McNeal v. Robinson
628 P.2d 358
Okla.
1981
Check Treatment

*1 McNEAL, Appellant, L. ROBINSON, formerly Sheryl Sheryl A. McNeal, Appellee.

A.

No. 53721.

Supreme Court of Oklahoma.

decrease the support child sought per- manent custody of the children. The granted trial court Gary custody of Dennis, found him contempt, innocent of but him pay ordered arrearage, all the $3,440.00, which totaled denying him credit for the time the children lived with him. The trial court also increased the sup- child Holmes, Philip Oklahoma City, appel- for port payment for Denise to per $150.00 lant. month. Warren L. Griffin and Savage, Bob Mid- existing The law in Oklahoma is City, west for appellee. that there can be no retroactive modifica tion of a divorce by agreement decree

DOOLIN, be Justice: tween the parties without court approval.1 The question impression of first for us Gary asserts that this is not a retroactive presented father, case is: should a modification of the but merely an pay ordered to per month child sup- $150.00 allowance of credit for payments he made port, be allowed a credit against an arrear- to support the children while they were age in child support for the time when the However, living with him. whether this is him, children were living with although the as characterized a retroactive modification original divorce decree had not been modi- credit, or an allowance of the end result will fied? remain the same—either the father is Sheryl (appellee) Robinson Gary forced to make payments additional to the McNeal (appellant) 1973, were divorced children’s mother or he is not. We cannot and Sheryl was awarded custody of the agree with Gary’s characterization of the couple’s children, two minor Denise and situation as an automatic allowance of cred Gary Dennis. was ordered to pay $75.00 it. per per child month in child support. Many agree states with the Oklahoma Gary was current in his payments until position; however many begin- states are January 1977 when Dennis moved in with ning to alter the absolute against ret- Gary, who then reduced his payments to roactive per modification. These states permit $75.00 month. In Denise moved in Gary, with the father to be allowed stopped and he all child child payments. support arrearages expenses accrued an child, custody result of his or for Denise Sheryl moved back with in No- voluntary other expenditures made on be- vember Gary resumed sup- child, half of the if equity would so dictate port payments of per month. $75.00 Over- particular circumstances, under the provid- all Denise lived Gary months, with for 19 ed the allowance of credit would not do an and Dennis lived for 23 months. injustice to the mother.2 then Sheryl filed an application to modify the divorce decree to increase child Some courts have held that support, equity will and also sought a citation for contempt allow father credit child support court for the arrearage. Gary sought also payments for voluntary expenditures made modification of the decree to retroactively on payments behalf of child where such Collins, Craig (Okl. 1955). v. (1962); Campbell 285 P.2d 859 Wash.2d 368 P.2d 170 v. Campbell, (1925); 273 S.W. 26 Headley Headley, 277 Ala. 172 So.2d Raczynski Raczynski, (Okl.App.1976), 558 P.2d 425 (1964); Cole, Cole v. 101 Ariz. 30, 1976; denied t. November Cer also see 47 A.L.R.3rd 1031. Stemme, Stemme v. 351 S.W.2d 823 (Mo.App.1961); Briggs Briggs, 178 Or. Martin, 165 P.2d 772 Martin v. If have she had obligee proved could “compulsion

were made under mainte reasonably ongoing incurred “child stances.” of continu expenses anticipation nance” credit where permit jurisdictions Some children, obligee ing such custody of the to the father’s volun- the mother consented of these may be entitled to reimbursement as an alternate manner tary expenditures the amount of child expenses up to support obligations.4 his child satisfying *3 for in the divorce decree. provided rule retro- original The absolute Gary We do not mean to intimate that admit of some active modification should he incurred expenses could have offset rule was formu- qualification. original The per per above the child month child $75.00 fairly rate of divorce was lated when the child maintenance support against Sheryl’s low, increasing rapidly, with the rate but expenses. problems numerous con- multiplying the ARREARAGE; of these divorced fami- AF- cerning the children TO REVERSED AS lies, which the trial court some gives a rule FIRMED AS TO CONTEMPT. solving problems these is far

flexibility rigid the rule. superior prior to IRWIN, J., BARNES, J., V. C. C. WILLIAMS, HODGES, LAVENDER, will still not auto payor parent The OPALA, JJ., HARGRAVE and concur. matically be allowed as a matter of law credit for made in a man any expenditures SIMMS, J., dissents. specified by ner other than that the divorce SIMMS, Justice, dissenting: may period but credit be allowed for recognize I dissent. While I respectfully during obligor, obligee’s which consent him in places that this father’s situation a acquiescence, kept the children in his join I cannot with the sympathetic light, own charge. allowing a majority’s creation of a bar, equities In the case at the against unpaid support pay- credit child to receive credit for the permit Gary would First, I am not convinced that ments. payments by during made him the time his adopting any previously inroad into our ab- him. sup children lived with Because child retroactive modification solute rule port payments are for the benefit of the wise, proper be even in a case. would children, rather than the it parent, custodial Second, adopt- for proper this is not a case would inequitable effectively be to force exception. Additionally, such an I am ing pay support. to twice for their Addi provide afraid that this decision does not tionally, the circumstances in this case guidelines and standards for its adequate finding express would or im judges, attorneys, trial implementation for regarding consent of the mother

