McNeal v. Robinson

1981 OK 43, 628 P.2d 358, 1981 Okla. LEXIS 213

• Court: Supreme Court of Oklahoma
• Decided: April 21, 1981
• Docket: 53721
• Status: Published

Opinions

DOOLIN, Justice:

The question of first impression for us presented by this case is: should a father, ordered to pay $150.00 per month child support, be allowed a credit against an arrear-age in child support for the time when the children were living with him, although the original divorce decree had not been modified?

Sheryl Robinson (appellee) and Gary McNeal (appellant) were divorced in 1973, and Sheryl was awarded custody of the couple’s two minor children, Denise and Dennis. Gary was ordered to pay $75.00 per child per month in child support.

Gary was current in his payments until January 1977 when Dennis moved in with Gary, who then reduced his payments to $75.00 per month. In April of 1977, Denise moved in with Gary, and he stopped all child support payments.

Denise moved back with Sheryl in November 1978, and Gary resumed child support payments of $75.00 per month. Overall Denise lived with Gary for 19 months, and Dennis lived with Gary for 23 months.

Sheryl then filed an application to modify the divorce decree to increase child support, and also sought a citation for contempt of court for the arrearage. Gary also sought modification of the decree to retroactively decrease the child support and sought permanent custody of the children.

The trial court granted Gary custody of Dennis, found him innocent of contempt, but ordered him to pay all the arrearage, which totaled $3,440.00, denying him credit for the time the children lived with him. The trial court also increased the child support payment for Denise to $150.00 per month.

The existing law in Oklahoma is that there can be no retroactive modification of a divorce decree by agreement between the parties without court approval.¹ Gary asserts that this is not a retroactive modification of the decree, but merely an allowance of credit for payments he made to support the children while they were living with him. However, whether this is characterized as a retroactive modification or an allowance of credit, the end result will remain the same — either the father is forced to make additional payments to the children’s mother or he is not. We cannot agree with Gary’s characterization of the situation as an automatic allowance of credit.

Many states agree with the Oklahoma position; however many states are beginning to alter the absolute rule against retroactive modification. These states permit the father to be allowed credit against child support arrearages for expenses accrued an a result of his custody of the child, or for other voluntary expenditures made on behalf of the child, if equity would so dictate under the particular circumstances, provided the allowance of credit would not do an injustice to the mother.²

Some courts have held that equity will allow the father credit against child support payments for voluntary expenditures made on behalf of the child where such payments were made under a “compulsion of circumstances.” ³

Some jurisdictions permit credit where the mother consented to the father’s voluntary expenditures as an alternate manner of satisfying his child support obligations.⁴

The original absolute rule against retroactive modification should admit of some qualification. The original rule was formulated when the rate of divorce was fairly low, but with the rate increasing rapidly, multiplying the numerous problems concerning the children of these divorced families, a rule which gives the trial court some flexibility in solving these problems is far superior to the prior rigid rule.

The payor parent will still not automatically be allowed as a matter of law credit for any expenditures made in a manner other than that specified by the divorce decree, but credit may be allowed for period during which obligor, with obligee’s consent and acquiescence, kept the children in his own charge.

In the case at bar, the equities would permit Gary to receive credit for the payments made by him during the time his children lived with him. Because child support payments are for the benefit of the children, rather than the custodial parent, it would be inequitable to effectively force Gary to pay twice for their support. Additionally, the circumstances in this case would support a finding of express or implied consent of the mother regarding the payments, since she made no complaint for at least 1½ years.

Review of the evidence and facts in this case shows no ongoing child expenses in anticipation of Sheryl getting the children back, for which obligor should reimburse her.

If obligee could have proved she had reasonably incurred ongoing “child maintenance” expenses in anticipation of continuing custody of the children, such obligee may be entitled to reimbursement of these expenses up to the amount of child support provided for in the divorce decree.

We do not mean to intimate that Gary could have offset expenses he incurred above the $75.00 per child per month child support against Sheryl’s child maintenance expenses.

REVERSED AS TO ARREARAGE; AFFIRMED AS TO CONTEMPT.

IRWIN, C. J., BARNES, V. C. J., and WILLIAMS, HODGES, LAVENDER, HARGRAVE and OPALA, JJ., concur. SIMMS, J., dissents.

1 . Craig v. Collins, 285 P.2d 859 (Okl.1955).

2 . Headley v. Headley, 277 Ala. 464, 172 So.2d 29 (1964); Cole v. Cole, 101 Ariz. 382, 420 P.2d 167 (1966); Stemme v. Stemme, 351 S.W.2d 823 (Mo.App.1961); Briggs v. Briggs, 178 Or. 193, 165 P.2d 772 (1946); Martin v. Martin, 59 Wash.2d 468, 368 P.2d 170 (1962); Campbell v. Campbell, 209 Ky. 571, 273 S.W. 26 (1925); Raczynski v. Raczynski, 558 P.2d 425 (Okl.App.1976), Cert. denied November 30, 1976; also see 47 A.L.R.3rd 1031.

3 . Headley v. Headley, 277 Ala. 464, 172 So.2d 29 (1964); Jackson v. Jackson, 306 Ky. 715, 209 S.W.2d 79 (1948); McCrady v. Mahon, 119 N.H. 247, 400 A.2d 1173 (1979); White v. White, 34 Md.App. 635, 368 A.2d 1061 (1977).

4 . Souran v. Souran, 80 Misc.2d 476, 363 N.Y.S.2d 511 (1975); Tescher v. Tescher, 491 P.2d 82 (Colo.App.1971); Frazier v. Rainey, 227 Ga. 350, 180 S.E.2d 725 (1971); Gould v. Awapara, 365 S.W.2d 671 (Tex.Civ.App.1963).