In Re the Marriage of Yanda

CADY, Judge

(dissenting).

I respectfully dissent. While I applaud the sense of fairness exhibited by the majority, we are confined to apply the law as set forth by our legislature. The result reached by the majority is clearly contrary to Iowa Code section 598.22 (1993). See In re Marriage of Caswell, 480 N.W.2d 38 (Iowa 1992). It also jeopardizes the important underlying policies of the governing statute. Id. The facts of this case engender support for the father’s position, but the facts of the next case may not be so compelling. There is no bright demarcation between the equities on both sides, except as drawn in section 598.22.

Finally, the facts of this case do not support the agile reliance by the majority on the doctrine of equitable estoppel. We apply the doctrine of equitable estoppel to cases involving the recovery of past child support only under the most compelling circumstances. Harvey v. Harvey, 523 N.W.2d 755, 756 (Iowa 1994). In this case, the record does not support the essential finding of a clear and definite oral agreement that Rich would not have to pay child support during the period Christina lived with him. To the contrary, Rick testified he and Sabrina never talked about child support during the time they lived together. Moreover, Rick’s testimony that he stopped paying child support into the clerk of court after Sabrina threatened to start cashing his child support checks supports the lack of an agreement. The majority extends Harvey well beyond its narrow parameters.

I would reverse.