In Re Marriage of Duerr
250 Ill. App. 3d 232, 190 Ill. Dec. 251, 621 N.E.2d 120 (1993)
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Rule of Law:
A parent may be equitably estopped from collecting child support arrearages if their conduct led the obligor parent to reasonably believe child support payments were not required because the obligor had assumed full custody and financial responsibility for the children, and the obligor parent acted to their detriment in reliance on that conduct.
Facts:
- Nancy Duerr and Gordon Duerr divorced in 1983, with Nancy receiving custody of their two sons, Jay and Bradley, and Gordon being ordered to pay child support.
- In May 1988, both sons went to live with Gordon in Indiana by mutual agreement after one son expressed a desire to do so.
- After the children moved in, Gordon purchased a new home for $125,000, spent $75,000 on improvements, and hired a nanny to care for the boys.
- Gordon ceased making formal child support payments to Nancy but sent her 11 post-dated checks for $1,350 each, which he claimed were to help her transition out of her lease.
- Nancy accepted and cashed all 11 checks without protest or discussion.
- Nancy made no child support contributions to Gordon during the entire time the boys lived with him.
- In June 1990, the older son, Jay, returned to live with Nancy.
- More than a year after the last of the 11 checks was cashed, Nancy sought to collect child support arrearages for the period of May 1989 to July 1990.
Procedural Posture:
- Nancy Duerr and Gordon Duerr were divorced by an Indiana court order in 1983.
- In August 1987, an Illinois circuit court increased Gordon's child support obligation.
- On July 6, 1990, Nancy filed a petition for rule to show cause in the Illinois circuit court (trial court), alleging Gordon owed $18,900 in child support arrearage.
- Gordon asserted the affirmative defense of equitable estoppel.
- The trial court found that Nancy was equitably estopped from collecting the arrearage and denied her petition.
- Nancy, as the appellant, appealed the trial court's order to the Illinois Appellate Court, with Gordon as the appellee.
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Issue:
Is a parent equitably estopped from collecting child support arrearages for a period when the children were living with and being fully supported by the other parent, and the parent seeking arrearages acquiesced to this arrangement?
Opinions:
Majority - Presiding Justice Jiganti
Yes. A parent is equitably estopped from seeking child support arrearages when their conduct induces the other parent to their detriment to reasonably rely on an understanding that the support obligation was suspended. The court found clear and convincing evidence that Nancy Duerr's conduct—agreeing to the children moving, accepting 11 payments without protest, and failing to contribute to the children's support herself—led Gordon Duerr to reasonably believe he no longer owed her child support. Gordon relied on this to his detriment by taking on the full financial burden of supporting the children, including buying a new house and hiring a nanny. To allow Nancy to collect back support would amount to an unwarranted windfall, as she did not actually furnish that support. The court distinguished this case from those involving unilateral cessation of payments or bargaining away visitation rights, emphasizing that an informal change in custody where the obligor parent provides full support lends significant credibility to an equitable estoppel defense.
Analysis:
This decision reinforces the application of equitable estoppel as a defense against claims for child support arrearages, particularly in situations involving a de facto change in custody. It establishes that a parent's conduct, not just an explicit agreement, can create a reasonable reliance that suspends a support obligation. The case distinguishes between parents who unilaterally stop paying and those who stop paying in the context of taking on the full financial and physical care of the children, thereby preventing the other parent from receiving an unfair windfall. This provides a crucial defense for parents who assume full support responsibilities based on the other parent's acquiescence, even without a formal court modification.
