Marriage of Schrock v. Gonser

OPINION

HOFFMAN, Judge.

Appellant-petitioner Judy (Gonser) Schrock appeals the trial court's judgment in favor of the appellee-respondent William Gonser. The facts relevant to the appeal are recited below.

The parties were granted a dissolution of marriage in August 1980. In January 1982, William was ordered to pay $137.00 per week directly to Judy for the support of the parties' five minor children. No other proceedings transpired until Judy filed a verified petition for a rule to show cause in June 1993.

A hearing was held on the petition in February 1994. William testified that he had unilaterally reduced child support payments, as he determined that certain children were emancipated. William stated that he did not seek a court order modifying or reducing his support payments.

On May 17, 1994, the trial court entered findings of fact and conclusions of law finding that equity prevented enforcement of the child support order. William was not held in contempt, and the court did not order a judgment for the arrearage. A letter written by Judy to the court was treated as a motion to reconsider, and another hearing was held. *616No judgment was entered after the hearing. This appeal ensued.

As restated, Judy raises one issue for review: whether the trial court erred in failing to enter a judgment for Judy and fixing an arrearage amount.

When a parent is ordered to pay a specified sum of undivided support for more than one child, the parent must pay that amount until the support payments are modified by court order or all of the children are emancipated or reach the age of 21 years. Kirchoff v. Kirchoff (1993), Ind.App., 619 N.E.2d 592, 596. The Court noted:

"Although modification due to emancipation can be effective as of the date of emancipation ..., if one or more uneman-cipated children are also covered by the support order, the obligated parent's duty to support the remaining minor children according to the terms of the original support order continues, even after emancipation of one or more of the children, until the parent's duty to support the minor children is modified by the trial court.... Therefore, as long as there remains one unemancipated minor child, the parent is required to make support payments in the manner, amount, and at the times required by the original child support order.... If a parent desires a reduction of the undivided support order as children become emancipated, the parent must petition the trial court to modify its original order."

Id. (Citations omitted.).

Further, even if a custodial parent agrees to forego child support, an estoppel or laches defense would not preclude the parent from asserting a claim for past due child support. Ort v. Schage (1991), Ind.App., 580 N.E.2d 885, 336. An agreement to forego child support is unenforceable because the parent has no right to contract away the child's support benefits. Id.

Here, the trial court and William rely entirely upon Judy's failure to complain about the unilateral reduction in child support amounts to find that she has "unclean hands." Given that the equitable doctrines of laches and estoppel do not control child support arrearage determinations, the cause is reversed and remanded. On remand, the trial court is instructed to fix the child support arrearage in accordance with the evidence adduced at the hearing held in February 1994.

Reversed and remanded.

GARRARD, J., concurs. BAKER, J., dissents with opinion.