Malekos v. Chloe Ann Yin

RABINOWITZ, Justice,

dissenting, joined by MATTHEWS, Justice.

I disagree with the court’s conclusion that a custodial parent has the authority to reduce or extinguish a non-custodial parent’s obligation to pay court ordered child support. In precluding Yin from recovering child support arrearages due under a valid divorce decree, the majority gives legal effect to a purported “waiver” by Yin. I would hold that Yin had no authority to alter the terms of the judicial decree insofar as it established Malekos’ duty to pay child support. Thus, I would find the “waiver” void and hold Malekos liable for all arrear-ages that are not barred by the applicable statute of limitations.

The majority’s approach is based upon the assumption that child support payments are the property of the custodial parent, rather than an entitlement of the minor child. Applicable statutory language clearly indicates that the legislature intended the child to be regarded as the primary recipient of the funds. The custodial parent is merely considered a conduit for the payments. According to AS 47.23.060, “[a]n order of support establishes a relationship by which the custodian of the child is the administrator for purposes of administering child support on behalf of the child.”1 *734Thus, the custodian simply receives the payments on behalf of the child.2 AS 47.23.045 explicitly states that it is the child who is “owed a duty of support.”3 The child is the “obligee,” AS 47.23.110(4), while the parent receiving the funds is the “custodian.” See AS 47.23.080(c) and AS 47.23.060.4 When the parties are viewed in their respective capacities within the statutory scheme, it is apparent that the custodian does not have the authority to waive any or all monies due to the child.5

The majority would permit the waiver to be disregarded if a specific finding was made that the result would be “deleterious” to the interests of the child. However, I find it difficult to imagine a situation in which the child’s interests would not be adversely affected by a termination or reduction in support payments. As a theoretical proposition, the majority may be correct in observing that there is no direct correlation between the quality of a child’s home environment and the financial resources available for support. However, as a practical matter, child support money is often a critical determinant of the extent to which a custodial parent is able to satisfy the child’s material needs. Since the child’s needs are given paramount consideration by the court as it fashions the initial decree, it is reasonable to assume that his or her material welfare will be deleteriously affected by a reduction in resources available to the custodial parent.6 The parents are, of course, free to rebut that assumption by *735seeking judicial modification of support obligations pursuant to AS 09.55.220.7

A requirement that parties seek judicial approval for reallocation of support obligations is warranted by the fact that the court assumed continuing jurisdiction over the child’s welfare when it initially framed the decree. Although I agree with the majority’s observation that courts are generally reluctant to intrude upon agreements between parents concerning the proper rearing of their children, this principle is less applicable following a divorce. Having fashioned the initial support arrangement, the court has continuing authority and jurisdiction to supervise its implementation. Any modification of responsibilities established by the decree should, therefore, be subject to court approval.8 Thus, I would not give any effect to a purported waiver by a custodial parent of child support payments and would affirm the superior court in awarding Yin the arrearages due under the original decree.

. AS 47.23.060 provides:

Order of support, (a) An order of support establishes a relationship by which the custodian of the child is the administrator for the purposes of administering child support on behalf of the child. The court shall carefully consider the need for support, the ability of both parents to meet such support obligations, the extent to which the parents supported the child before divorce, and the economic ability of the parents to pay after separation and divorce. The court shall also consider the effect on the support obligation of a change in custodian. The need of the child for support shall be considered regardless of the sex of the parent awarded custody of the child.
(b) Repealed by § 21 ch 126 SLA 1977.
(c) In a court proceeding where the support of a minor child is at issue, the court may order either or both parents to pay the *734amount necessary for support, maintenance, nurture and education of the child. Upon a showing of good cause the court may order the parents required to pay support to give reasonable security for payments. An order for prospective child support may be modified or revoked as the court considers necessary.

. The fact that this court has not imposed the duties of a full-fledged trustee on the parent, Young v. Williams, 583 P.2d 201, 203 (Alaska 1978) does not imply that the parent is thereby deemed the owner of these funds. Our reluctance in Young to impose formal fiduciary responsibilities upon the custodial parent cannot be used to justify a diminution in his or her responsibility to receive and dispose of such monies exclusively for the sake of the child.

. AS 47.23.045 provides:

Determination of support obligation. The agency may appear in an action seeking an award of support in behalf of a child owed a duty of support, and may also appear in an action seeking modification of a support order, decree or judgment already entered. Action under this section may be undertaken upon application of an obligee, or at the agency’s own discretion if the obligor is liable to the state under AS 47.23.120(a) or (b).

