dissenting. Because I am of the opinion that appellee failed to satisfy the third and fourth elements necessary to avail himself of the equitable estoppel defense, I respectfully dissent. Specifically, appellee has proven neither that he was ignorant of the facts nor that he relied on appellant’s conduct to his detriment.
The majority has determined that the following made ap-pellee ignorant of the fact that child support was legally accruing: (1) his conduct of neither seeing his children nor paying support after the date of the letter, (2) his testimony that it was his belief that the agreement relinquishing his parental rights and stopping child-support payments was enforceable, and (3) the trial court’s credence to appellee’s testimony that he was not informed by his attorney about the invalidity of the agreement. I do not agree.
A parent has a legal and moral duty to support his minor children, regardless of the existence of a support order. See Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002); Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (1998). Neither the dissolution of the marriage tie, nor awarding custody of the children, either permanently or temporarily, to the mother, relieves the father of his obligation to support them. Id. Here, appellant’s actions in telling appellee to “just give [the kids] up,” and appellee’s reliance thereupon, are insufficient to relieve him of his legal and moral obligation to his minor children. Even when the support obligation may be affected by contract, the duty cannot be bartered away permanently to the detriment of the child. See Fonken v. Fonken, supra.
Appellee knew that the court had ordered him to pay $6095.92 in support each month for his two children. Thus, he was not ignorant of the facts in this instance. See State v. Burger, 80 Ark. App. 119, 92 S.W.3d 64 (2002) (equitable estoppel was not applicable in part because appellee was not ignorant of the fact that he had not paid court-ordered child support). Furthermore, notwithstanding the existence of an “agreement” between him and appellant, appellee continued to have a moral duty to provide support for his children. It is clear from the facts of this case that appellee recognized that duty. Appellee continues to provide child support for his older daughter from a previous marriage, “as well as college living expenses and all other expenses,” regardless of the fact that she has reached the age of majority and there no longer exists an order. His recognition is further evidenced by the continued insurance coverage he provides for A.C. and K.C. and by appellant’s testimony that appellee sent a child-support payment in January of 2004 in the amount of $2950. The submission of this payment was, notably, after appellee wrote the February 1999 letter in which he agreed to “surrender” his parental rights and “terminate” his child support payments.
Appellee has also failed to show that he relied on appellant’s conduct to his detriment. The trial court and this court recognize that the detriment in this case is not monetary but is the amount of time that appellee has lost with his children, which is time that can never be regained. I can agree with this notion to some extent; however, I cannot find where appellee regularly exercised his visitation prior to the February 1999 “agreement.” Appellee acknowledged that, for a period of approximately seventeen months prior to December of 1998, before writing the letter, he did not regularly exercise his visitation with the children. Many times, he explained, he would drive the four-hour round trip to Tulsa, only to be denied visitation for one reason or another.1 Notwithstanding this, however, appellee obviously knew that he could seek court intervention because he had previously filed a contempt proceeding against appellant for her refusal to allow him proper visitation with the children for Christmas in 1998. Regardless, payment of appellee’s child support was not dependent upon his visitation with the children. See State v. Robinson, 311 Ark. 133, 842 S.W.2d 47 (1992). Appellee could have availed himself of all the judicial processes to enforce his visitation rights.
Additionally, as a matter of public policy, it is my contention that equitable estoppel should not apply with the same force in matters such as these where you have a third party (the minor child) involved and for whose benefit the child support payments inure. An order of support is for the benefit of children, even though it is directed to be paid to the mother or other custodian. Office of Child Support Enforcement v. Harris, 87 Ark. App. 59, 185 S.W.3d 120 (2004) (citing Miller v. Miller, 929 S.W.2d 202 (Ky. Ct. App. 1996)). The courts have said that once a child-support payment falls due, it becomes vested and a debt due to the payee. State v. Burger, supra. It has long been the law in Arkansas that the interests of a minor cannot be compromised by a guardian without approval by the court. Davis v. Office of Child Support Enforcement, 322 Ark. 352, 908 S.W.2d 649 (1995). Our supreme court has further provided that:
It is not sufficient that a court be made aware of a compromise agreement and that it is agreeable to the guardian; rather, the court must make a judicial act of investigation into the merits of the compromise and into its benefits to the minor. Any judgment by a court that compromises a minor’s interest without the requisite investigation is void on its face.
Id. at 355-56, 908 S.W.2d at 651-52. Although equitable estoppel has been used in other instances such as this where the parties reach an agreement to cease support, see Truman v. Truman, 256 Neb. 628, 591 N.W.2d 81 (1999) (custodial parent agreed that neither she nor the non-custodial parent would be obligated to pay child support to each other because both had custody of one child); In re Marriage of Harms v. Harms, 174 Wis. 2d 780, 498 N.W.2d 229 (1993) (where custodial parent removed the children in her custody from the state where the father resided, advised him in writing that she no longer expected him to pay child support, and took no legal action to enforce the original child-support obligation for a period of seven years, she was estopped from collecting accrued child support), such extrajudicial agreements of the parties regarding termination of child-support obligations are enforceable under the doctrine of equitable estoppel where the children are not adversely affected. See State v. Stephen Leo S., 198 W. Va. 234, 479 S.E.2d 895 (1996) (holding that extrajudicial agreement of parties regarding termination of child support obligations was enforceable under doctrine of equitable estoppel where welfare of children not adversely affected); McNattin v. McNattin, 450 N.W.2d 169 (Minn. App. 1990) (holding that mother’s extrajudicial agreement not to seek child support in exchange for father’s agreement to relinquish custody of child to her not binding upon the court but was enforceable under doctrine of equitable estoppel).
Here, the evidence indicates that the children may have been adversely affected. Unlike the situation in State v. Stephen Leo S., supra, where the children received financial support from their step-father, Thomas Crouse, who contracted under an express agreement that such support was provided on behalf of the non-custodial father,2 and where the record did not disclose that the children were ever deprived of their financial needs due to any default by Thomas Crouse in meeting such obligation, the appellant in this case underwent some financial difficulties. Appellant testified that:
Once a majority of the inheritance money was depleted, I initiated the action to recover the outstanding child support. By the time the action was filed, I did not have enough money to take care of the children.
I further note that the children have not been named as parties in this matter. To the extent that the two children of the parties wish to assert any right they may have to past child support obligations by the appellee, they are presumptively capable of bringing an independent action against their father. Our law provides that, once a child turns eighteen, he or she may file a petition to collect unpaid support from the non-supporting parent. See Ark. Code Ann. § 9-14-105(c) (Repl. 2002).
I am authorized to state that Judges Bird, Griffen, and Baker join in this dissent.
In determining that appellee has not proven the elements of equitable estoppel, I in no way mean to endorse the tactics used by the appellant. She obviously thwarted appellee’s visitation on many occasions, and she was not entirely innocent in this situation. She knew that the “agreement” was unenforceable; nevertheless, she chose to forego seeking child support until such time that she felt the children were ready to exercise visitation with their father. I do not condone such conduct. Regardless of this, appellee did not meet his burden of proving the third and fourth elements of equitable estoppel.
In State v. Stephen Leo S., supra, the custodial parent decided to marry Thomas Crouse while that same year her ex-husband and the non-custodial parent decided to marry Crouse’s ex-wife, Sharon Crouse. Thomas and Sharon Crouse had three children from their marriage. Prior to the remarriage of the four individuals, they each executed an agreement that purported to absolve the non-custodial father of child support payments to the custodial parent. Under the agreement,Thomas Crouse was obligated to provide for the support of the non-custodial father’s two children. In turn, the non-custodial father agreed to provide for the support ofThomas’s three children.