concurring in part and dissenting in part:
I concur in the opinion of the court, except that part of the opinion which holds that the defendant, Allen R. Blisset, must pay to his former wife, Barbara, delinquent child support payments. In my opinion, Barbara is equitably estopped from collecting delinquent support payments from the defendant from the date of her agreement with her husband in June 1977, until she initiated these proceedings in March 1984.
This court held in Finley v. Finley (1980), 81 Ill. 2d 317, that the husband in that case could not unilaterally reduce support payments which the court had ordered. It has also been held that past-due installments of child support are vested rights. (Doty v. Doty (1977), 45 Ill. App. 3d 213; Escott v. Escott (1975), 26 Ill. App. 3d 417; Strum v. Strum (1974), 22 Ill. App. 3d 147.) However, in the case now before this court, support has been provided to the children by Barbara, the defendant’s former wife. She is not now seeking to recover support for the benefit of the children, but she is seeking reimbursement to herself for the support which she has provided, which should have been, according to the decree, provided by the defendant. In cases such as this, it has been held that the doctrine of equitable estoppel may be applied, under proper circumstances, to prevent a former wife from collecting from her former husband child support payments that had been ordered by the court. (Strum v. Strum (1974), 22 Ill. App. 3d 147, 149; Anderson v. Anderson (1964), 48 Ill. App. 2d 140.) The doctrine of equitable estoppel has been recognized as a defense in certain situations. See Finley v. Finley (1980), 81 Ill. 2d 317, 330; Escott v. Escott (1975), 26 Ill. App. 3d 417, 419; Baldwin v. Baldwin (1974), 21 Ill. App. 3d 380, 382. See also Annot., 70 A.L.R.2d 1250 (1960).
The trial court, in this case, found that the defendant had relied upon the agreement with his former wife, relinquishing his visitation rights in return for a termination of support payments. The evidence supports the finding of the existence of this agreement and the reliance on the agreement by the defendant. Furthermore, Barbara’s failure to attempt to enforce the support payments from the date of the agreement until her former husband attempted to resume visitation with his children several years later is proof that she understood that such an agreement existed.
This would appear to be a classic example of a situation where the doctrine of equitable estoppel should apply. There is no indication in this case that the children of the defendant will in any way benefit from the payment of the delinquent support, nor is there any indication that any public agency has provided support for the defendant’s children, which would establish a claim against the delinquent payments. The only person who will benefit from the holding of the majority opinion is Barbara, and she is the one who agreed that the defendant would not have to make the payments she now seeks to collect. In reliance on this agreement, the defendant gave up his visitation rights.
I would agree with the well-written dissent in the appellate court in this case and hold that Barbara is estopped from claiming support payments that accrued after the agreement in June 1977, until the date she terminated her acquiescence in that agreement by initiating these proceedings in March 1984.
There is language in the above-cited cases, and in Jones v. Meade (1984), 126 Ill. App. 3d 897, to the effect that a former spouse is not damaged by being required to pay past-due payments in one lump sum. That language just does not recognize the realities of the budgeting process, in either a business or a family context. It is not practical to say that a person is not damaged when, in reliance upon an agreement with his former spouse, he allocates resources that otherwise would be applied to court-ordered support payments to other obligations, only to learn several years later that his reliance upon the agreement was misplaced and that he is suddenly required to pay several thousand dollars in back support payments. In most instances, raising a substantial lump-sum payment would be difficult and in some instances impossible.
For the reasons stated herein, I concur in part and dissent in part from the majority opinion.