HALL v. HALL

HALL v. HALL
2012 OK CIV APP 108
Case Number: 108857
Decided: 11/19/2012
Mandate Issued: 12/13/2012
DIVISION I
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I

IN RE THE MARRIAGE OF HALL.

PATRICK HALL, Petitioner/Appellant,
v.
STACY HALL, Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA

HONORABLE CHARLES HOGSHEAD, JUDGE

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

Kevin T. Gassaway, Anna Jenson Brooks, Tulsa, Oklahoma, for Appellant,
Blake R. Givens, Kurt G. Arras, Tulsa, Oklahoma, for Appellee.

Larry Joplin, Vice-Chief Judge:

¶1 Appellant Patrick Hall (Father), seeks review of the trial court's order finding him in indirect contempt for failure to pay court ordered child support obligations and ordering Father pay an arrearage of $15,696 plus interest. Father asserts the trial court erred in finding him guilty of contempt, because his oldest child attained the age of majority and the lesser amount of child support he paid was based upon the child support guidelines for one minor child. Father also argues he is entitled to equitable relief because he continued to support his oldest child while she was in college. Finally, Father argues it was error to require him to repay the arrearage amount, because his direct support of the oldest child was in excess of what he is alleged to have underpaid. Appellee Stacy Hall (Mother) responded by asserting that Father was in contempt and did not have the authority to unilaterally modify the 2004 child support order.

¶2 The parties were divorced in 2002, Mother was awarded primary custody of the parties' two minor children. Father was ordered to pay child support in the amount of $2880/month. In 2004, Father's child support obligation was modified by court order to $1504/month. In May 2006, the parties' oldest child reached the age of eighteen (18) and graduated from high school. A month prior to their daughter's graduation, in April 2006, Father sent a letter to Mother informing her he had recalculated his child support obligation, due to the oldest child achieving the age of majority, and would continue to pay child support at a lower amount, $1068/month, for the one remaining minor child beginning in June 2006.

¶3 Father's letter was titled "to advise and/or remind you of the financial changes that will occur this summer." Father indicated he based the new child support calculation on the income assumptions the parties had used previously and the child support schedule as indicated for one child instead of two, with an invitation to Mother to have the court recalculate child support based upon current income numbers.1 The letter also addressed funds Father said he was owed by Mother for the mortgage, reminded Mother her last support alimony payment was approaching, and reiterated an earlier (2003) agreement regarding shared college and transportation expenses for the oldest child. Father then attached his revised child support calculation and asked Mother to contact him if she had any "questions or comments."

¶4 The record indicates Mother did not respond and Father began his self-modified reduced payment in June 2006. Mother and Father communicated back and forth with respect to Mother's obligations to pay a percentage of their oldest child's education expenses and transportation needs. And in a June 28, 2006 email, Mother wrote the following to Father:

As of June 1, 2006, you are no longer paying child support for [our oldest child] as a minor child. As of June 1, 2006, I will no longer pay any share of expenses set forth in the divorce decree that relate to [our oldest child] as a minor child. Please correct your invoice and do not bill me for these expenses in the future.

Father argued this response marked Mother's acquiescence or agreement to the new support format.

¶5 In December 2008, Father advised Mother she owed him a balance of $3,575.85 and would begin applying Mother's arrearage to his child support payments as of February 1, 2009. Mother did not respond and Father withheld the February 2009 child support payment. After Father withheld the February 2009 child support payment, Mother filed a contempt action against Father alleging he failed to make the February payment. Mother later filed (May 5, 2010) an amended contempt action, alleging Father had underpaid his child support by $436/month since June of 2006, alleging an arrearage of $15,969 plus interest for Father's failure to comply with the 2004 court decree that had never heretofore been modified.

¶6 Upon Mother's May 5, 2010 application for indirect contempt, the trial court held a non-jury trial on July 30, 2010 and issued the appealed from order on October 4, 2010. The trial court found "neither party at any time filed a motion to modify" the existing child support order. The court's order noted 43 O.S. §118(I)(C) provides: "[a] child reaching the age of majority or otherwise ceasing to be entitled to support pursuant to the support order shall constitute a material change in circumstances, but shall not automatically serve to modify the order." The court found Father "willfully failed" to pay $436 of court ordered child support for a period of thirty-six (36) months, without authority to do so, and in direct violation of the 2004 court order. Father was found guilty of indirect contempt, with sentencing deferred until October 8, 2010. Father was also held responsible for the arrearage of $15,696 plus interest. From this order, Father brought this appeal.

¶7 Child support proceedings are matters of equitable cognizance. Merritt v. Merritt, 2003 OK 68, ¶7, 73 P.3d 878, 881-82. "When reviewing the decision of the trial court in an equity proceeding, this Court has long held that the judgment will not be disturbed unless the trial court abused its discretion or unless the court's finding was clearly contrary to the weight of the evidence." Id. at 882.

¶8 In his first proposition of error, Father asserts the trial court erred finding him guilty of indirect contempt. He argues he used the same support guidelines and simply changed them to account for one minor child instead of two. He also asserts the nonpayment of $436 each month was not a willful disregard of the court's order.

