Hunter v. Hunter

HOWE, Justice,

dissenting:

I agree that estoppel against the appellant cannot be upheld because of the lack of evidence that respondent has relied on her inaction to his detriment. However, there is competent evidence to support the finding of waiver and I dissent from the reversal of the trial court on that point.

The majority correctly states that “the common element of the doctrines of waiver and estoppel is the requirement of action or conduct by the person against whom the doctrines are asserted.” It then concludes that such action or conduct is missing in the present case. I respectfully disagree with that conclusion. The following dialogue is, I believe, crucial to a finding of waiver:

Q. Could you tell me, Mrs. Perry, why you have waited 10 years to make an effort to collect the back child support from your husband, your former husband?
A. Well, we just recently had a baby ourselves, and it’s been a little hard, you know, bringing up two children on one salary.
Q. How come you haven’t made any effort prior to this time? Ten years ago was quite a long time and I’m just wondering why you waited such a substantial period.
A. Well, until we had our baby, you know, we did all right.
Q. You didn’t need the money until that time?
A. Well, we could have used it, but you know, we didn’t make any effort to get it.
Q. Did you know where Lynn was living during the 10 years?
A. Yes.
Q. Did you ever make any effort to get in touch with him to see why he wasn’t paying any child support?
A. Not to see why he wasn’t paying child support.
*434Q. Did you ever get in touch with him during those 10 years?
A. Yes, I did.
Q. Do you recall how many times approximately?
A. Once.
Q. What was the purpose of that?
A. To ask if he would sign an adoption so my present husband could adopt Eric.

Direct examination by counsel for respondent at hearing for Order to Show Cause.

There is testimony in the record that the appellant was afraid of the respondent because of his violent temper and she was especially concerned about harm he might inflict upon their child. However, she did not assign this fear as a reason for not pursuing the child support. Furthermore, the trial court could well have discounted her fears since she was not afraid to institute proceedings when the money was needed. Contrary to the statement in the majority opinion, she denied that she had hidden from him. Where an inference can be drawn from the conduct of a custodial parent that no support money was wanted, courts have not been reluctant to deny reimbursement for past child support. See Kaminski v. Kaminski, 8 Cal.App.3d 563, 87 Cal.Rptr. 453 (1970) and Graham v. Graham, 174 Cal.App.2d 678, 345 P.2d 316 (1959) for conduct and action constituting waiver. It is true the verbal communications made in those cases were blunt and unequivocal, whereas here they were never direct, but made only through third parties; nonetheless, the appellant made it clear that she wanted the respondent completely out of her life. Furthermore, her failure to enforce support payments through one of several neutral collection points lends support to the trial court’s finding that she waived her rights to reimbursement. In any event, we have consistently held to a standard of review by which we reverse only where there is no evidence to support the trial court’s finding. That is not the case here.

For the reasons given, I would affirm the trial court’s ruling.

STEWART, J., concurs in the dissenting opinion of HOWE, J.