Court of Appeals reverses equitable estoppel defense to past due child support

Posted Monday, January 6th, 2020 by Gregory Forman
Filed under Child Support, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

Continuing a very recent pattern of appellate courts disregarding the family court’s credibility determinations, the December 31, 2019, Court of Appeals opinion in Bauckman v. McLeod, 429 S.C. 229, 838 S.E.2d 208 (Ct. App. 2019), reversed a family court finding of equitable estoppel.

In Bauckman, the parties reached a court-approved agreement in 2002 that Father would pay $399 per month in child support. In April 2008, Father began paying $240 per month and did not pay any child support for the summer months during which he had the child. In 2015, Father filed a complaint seeking to confirm he had no child support arrearage and to “increase” his child support to $399 per month. Mother counterclaimed for child support arrears, plus interest, and an increase in child support.

At trial, Father argued equitable estoppel as a defense to his child support arrearage, claiming he had reached an oral agreement in March 2008 with Mother to reduce his obligation, based upon his difficulty paying the court-ordered amount. The family court, noting that Mother had made no attempt to collect unpaid child support for a seven-year period, and finding Mother and her witness less credible on the issue of the alleged agreement, found equitable estoppel. However, rather than eliminating Father’s child support arrears, it reduced it from $17,430 to $14,310. Because it found equitable estoppel, it denied Mother’s request for judgment interest. It further found Mother had failed to demonstrate a substantial change of circumstances to support an increase in child support. Finally, it ordered Mother to pay child support some attorney’s fees. Mother appealed.

On appeal, the Court of Appeals reversed the finding of equitable estoppel. It noted, that S.C. Code § 63-17-310, holds that child support “modification is effective as to any installment accruing prior to filing and service of the action for modification.” While recognizing equitable estoppel as a defense to support arrears, the Court of Appeals also noted the doctrine is infrequently approved [that’s been my experience in both the family court and the Court of Appeals]. Where the family court found it noteworthy that Mother provided no written objection to the reduced child support, the Court of Appeals noted Father could produce no written evidence of the alleged agreement. It determined that Mother’s apparent acquiescence was insufficient evidence of an agreement. If further held that Father failed to demonstrate any detrimental change in position–a necessary factor in an equitable estoppel defense–based on this alleged agreement.

Because the Court of Appeals rejected Father’s equitable estoppel claim, it also reversed the award of attorney’s fees and granted Mother judgment interest.

The Court of Appeals affirmed the family court’s decision not to modify child support. It found that the parties’ remarriages and subsequent children were not bases to modify child support. It found that Mother had failed to prove Father’s income had increased or her income had deceased since 2002 [a reminder that financial declarations, or the lack thereof, remain vital to subsequent support litigation].

Equitable estoppel is hard to prove. Given the lack of evidence of detrimental reliance Father presented [or, at least, what the Court of Appeals alleges Father presented] I’m not surprised that the Court of Appeals reversed the family court’s finding. However, I remain surprised at how willing the appellate courts have recently been to disregard the family court’s credibility determinations. I never expected the de novo factual finding that Lewis and Stoney require would significantly invade such determinations. In 2019 they began doing so.