¶9 The parties' December 31, 2003 joint stipulation for modification of child support provided as follows:

COME NOW the Plaintiff, Patrick M. Hall [ ], joined by the Defendant Stacy A. Hall [ ], and hereby stipulate and agree to the entry of an Order in the form attached hereto, modifying child support payable by the Plaintiff to the Defendant beginning January 1, 2004 from the sum of $2,880 per month to the sum of $1,504 until further order of the Court.

(Emphasis added.)

The order for modification, filed January 8, 2004, mirrored the terms of the stipulation and provided:

THE COURT FURTHER FINDS that such modified child support should remain in full force and effect until further order of the Court upon application made and good cause shown.

(Emphasis added.)

¶10 The appellate court considered the issue of a father's unilateral modification of child support in Ward v. Ward, 2010 OK CIV APP 13, 231 P.3d 733. The father in Ward was ordered to pay child support for three children in the amount of $1,750/month. The order provided father would pay "reasonable child support until the children of the marriage reach the age of majority [ ] or until further order of this court." When his oldest child graduated from high school, the father reduced his child support payments from $1,750 to $1,200. When his middle child graduated, he reduced his payments again, from $1,200 to $600. The court's original support order was never modified.

¶11 The Ward court noted 43 O.S. Supp.2009 §118I(C) did not craft child support to be an amount for each individual child:

The amount of a child support order shall not be construed to be an amount per child unless specified by the district or administrative court in the order. A child reaching the age of majority or otherwise ceasing to be entitled to support pursuant to the support order shall constitute a material change in circumstances, but shall not automatically serve to modify the order. When the last child of the parents ceases to be entitled to support, the child support obligation is automatically terminated as to prospective child support only.

Ward, 231 P.3d at 736 (emphasis added). In addressing the statutory language the Ward court found:

This provision clearly indicates that child support is not automatically modified as each child reaches majority. A parent who is paying child support for multiple children may not unilaterally reduce his or her child support payment as each child reaches majority, unless the divorce decree so provides.

Id.

¶12 Father's decree and 2004 modification order did not provide a mechanism whereby Father could unilaterally alter the terms of his child support obligation; he simply did not have the authority to do so under either 43 O.S. Supp.2009 §118I(C), the 2004 order itself, or the rationale of Ward. The 2004 order stated the support award would remain in full force and effect until the court's further order. The trial court did not abuse its discretion in finding Father willfully disobeyed the court's order in contradiction of 21 O.S. 2001 §565.

¶13 Father's second proposition asserts the trial court erred when it denied Father equitable relief, as he claims he is entitled to credit for expenditures he made on behalf of his eldest child while she was attending college, after he self-reduced his child support payments. The trial court found Father fit no exception to the narrow window that permitted an equitable accounting and accordingly allowed Father no offset of the costs he paid toward his daughter's living expenses after she attained majority in 2006.

¶14 Father testified he paid in excess of $22,000 of his daughter's college related expenses, including her cell phone bill, sorority costs, expenses relating to her car, health club membership, a weekly allowance, and other "normal living expenses."2 Father claims Mother benefitted from these expenditures on his part and Mother suffered no injustice when Father reduced the child support payment, because Mother was no longer entitled to support for the oldest child.

¶15 Father cited McNeal v.Robinson, 1981 OK 43, 628 P.2d 358, in support of his position. In McNeal, the father was found to be in arrears for child support payments he did not make to the mother while the children were living with him. The trial court in McNeal denied father's request for credit of expenditures made while the children lived with him, but the Oklahoma Supreme Court found equities would permit him to receive credit for expenses he incurred in caring for the children during the time they were under his care instead of their mother's, up to the amount of child support provided for in the decree. McNeal, 628 P.2d at 360.

¶16 The trial court was unpersuaded with the McNeal example, as well as Father's attempts to analogize his case to Kissinger, Thrash and Aguero.3 While McNeal is not completely analogous with the facts of Father's post-majority support of his daughter, we find the trial court's decision that his support was entitled to no consideration of equitable relief to be in error.

¶17 McNeal clearly does not provide Father automatic credit for child related expenses, but it acknowledged a growing and preferable trend toward allowing the court in equity some flexibility when the non-custodial parent has made voluntary expenditures in support of the child:

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 a[s] 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.
...
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.

McNeal, 628 P.2d at 359-60.

¶18 Father did not self-reduce his child support and then absolve himself of all responsibility for the daughter's support. In fact, he made significant payments in furtherance of their daughter's support and education, while at the same time he largely avoided burdening Mother with unforeseen expenses, beyond those allocated in the parties' 2003 college education and transportation expense agreement. Father's efforts in continued support of his daughter should not have been dismissed by the trial court as completely ineligible for equitable relief, because McNeal itself favors flexibility in fashioning an equitable resolution over the "prior rigid rule." Father made payments in furtherance of his daughter's support and those payments toward her support are entitled to some consideration of whether or not Father "alternatively complied" with the support order. Aguero, 976 P.2d at 1094 (court makes reference to McNeal's equitable recognition of support in alternative compliance of a court order). Because the trial court ended its analysis with an erroneous finding that Father's efforts to support the daughter were entitled to no equitable consideration or relief, the court ended its analysis prematurely.

