Equitable Estoppel and Child Support

Colorado case law clearly supports the idea that child support is the right of the child, not the parent.  In re Marr. of Aldrich, 945 P.2d 1370, 1376 (Colo. 1997).  This is one of the reasons that stipulations regarding child support have to be reviewed and approved by the court with an eye toward a child’s best interest.  Further, Colorado statutory law and the cases interpreting it make clear that court-ordered child support payments automatically become money judgments when they are due and not paid, and courts generally cannot retroactively modify child support prior to the date of a mutually-agreed-upon change in physical custody or the filing of a motion to modify child support.  C.R.S. section 14-10-122(1)(d).

Colorado cases have carved out a narrow exception to these rules, however, to apply the doctrine of equitable estoppel.  To claim equitable estoppel, however, a party “must demonstrate both reasonable and detrimental reliance on the other party’s acts or representations and a lack of knowledge or convenient means of knowing the facts.”  In re Marr. of Turner, 11CA0205 (Colo. App. April 26, 2012).  “Accrued child support arrearages will be abated only under extremely limited circumstances, such as concealment of the child or uncompleted adoption proceedings.”  In re Marr. of Turner, 11CA0205 (Colo. App. April 26, 2012).

Limiting the application of equitable estoppel in child support cases is essential to support the legislative intent behind the child support statutes.  Otherwise, parents could simply reach a separate agreement not to enforce the court-ordered support and effectively deprive the child of the right to collect that support.  While there have been limited cases where application of equitable estoppel to child support arrearages made sense, this doctrine should not be used to let parents off the hook for extensive child support debts.  In Colorado, child support is modifiable, and all the forms necessary to request a modification are readily available online and at our courthouses.  If a parent’s financial situation changes in a way that makes payment of the existing order impossible, that parent should move the court to modify child support.  Allowing a parent to simply stop paying, rack up a large amount of debt, and then walk away from that debt if the other parent is not aggressive in pursuing it does a disservice to the child who that support is supposed to benefit.

In light of my obvious slant on this issue, I was thrilled to read Judge Hawthorne’s April 26, 2012 decision in the Turner case.  The opinion not only reinforces the legislature’s intent; it also analyzes equitable estoppel thoroughly by exploring whether electing not to pay child support is really a “detrimental” reliance.  Frankly, a parent who stops paying support benefits from not paying, and the only person who suffers a detriment is the child.

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