concurring in part and dissenting in part:
I concur in the ruling of the majority in every respect except that I would deny plaintiff back support from the date of the June 1977 agreement until she terminated her acquiescence in that agreement and initiated the instant proceedings in March 1984. I dissent from the ruling of the majority and would uphold the finding of the circuit court that plaintiff was estopped from claiming back support to that extent.
Although the language in some of the cases cited by the majority is broad, the section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 510(a)) purports to prohibit court modification of past-due support payments accruing prior to a petition to modify, the majority recognizes that a parent may be estopped from collecting such past-due payments. In Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12, cited by the majority, the supreme court recognized the existence of such an estoppel rule. The situation in regard to past-due support payments must be distinguished from future support payments. Under section 510(a), a court may modify prior provision for support payments on a showing of a material change in circumstances and good cause, but prior conduct of the recipient parent cannot work an estoppel binding on that parent in the future. That was the rule set forth in Leland v. Brower (1963), 28 Ill. 2d 598, 192 N.E.2d 831.
In Leland, a divorcing father was ordered by the court to make support payments. Subsequently, the mother and father agreed that he could cease making the payments and that she would support the children. Still later, the mother filed a petition requesting that the father be required to resume payments. The trial court ordered him to do so. The supreme court ultimately held that the father should not have been required to make payments because he was not able to do so. The language quoted by the majority was stated in the context of explaining that the prior agreement would have prevented the court from ordering future payments.
Agreements between former spouses that the obligor spouse need not make ordered support payments together with reliance thereon by that former spouse have been held to be a sufficient partial basis for estoppel as to arrearages not only in Bartlett v. Bartlett (1979), 70 Ill. App. 3d 661, 389 N.E.2d 15, but also in the cases of In re Marriage of Strand (1980), 86 Ill. App. 3d 827, 408 N.E.2d 415, and Wolfe v. Wolfe (1940), 303 Ill. App. 188, 24 N.E.2d 871, and dictum in other cases have approved such a ruling. In Elliott v. Elliott (1985), 137 Ill. App. 3d 277, 279, 484 N.E.2d 482, 483-84, also cited by the majority, this court stated that in a “proper case” the court will “give effect to an agreement between the parties to reduce child support payments or will apply the doctrine of equitable estoppel.”
The general tenor of the cases approving an estoppel based on an agreement is that for such an estoppel to occur: (1) the obligor former spouse must have relied on the agreement to his detriment; (2) the recipient spouse must have acquiesced in the nonpayment of support over an extended period; and (3) most importantly, the welfare of the child or children to be supported must not be prejudiced thereby. Although not mentioned in those cases, another requirement for an estoppel would be the requirement that no governmental entity has a subrogation right because of support it has been giving to the benefit of the children while the court-ordered support was not being paid. None of the cases have required that the spouse against whom the estoppel operates be guilty of fraud or of any intent at the time of the agreement not to follow the agreement.
Here, the majority does not dispute that the evidence was sufficient for the court to have found that (1) in June of 1977, plaintiff agreed that defendant need pay no more support; (2) defendant agreed that he would not visit the children; (3) he did not do so; (4) defendant acted in reliance on the agreement; and (5) defendant was prejudiced by not seeing the children. The majority does not consider the foregoing of visitation to be a type of prejudice that should be recognized. I contend that defendant suffered the further prejudice that was inherent in conducting his affairs from 1977 until 1984 under the assumption that he did not need to be saving money to eventually make the back support payments. I recognize that in Jones v. Meade (1984), 126 Ill. App. 3d 897, 467 N.E.2d 657, this court indicated that an obligor former spouse is not damaged by having to pay overdue payments in a lump sum. However, there, this court stated that the obligor former spouse had not been misled into reasonably believing that he would not have to make the payments. Significantly, in Jones, this court made it very clear that the trial court had found that there was no agreement that the obligor former spouse was not required to make the payments.