¶19 Father's third proposition of error is an extension of his second argument, claiming the court erred in finding Father was in arrears, because he paid more directly to and on behalf of his daughter than was allegedly underpaid. As previously stated, Father, having disregarded the 2004 order and §118(I)(C), must seek equitable relief from the court for an offset of the money he paid directly to or on behalf of his daughter, this is one of the primary reasons his decision to self-modify the support order was such a perilous one. Hedges v. Hedges, 2002 OK 92, 66 P.3d 364, 368 n.9. However, based upon the flexibility directive of McNeal, Father's alternative support efforts should have been evaluated to determine if an equitable allowance for Father was warranted. McNeal, 628 P.2d at 360. Having said that, while we find the court erred in its decision that Father was ineligible for equitable consideration of his proposed alternative support, this finding should not be mistaken for agreement that every penny of Father's proposed alterative support expenses is entitled to offset against the arrearage.4

¶20 Upon remand, the trial court should consider whether equity demands Father receive credit for payments, or some portion thereof, made to and on behalf of his daughter up to the amount of the stated arrearage. In doing so, the court should be guided by whether any injustice would come to Mother if Father was awarded credit against the arrearage, and whether payment of both the arrearage, or some portion of it, and the direct payments of various support to daughter would mark a double payment of support by Father. McNeal, 628 P.2d at 360; Aguero, 976 P.2d at 1091-92.

¶21 The order of the trial court is AFFIRMED with respect to the court's decision finding Father in contempt of the child support order. The trial court's order is REVERSED with respect to the trial court's finding that Father was not entitled to consideration for equitable relief for alternative compliance with the child support order for expenditures incurred directly for and on behalf of his oldest child. Having determined Father was at least eligible for consideration of an equitable offset of funds expended on his daughter's behalf, we REMAND this matter to the trial court to determine if equity demands Father receive an offset against the arrearage owed Mother for costs associated with the support of his oldest child, up to the amount of unpaid child support.

¶22 AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BUETTNER, P.J., and GOREE, J., concur.

FOOTNOTES

1 It appears from the record, Father crafted his modified support plan using the 2000 child support guidelines and calculated support for a single child based on the income numbers and percentages that were used in the 2004 modified order. In looking at 43 O.S. Supp.2000 §119(A), the support tables indicate the total child support obligation for one child, with parents' combined income of $12,333/month (the income number used by Mother and Father in the 2004 modification) was $1,263/month. Father's income in the 2004 schedule accounted for 84.6% of the income total, 84.6% of $1,263 is $1,068, the amount Father modified his payment to and began paying in June of 2006. There is some evidence in the record that both parents realized income/salary increases by June 2006, but any increase was not accounted for in Father's self-modified support payments.

2 Father's exhibit/expense chart has a number of larger expenses paid to the Oklahoma State University Bursar's office, housing costs, and automobile costs, listed as required expenses, apparently pursuant to the parties' 2003 college and transportation expenses agreement, but the expense chart carves out a number of payments Father designated as "voluntary" expenditures, which include his daughter's allowance, cell phone, sorority expenses, pike pass charges, health club membership and others, totaling $22,721.36, from June 2006 through June 2009.

3 In Kissinger v. Kissinger, 1984 OK CIV APP 52, 692 P.2d 71, 75, the mother conceded she had agreed to accept the lesser amount of child support. "The effect of that agreement was not a modification of the court order but a waiver of her remedial rights of enforcement." Mrs. Hall in this case maintained she did not agree to the reduction in child support.

In Thrash v. Thrash, 1991 OK 32, 809 P.2d 665, 667-68, the appellate court found equitable defenses could be invoked to bar recovery of delinquent child support payments, but laches did not apply in this case. "This case presents two issues. May an agreed divorce decree provide for automatic increases in child support based upon increases in the non-custodial parent's earnings? Where the custodial parent has failed to demand the increased payments as agreed, should laches apply to bar enforcement of the agreed judgment? We hold that such an agreed decree may be enforced according to the agreement, and that under the facts of this case, laches should not apply." Id. at 666.

In Aguero v. Aguero, 1999 OK CIV APP 38, ¶24, 976 P.2d 1088, 1093-94, the court said the following:

Based on our scrutiny of the relevant Oklahoma cases, we cannot allow to stand the trial court's conclusion that Mother waived her right to child support. We believe the status of Oklahoma jurisprudence in regard to the interposition of "equitable defenses" in a child support collection action is still limited to the facts and holding of McNeal: a child support obligor may be given some form of credit against an arrearage for alternative compliance with the support order. Nothing in the subsequent case law convinces us that McNeal's equitable recognition of "alternative compliance" has been, or should be, expanded to include the divergent concept of "noncompliance due to laches, estoppel, waiver."

4 McNeal states the obligee may be entitled to an offset against the stated arrearage up to the amount provided for in the divorce decree; in this case, Father would be entitled to no more than the amount of the arrearage itself, even though his spending is allegedly greater than that amount. McNeal, 628 P.2d at 360.