. AS 47.23.110 provides in relevant part:

Definitions. In this chapter . ..
(3)“duty of support” includes a duty of child support imposed or imposable by law, by a court order, decree or judgment, or by a finding or decision rendered under this chapter whether interlocutory or final, whether incidental to a proceeding for divorce, legal separation, separate maintenance, or otherwise, and includes the duty to pay arrearages of support past due and unpaid;
(4) “obligee” means a person to whom a duty of support is owed;
(5) “obligor” means a person owing a duty of support;

AS 47.23.080(c) provides:

(c) The determination or enforcement of a duty of support is unaffected by any interference by the custodian of the child with rights of custody or visitation granted by a court.

AS 47.23.060 is set out in full at note 1, supra.

. Several jurisdictions have concluded that child support is a right of the child and that purported waivers by custodial parents are entirely ineffectual. See Brady v. Brady, 225 Kan. 485, 592 P.2d 865, 869 (1979):

Divorced parents cannot legally reduce child support or terminate the obligation by a contractual agreement or otherwise. It is a right of the child and can only be reduced or terminated by court order, [citation omitted.]

and Mosher v. Mosher, 25 Wash.2d 778, 172 P.2d 259, 263 (1946):

The children were the direct parties in interest. The plaintiff, their mother, merely received the money as their trustee, and could not legally surrender the rights of her children, or in any way cancel, in whole or in part, the obligation which the Oregon court imposed upon their father in the divorce action. That could only be done by the court itself, [citations omitted.]

I would agree with the Mosher court that the mother was figuratively, if not formally, acting as trustee in receiving her children’s support payments.

. AS 47.23.060. The text of AS 47.23.060 is set forth in note 1, supra.

. The parent’s relative ability to contribute to the child’s support is also a factor to be considered by the court in framing a support decree. AS 47.23.060. Thus, a waiver by the custodial parent of support payments may simply reflect a change in the parents’ financial circumstances, leaving the total resources available for satisfaction of the child’s needs unaffected. The majority is correct that the waiver in no way diminishes the responsibility of the custodian to provide support for the child. However, I think it important that an impartial third party be given an opportunity to determine whether the rearrangement will, in fact, ensure satisfaction of the child’s material needs.

That parental self-interest may dictate contractual agreements directly contrary to the best interests of the child is illustrated in several cases where the parents exchanged a reduction in child support obligations for a relinquishment of visitation privileges. See Deivert v. Oseira, 628 P.2d 575, 577 (Alaska 1981) (parties stipulated that father would be released from child support obligation under decree if he relinquished visitation privileges) and Anthony v. Anthony, 204 N.W.2d 829, 833 (Iowa 1973) (“In the absence of a contrary showing, we believe the best interest of the child is deleteriously affected by a parental bargain exchanging a waiver of decretary child support for a surrender of visitation rights.”). The majority correctly indicates its disapproval of such arrangements, but in my view misses the principle which they illustrate: the fact that the child’s welfare may well be disregarded in the process of parental warfare.

. See Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147, 150 (1963). Rejecting a contention that it should give effect to a parental agreement exchanging a reduction in child support for abandonment of visitation privileges, the court observed:

This argument overlooks well-settled legal principles to the effect that appellant’s duty to support his minor children, and the amounts of such support, were imposed by a final decree of a court having full jurisdiction in the premises. The parents are without any warrant in law to later nullify such decree by mutual agreement between themselves so as to deprive the minor children of the support to which they are entitled under the decree of a court of competent jurisdiction. Such agreements are without consideration, and void as a matter of public policy.

In Meredith v. Meredith, 238 Ga. 595, 234 S.E.2d 510, 511-12 (1977), the Georgia court refused to respect an agreement concerning alimony for similar reasons:

This court has repeatedly held that the parties may not, by their private agreement foreclose the court from exercising its judgment as to the question of alimony to be awarded in a divorce decree, [citations omitted] ... It would be anomalous indeed if the parties, by private agreement after the decree, could modify the terms of a judgment which they had no power to dictate to the court in the first place.

The Hawaii Supreme Court held that private agreements modifying child support obligations were void as a matter of public policy. In Napoleon v. Napoleon, 59 Haw. 619, 585 P.2d 1270, 1273 (1978) the court reasoned that:

Under HRS § 580-47 the court is clearly empowered with continuing jurisdiction regarding the support of the parties’ minor children. Moreover, the court acquired inherent, continuing jurisdiction over a minor once the issue of his welfare was placed before the court .... [Therefore] the agreement, lacking the court’s approval, is clearly not a valid and binding agreement, even as between the parties, [citations omitted.]