The opinion
STUBBLEFIELD, Judge,
dissenting.
I respectfully dissent. Although the majority opinion carefully steers away from any indication that it represents an acceptance of a retrospective modification of a ■child support order, I believe that is exactly what it does. In doing so, I think the opinion far exceeds the exception to the general rule espoused in McNeal. McNeal recognized that equitable considerations might allow some variation from the hard and fast provisions of a divorce decree. Specifically the court in McNeal ruled that a father should not be responsible for child support for a period of time when the child had been in his custody, except for ongoing child maintenance expenses which mother could prove she incurred in anticipation of continuing custody of the child. It is a far leap from that proposition to the tenet that a mother should be estopped from recovering an arrearage representing an extrajudicial reduction in father’s court ordered child support payments to which she grudgingly agreed. This variation in the rule prohibiting retrospective child support modification would remove the matter from the absoluteness of the court's decree and subject it to parental whims often based upon factors other than the best interest of the child. Enforcement of extrajudicially modified support would likewise be stripped of the certainty of the court’s decree and replaced with the vagaries of parental memory and motivation. This could certainly work to the detriment of the child involved and may even represent a trap to the paying parent if the court does not subsequently agree that the parties’ reduction or modification is equitable. I believe the dissent in McNeal points out the very real problem that can arise where the parties are encouraged to modify a court’s orders extrajudicially.
The majority likewise substitutes its judgment for that of the trial court. The lower court was faced with a determination of whether the parties’ situation called for equitable relief as provided for in McNeal. The court found it did not. Based upon the evidence, I find no abuse of discretion in that ruling.
I would affirm the trial court.