a waiver freely executed by the custodial parent can be asserted by the noncustodial parent to bar recovery of child support arrearages, absent a finding that such a result would be deleterious to the child. However, the custodial parent may retract such a waiver at any time, and once withdrawn, the support obligation is renewed, subject to the court’s continuing authority to modify the support obligation in the light of changed circumstances.

A.

Whether a custodial parent who has waived decretory child support from a noncustodial parent may nonetheless recover support arrearages is a question of first impression in Alaska. Other courts that have addressed this issue have reached divergent views. See generally Annot., 5 A.L.R.4th 1015 (1981) (“Laches or Acquiescence as Defense, so as to Bar Recovery of Arrearages or Permanent Alimony or Child Support”); 100 A.L.R.3d 1129 (1980) (“Validity and Effect, as Between Former Spouses, of Agreement Releasing Parent from Payment of Child Support Provided for in an Earlier Divorce Decree”). The apparent majority rule is that a waiver precludes a custodial spouse from recovering support arrearages, providing that the result is not deleterious to the child. E.g., Kaminski v. Kaminski, 8 Cal.App.3d 563, 87 Cal.Rptr. 453 (1970); Anthony v. Anthony, 204 N.W.2d 829 (Iowa 1973); Wardle v. Wardle, 464 P.2d 854 (Wyo.1970). Courts adopting this view oftentimes focus on whether there was “consideration” for the waiver, or whether the noncustodial parent detrimentally relied upon the purported waiver. Other courts, however, refuse to give effect to a custodial parent’s waiver, arguing that child support payments are received by the custodial parent for the benefit of the child, and that as a consequence, the custodial parent has no authority to waive the child’s entitlement to future support from the noncustodial parent. E.g., Napoleon v. Napoleon, 59 Haw. 619, 585 P.2d 1270 (1978); Ditmar v. Ditmar, 48 Wash.2d 373, 293 P.2d 759 (1956).

We adopt the rule that a custodial parent may waive child support payments established by a prior decree, and that such a waiver precludes the recovery of arrearages absent a finding of detriment to the child.2 Parents bear both a statutory and moral obligation to support their child until emancipation or majority. AS 25.20.030. See Young v. Williams, 583 P.2d 201, 204 (Alaska 1978). This obligation is not extinguished by divorce. Viewed in this light, child support obligations imposed by a divorce decree allocate the burden of the parents’ joint responsibility to provide their child with adequate support. While parents may not by waiver or otherwise eviscerate their child’s right to adequate parental sup[731]*731port, we see no compelling policy considerations to refuse to enforce a custodial parent’s waiver of child support from a noncustodial parent, providing that such agreements are executed without fraud or duress, and providing that enforcement is not deleterious to the child.

Chloe offers several countervailing arguments. She first argues that allowing a custodial parent’s waiver of decretory child support to bar the recovery of arrear-ages contravenes AS 47.23.0603 or, absent a statutory prohibition, public policy. The premise underlying either argument is that child support payments established by decree are for the benefit of the child, and that the custodial parent, who receives such payments as a trustee for the child, has no authority to waive the child’s right to future support from the noncustodial parent.

Free access — add to your briefcase to read the full text and ask questions with AI

Malekos v. Chloe Ann Yin, 655 P.2d 728 (Ala. 1982).

655 P.2d 728 (Malekos v. Chloe Ann Yin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Brown v. Brown
983 P.2d 1264 (Alaska Supreme Court, 1999)
Richmond v. Pluid
925 P.2d 251 (Alaska Supreme Court, 1996)
Taylor v. McGlothlin
919 P.2d 1349 (Alaska Supreme Court, 1996)
Dewey v. Dewey
886 P.2d 623 (Alaska Supreme Court, 1994)
Perry v. Newkirk
871 P.2d 1150 (Alaska Supreme Court, 1994)
Nix v. Nix
855 P.2d 1332 (Alaska Supreme Court, 1993)
Albins v. Elovitz
791 P.2d 366 (Court of Appeals of Arizona, 1990)
Williams v. Williams
781 P.2d 1170 (New Mexico Court of Appeals, 1989)
Cox v. Cox
776 P.2d 1045 (Alaska Supreme Court, 1989)
In re S.C.Y.
736 P.2d 353 (Alaska Supreme Court, 1987)
Matter of SCY
736 P.2d 353 (Alaska Supreme Court, 1987)
Tiokasin v. Haas
370 N.W.2d 559 (North Dakota Supreme Court, 1985)
Jones v. Jones
666 P.2d 1031 (Alaska Supreme Court, 1983)
Malekos v. Chloe Ann Yin
655 P.2d 728 (Alaska Supreme Court, 1982)