dissenting.
I must respectfully dissent from the majority opinion because the Court of Appeals was correct in affirming the circuit court on the basis that the failure of a parent seeking child support to have actual custody of the child can terminate the duty to pay support to that parent.
In this case, the Court of Appeals and circuit court were correct because the oral agreement between the parties satisfied any child support obligation. The change in actual custody and the ending of child support payments constituted a complete acquiescence by the wife to the oral modification of the custody agreement. Equity prevents the wife from receiving child support payments for the period that the husband provided all the support for the son.
The parties may modify child support by oral agreement. Tinnell v. Tinnell, Ky.App., 681 S.W.2d 918 (1984). Such agreements are enforceable prospectively if they can be proven with reasonable certainty and they are fair and equitable and if the modification is on the same terms as might reasonably been granted had there been a motion at the time of the agreement. Whicker v. Whicker, Ky. App., 711 S.W.2d 857 (1986). This Court has recognized that many parents can agree without the aid of the legal system to a modification of custody and child support. Clearly, a court has authority to recognize the modification of such obligations and to reduce the arrearage accordingly. Mauk v. Mauk, Ky.App., 873 S.W.2d 213 (1994). Also see, Whicker, supra, and Tinnell, supra.
The situation presented here is highly inequitable. The mother waived her right to child support by surrendering physical custody of the child for almost two years before seeking to collect any alleged arrearage. There is no equitable reason to provide a windfall for the wife in a situation where she did not provide for the support of the child. The trial judge was acting with proper discretion when he determined that “child support is for the benefit of the child” and that in this circumstance “it would be unfair to require child support to be paid” for periods after October 1990. The Court of Appeals agreed, and although not condoning the actions of the father in ignoring the order of the court concerning the method and amount of support, properly found no abuse of discretion on the part of the trial judge. Now a majority of this Court “finds” that the trial judge had no power to relieve the father of his support obligations. This is clearly an invasion of the factfinding authority of the trial judge. Neither the law nor equity supports such a substitution of findings.
This case teaches a very harsh lesson to those who are litigants in a domestic relations matter. The sad conclusion that must be drawn from such a situation is that it is always necessary to obtain such modification in writing and with the specific approval of the circuit court. It is a primary but hard lesson that voluntary payments and even *48beneficial conduct are simply that, only voluntary, and clearly have no legal support.
GRAVES and REYNOLDS, JJ., join in this dissent.