Thrash v. Thrash

SIMMS, Justice,

dissenting:

I respectfully dissent. The facts of this case present a good example of the problems inherent in a procedure which allows retroactive enforcement of a judgment that is not for a specific and definite dollar amount. When the parties divorced in 1980, Mr. Thrash was ordered by the court to pay a definite amount of $220.00 for child support. He fully complied with that order, but seven years later he was found to be $35,000.00 in arrears based on the speculative increased income provision which his ex-wife had never attempted to enforce. Appellee filed a citation for contempt in December, 1987, and motion to modify to increase child support in January, 1988. In March, 1988, the trial court denied her motion to modify child support and appellee did not appeal. The court found appellant not guilty of contempt but imposed the arrearage at issue here.

The effect of the practice sanctioned here is to allow the parties to modify a child support obligation based on the single contingency of Mr. Thrash’s salary, without the approval of the court. The determination of a sole criterion as sufficient to trigger an automatic modification in advance of any application to the court for modification, and without a court order imposing same, is at odds with our established divorce procedure. It removes the district court from its traditional, and statutory, role in divorce litigation. Enforcement of such an uncertain and unpronounced automatic increase is, as seen in the instant case, most difficult if not impossible.

It has been pointedly observed that the enforcement of an escalation clause is not automatic but remains a judicial responsibility subject to judicial supervision. In Petersen v. Petersen, 85 N.J. 638 , 428 A.2d 1301 (1981), 19 ALR 4th 822 , the court held *670 that while agreements dealing with marital support obligations tied to an escalator formula are not per se invalid, the enforcement of such agreements implicates much larger concerns and remains ultimately a matter demanding judicial assessment and determination. The court found that as with all support provisions, those calling for automatic increases can be judicially enforced only where all equitable criteria are satisfied. In Herron v. Herron 457 N.E.2d 564 (Ind.App.1988), an escalation clause was upheld as valid where the support obligation was to be reviewed and fixed by the court on the 31st day of December of each calendar year.

The terms of the automatic increase in the instant matter were never fixed or pronounced by the trial court. In addition to being speculative, they are vague, indefinite and uncertain. Mr. Thrash testified at length regarding his lack of knowledge of the actual terms of the automatic increase provisions. Any attempt to claim that the amount of appellee’s obligation was clear cannot stand in light of the fact that in the process of this appeal two courts have come up with different amounts due and owing.

It is axiomatic that in a divorce action the court performs its statutory duty of providing for the support of minor children of the parties by looking to all facts and circumstances affecting the parties, and that justice and equity are the governing considerations. Also that the court’s power to modify an award for child support based on a material change in circumstances is not affected by the fact that the award rests in whole or in part on an agreement of the parties. An agreement of the parties as to support is not binding upon the court. Parkey v. Parkey, 371 P.2d 711 (Okla.1962). Donahoe v. Alcorn, 188 Okl. 305 , 108 P.2d 786 (1940); Bynum v. Bynum, 184 Okl. 36 , 84 P.2d 424 (1938). Would this Court’s position be the same if this agreement between the parties decreased appellant’s child support obligation based on a single contingency or hypothetical event agreed to by the parties? I expect under those facts we would find that the self-adjusting child support was improper as contrary to the statutory power and continuing authority of the court to provide, in its discretion, for the support of minor children based on the needs and welfare of the child and consideration of all relevant circumstances.

The protection afforded the rights of minors and the parties by the continuing jurisdiction of the court over the provisions of the divorce decree should not be cast aside by the consent nature of this decree. The same interests and policy concerns which were considered by our decision in Lairmore v. Lairmore, 617 P.2d 892 (Okla.1980), are placed in jeopardy here and should be afforded the same protection.

I am unpersuaded by the majority’s contention that the new Child Support Guideline Schedule supports its holding allowing automatic modification of child support by agreement of the parties based on a single contingency, without involvement of the trial court through judicial adjudication of •support by modification procedures. The authorization of 43 O.S.Supp.1990, § 118, for parties represented by counsel to agree on an initial dollar amount of child support other than the amount which would result from application of the guidelines is not relevant to the escalation clause question before us.

Contrary to the implication of the majority opinion, the child support guideline provisions clearly contemplate that modification of support will be made by the court, in a modification proceeding based on well recognized factors. Section 118(19) provides:

“Child support orders may be modified only upon a material change in circumstances. If the court finds there is a basis for modification, the child support guidelines provided in the act shall be used in computing child support, subject to the court’s discretion to deviate from the guidelines where the amount of support is unjust, inequitable, unreasonable or inappropriate under the circumstances, or not in the best interest of the child or children involved, and such deviation is supported by specific findings. *671 The enactment of these guidelines alone shall not constitute a material change in circumstances.”

I would also hold that even if the support arrearage is valid, the appellee is barred from attempting to recover same by laches. Having made no attempt to establish or enforce this automatic clause for over six years, I would hold appellee is now estopped from doing so. It was only after appellant filed a motion to set specific visitation in May of 1987 that appellee commenced the contempt proceeding in December of 1987. Appellant relies correctly on the decisions in Kissinger v. Kissinger, 692 P.2d 71 (Okla.App.1984), and McNeal v. Robinson, 628 P.2d 358 (Okla.1981), to support his position that the appellee’s uncomplaining consent to a departure from the terms of the decree have estopped her right to now enforce collection of those sums.

The reasoning of the Court in Lairmore, supra, should be applied to the facts before us and we should uphold the Court of Appeals’ reversal of the trial court’s judgment.