plied the parties. and divorced payments, since she made no complaint It states have allowed is true that some years. at least 1½ against unpaid support. Those deci- sions, however, Review of the evidence and facts in are based on one of two ongoing expenses this case shows no parent initial criteria: either the custodial anticipation Sheryl getting pay- the children or agreed, explicitly implicitly, has to back, for obligor provided which should reimburse ment in a mode other thank that decree1; “compulsion her. in the or (1971); Headley Headley, Awapara, 180 725 277 Ala. 172 So.2d S.E.2d Gould v. Jackson, (1964); (Tex.Civ.App.1963). 29 Jackson v. 306 365 S.W.2d Mahon, (1948); McCrady 209 S.W.2d 79 (1979); N.H. 400 A.2d 1173 White v. Ala., (1964); Headley Headley, 172 So.2d 29 White, Md.App. (1977). 368 A.2d 1061 Awapara, Tex.Civ.App., Gould v. 365 S.W.2d Rainey, Frazier v. 227 Ga. Souran, 4. Souran v. 80 Misc.2d 363 N.Y. (1971). S.E.2d 725 Tescher, S.2d 511 Tescher v. (Colo.App.1971); Rainey, Frazier v. 227 Ga. stances” has been found justify to an alter- oped; it will be refined and altered through nate payment mode of which substantially the re- coming years. grist The for that complied with spirit the and intent of the process finement will be those who do not decree.2 prospective judicial seek a modification of decrees, their simply and instead do not prerequisite Neither is present in this comply with them. case. There was no compulsion of circum- here, stances rely nor is Those who on anything might tempted before us be which this affirmatively non-compliance shows that decision to excuse their' the mother consented, hope either to receive retroactive “credit” for expressly or implicitly, to- expenditures than those allowed in the custodial other or changes. situation, precise factual must under- The majority its hinges finding equity stand that if idea is not their mother’s implied consent to pay failure to Court, they may risking shared be support, solely upon period of time *4 responsibility more than the ultimate which elapsed before she filed this action unpaid finding installments or a of con- for contempt. This is not acceptable an statute, tempt. O.S.Supp. We 10 have basis for a of finding consent to an anteced- 1980, 60.6, provides which that where a § ent failure to pay support general,3 in nor is failed, refused, parent has or ne- wilfully it even an accurate reflection of the facts in glected to contribute to the of his this case as the mother that contends she provided child “as in the decree of divorce” relied on father’s repeated assurances that necessary for one it is not to termi- year, he would pay. rights prior nate his to the parental It is a settled rule in Oklahoma that an of has been adoption his child. This statute action for the of recovery unpaid install- very strictly applied by this Court.5 ments for is one for a debt conclusion, persuaded by In I am the fol- created at law and evidenced of record.4 Fowler, lowing Bradley from v. 30 Wash.2d I believe problems that most inherent in a (1948): 192 P.2d 969 system which allows a party under a court might argued “We that it be appreciate order to decide for himself whether he will require respon- equitable that it is not to comply with the decree, terms of that are pay support money appellant dent to to obvious. process This is complicated even his for the time the children were in more the fact that the courts which will that, being custody, proceeding and review his decision to disobey, will assess nature, one the court was equitable of an the situation on equitable considerations. justified allowing respondent in to a cred- Equity, all, after is in the eye of the it of dollars twenty-five one hundred beholder. For that reason I urge attorneys to against required the amount he was to advise their clients to proceed cautiously However, opinion of the pay. we are in matters concerning custody and support. effort equity, that a court of in an even The majority’s exception to the equity, disregard provi- to do cannot the retroactive modification is not fully devel- sions of a nor is such lawful Jackson, 2. Jackson finding compulsion 306 209 S.W.2d of consent or Schlom, 79 Schlom v. 149 Miss. stances. (1928). 115 So. 197 See, Baures, Ariz.App. e.g., 3. 13 Baures v. danger There is some majority’s that the state- (1971); Reyn- 47 A.L.R.3d 1024 P.2d concerning ment allowance of Reynolds, olds v. 192 Okl. P.2d arrearages equity if provided would so dictate (1943). injustice it “would not do an may misinterpreted. to the mother” be separate That is not a Wade, Okl., 570 P.2d 337 Wade independent criterion of compul- consent or a Reynolds Reynolds, 192 P.2d Okl. sion above, of circumstances as discussed (1943). none of the majority’s authorities cited in the Injustice n.2 so indicate. to the mother is in- E.S.P., Okl., Adoption Matter of stead an additional factor to consider after a (1978). offsetting against pay- justified court made under such a required to be

ments made for voluntary payments

decree clothing furnished

medical attention and

children, If, as in this case. was done we here such as have

under a decree us, could refuse to make

before the father him, an payments required such refusal show that

attempt justify money sums of expended

he had certain him, they were with

on his children while would be continuous

it is evident there party

trouble and If a to such a turmoil. provisions its

decree is not satisfied children, custody

relative to the or to be made for their

payments required always into

support, party may such come a modification

court ask for

decree.” only proper “equitable”

I believe that the already

determination in this matter has *5 correctly

been made and decided court; facts, these

trial that under the fa-

ther was not contempt of court. COMPANY, Appellant,

INEXCO OIL

The CORPORATION COMMISSION State and Delhi Oklahoma Gas

Pipeline Corporation, Appellees.

No.

Supreme Court of Oklahoma. 21, 1981.