Callaert v. Callaert

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 86-238


Barbara A. Callaert                          Supreme Court

     v.                                      On Appeal from
                                             Bennington Superior Court
Roy Callaert
                                             June Term, 1988



Arthur J. O'Dea, J.

Barbara A. Callaert, pro se, Bennington, plaintiff-appellant

K. James Malady, Bennington, and Dailey and Dailey, Manchester (On the
Brief), for defendant-appellee


PRESENT:  Allen, C.J., Peck and Dooley, JJ., and Costello, D.J. (Ret.),
          and Springer, D.J. (Ret.), Specially Assigned


     PECK, J.   Plaintiff wife appeals pro se from the trial court's denial
of her prayer for support arrearages.  We reverse and remand.
     The parties were divorced in 1979, and by stipulation they agreed to
joint custody of the couple's two children, Tonia and Kristopher, with
physical custody in plaintiff.  Defendant was ordered to pay $50 per week
for child support and to deposit $15 per week into a savings account for the
children.  By agreement in July, 1981, the final order was modified to allow
their son Kristopher to reside with defendant.  Nevertheless, the $50-per-
week payment for child support was to continue under the agreement, as was
the $15-per-week savings deposit.
     The trial court found that following modification of the final order,
defendant:
          . . . began to neglect his financial responsibility as
          defined in the Orders of this Court.  He didn't pay the
          support that he had agreed to pay for Tonia.  He didn't
          make the deposits that he had agreed to make on behalf
          of his children and without expressly consenting to that
          unilateral decision on the part of Roy by taking no
          action at all, Barbara let it happen.  She chose not to
          go through the hassle and expense and the misery of an
          enforcement proceeding.

            And that is a choice that, especially in those years
          -- the '80's was frequently made and it was an under-
          standing -- it's a choice that the Court can now under-
          stand her having made especially under all of the
          facts.  It was partially motivated by the fact that Roy
          had run into some financial difficulties with his
          business in the early '80's -- in 1981 and 1982, but I
          emphasize partially because that wasn't the only reason
          that she let it go.

The court concluded that plaintiff had waived rights to the arrearages "by
nonenforcement and by mutual agreement between the parties during the period
that they were accumulating [sic]."  As a second ground for its decision,
the court stated that payment of the arrearages would impair defendant's
ability to meet his obligations arising from his second marriage, including
support for the three children of his second wife from her previous
marriage.  This appeal followed.
     Plaintiff argues first that she never waived her right to seek
arrearages.  Although findings of the trial court will not be set aside
unless they are clearly erroneous, Belanger v. Belanger, 148 Vt. 202, 204,
531 A.2d 912, 914 (1987), we made clear in a previous opinion, that because
child support payments "are made for the support, maintenance and education
of the minor children of the parties . . . [whose] welfare is paramount," a
parent may not be found to have waived his/her children's right to receive
support.  Lyon v. Lyon, 143 Vt. 458, 462, 466 A.2d 1186, 1189 (1983).  Lyon
controls here; plaintiff may not be found to have waived her child's right
to receive support.
     Nor is the trial court's order relieving defendant of the duty of
paying the accumulated support arrearages authorized as an exercise of
judicial discretion given defendant's financial situation.  While under
Vermont statutory law in effect prior to 1982 (15 V.S.A. { 760), the trial
court had discretion over the repayment of arrearages, that discretion
disappeared with the adoption of 15 V.S.A. { 606, which "mandates that a
superior court, in an action to recover child support, 'shall render
judgment for the amount due' under the original judgment or decree."  Forte
v. Forte, 143 Vt. 518, 520, 468 A.2d 561, 562 (1983) (quoting 15 V.S.A. 
{ 606). (FN1)
     The judgment below is reversed, and the case remanded to the superior
court for further proceedings consistent with this opinion.

                                   FOR THE COURT:



                                   ____________________________________
                                   Associate Justice




FN1.    Even under the prior law, there would have been no evidence in the
present case to support the court's conclusion that defendant was not
financially able to pay the arrearages.  He testified that he went through
personal bankruptcy, and was discharged in April, 1981, a few months before
he began slackening off in his support obligations.  But he did not intro-
duce any evidence tending to show that payment of the arrearages at the
time of the trial court's decision would have imperiled his overall finan-
cial condition or would have jeopardized the well-being of his new family.