In Aguero v. Aguero, 1999 OK CIV APP 38, 976 P.2d 1088, the parties divorced in 1987 and the father never paid the full amount of child support owed each month. In 1997, DHS filed an application for contempt citation in which it alleged arrearages of $ 44,650.
At the hearing, the parties disputed the amount of arrearages owed, but both parties agreed that the father had failed to pay over $ 20,000. The father alleged that the mother acquiesced in the reduced and sporadic child support payments he made and asked the court for equitable relief and a finding that no back support was owed.
The trial court applied the law of waiver and equitable estoppel and awarded Mother an arrearage of $ 3,150. In determining whether equitable defenses were available to an obligor parent in an action for unpaid child support, this court examined three cases:
(1) McNeal v. Robinson, 1981 OK 43, 628 P.2d 358;
(2) Kissinger v. Kissinger, 1984 OK CIV APP 52, 692 P.2d 71;
(3) Thrash v. Thrash, 1991 OK 32, 809 P.2d 665.
The Aguero court determined that, while those cases appeared to support the use of equitable defenses in child support cases, upon closer inspection, McNeal actually only provided for equitable relief where an obligor parent has alternatively satisfied his obligation to support his children, in the form of voluntary expenditures for the benefit of the children or assuming physical custody of the children. In fact, McNeal never used the phrase "equitable defenses" to excuse nonsupport of an obligor parent's children.
In Aguero, the Court further determined that in Kissinger, the Court erroneously extended McNeal to allow a finding that the mother waived her right to enforce unpaid child support, a finding that the Aguero court termed "expanding McNeal far beyond what we perceive as its intended reach."
In Thrash, the trial court ordered a large arrearage and on appeal, the father asserted equitable defenses in asserting that the mother waited seven years to enforce the terms of the decree. The Supreme Court found that no set of facts had been presented to support the father's equitable defenses. The court did say that the "father is correct in concluding that equitable defenses may be invoked to bar the recovery of delinquent child support payments."
However, in Aguero, the Court noted that that statement by the Supreme Court came immediately after its discussion of McNeal, in which the Supreme Court noted that McNeal allowed equitable consideration of the fact that the father in McNeal failed to make child support payments only while the children were residing with him.
The Court in Aguero therefore concluded that the Thrash court did not intend to extend the full range of equitable defenses to excuse noncompliance with a support order.
In Aguero, this court held, in pertinent part:
"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." .... Our conviction that equitable defenses are not available to excuse noncompliance with a support order is clearly supported by public policy. The award of child support is for the benefit of the child. Children are entitled to support from both of their parents, and one parent should not be able to waive a child's right to support from the other. Recognizing the entire gamut of equitable defenses would afford parents too much discretion in complying with court-ordered support."
In Aguero v. Aguero, 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."