The record gives no indication that plaintiff had been receiving any public aid from a governmental unit. The question of whether the rights of the children were prejudiced by the trial court’s allowance of estoppel is a substantial question which I will discuss later. I conclude that those rights will not be prejudiced upon a court order for proper future support payments.
The cases cited by the majority holding that a former spouse, under court order to make support payments, cannot defend against an action for past-due installments on the basis that the parties agreed to suspension or reduction of the payments are Huckaby v. Huckaby (1979), 75 Ill. App. 3d 195, 393 N.E.2d 1256, and Nelson v. Nelson (1950), 340 Ill. App. 463, 92 N.E.2d 534. Both involve agreements requiring the obligor former spouse to forego visitation but in neither case does the opinion discuss a theory of estoppel. The Nelson court indicated that a claim for back support cannot be defended on the basis of an agreement for suspension of the payments. If that be taken as authority that an estoppel can never arise from an agreement of the parties to suspend payments, then the decision is contrary to the decisions in Bartlett, Strand, and Wolfe, and dictum of this court in Elliott, and indications of this court in Jones that an estoppel could arise from such an agreement.
The Huckaby court was concerned with a problem which is closely related to what I consider to be the most serious issue in this case. That issue is whether estoppel can arise in cases where the detriment to the obligor spouse is a forbearance from the exercise of visitation rights. In Huckaby, the parties had been divorced in 1973, with the father ordered to pay child support of $15 per child per week. The father had been unable to make payments for a while because of an injury. Dispute arose over the father’s ability to pay and whether the custodial mother was permitting reasonable visitation. The parties stipulated to an order whereby the father’s duty to pay support was to terminate until further order if the mother failed to allow the father visitation. In 1978, the mother petitioned for back support. The trial court denied back support based upon the stipulated order. On appeal, the Fifth District, in a split decision, held that the stipulated order was void as against public policy.
While the Huckaby court indicated that any agreement to absolve a parent from a support obligation was invalid, it also was concerned with the analogy between the situation there and the situation when a divorced spouse obligated to make support payments seeks to justify nonpayment on the basis that proper visitation has not been provided. That is not a valid defense. (Slavis v. Slavis (1973), 12 Ill. App. 3d 467, 299 N.E.2d 413.) In Huckaby, the stipulated order purported to give the father that defense.
The question thus arises as to whether the public policy behind the Slavis ruling also prevents an estoppel based upon reliance on an agreement that support may be terminated in exchange for a promise not to visit. I conclude that it does not. To permit withholding of support because of visitation violations by the custodial parent would create an invitation to continued dispute and result in a parent depriving his children in order to punish or force compliance from the custodial spouse. On the other hand, the estoppel rule is applied only after there has been an acquiescence in the agreement for a substantial time. Furthermore, estoppel can only be applied when its application is not prejudicial to the children.
When all children are emancipated by the time back support payments are sought, the children are not prejudiced by application of an estoppel. Even when that is not the case, if, as usually ordered, the back support is ordered paid in a lump sum, there is little assurance that the money will be used for the children. Often the parent making the payment has to borrow to do so. This impairs his ability to make future support payments. Ordinarily, the best interests of children are served by requiring the parent to make adequate future payments while not impairing his ability to do so. The estoppel found by the trial court to exist here will not be prejudicial to the interests of the children of the parties as long as defendant is required to make the additional support payments in the future as required by the terms of the majority opinion. Although the question is a close one, under the circumstances shown, I would hold that an estoppel may be based on the type of agreement here even though most of the detrimental reliance by the noncustodial former spouse is his refraining from exercise of his visitation rights.
As I have stated, I would not estop plaintiff from obtaining child support which had accrued up to the time of the agreement in June of 1977. The proof is not clear that plaintiff agreed that those past-due amounts would be forgiven. Rather, she admitted she understood that subsequent payments would not be made. To this extent, the denial of estoppel was proper.