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Ruster v. Ruster

OPINION FILED DECEMBER 24, 1980.

LEE RUSTER, A/K/A ASALEE CIFONIE, PLAINTIFF-APPELLANT,

v.

DONALD RUSTER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Kane County; the Hon. NEIL MAHONEY, Judge, presiding. MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

The plaintiff appeals from an order of the circuit court of Kane County dismissing her complaint, which sought a money judgment for arrearage of child-support payments and for an allowance of attorney's fees and costs. Following an evidentiary hearing, the trial court found that the evidence sustained the affirmative defenses of equitable estoppel and laches raised by the defendant.

The parties were married on December 5, 1958, and thereafter had one child, Jeffrey. On May 31, 1961, a divorce decree was entered which directed, in part, that the defendant, Donald Ruster, pay to the plaintiff, Lee Ruster, the sum of $10 per week for the support and maintenance of the couple's minor child. An order modifying the divorce decree was entered on February 19, 1968. The order provided that defendant should pay the sum of $22 per week for the maintenance and support of Jeffrey Ruster.

On January 26, 1979, plaintiff filed the instant suit seeking an arrearage of child support payments. The suit alleged that defendant failed to make any such payments from November 30, 1969, through July 10, 1978, the minor's 18th birthday. Defendant's answer raised the affirmative defenses of equitable estoppel and laches.

The issue of equitable estoppel here focuses on a series of letters transmitted between the parties in December of 1969 and January and February of 1970. On December 6, 1969, plaintiff wrote to defendant's attorney as follows:

"* * * As for reducing support payments, my husband, Jan Cifonie, is willing to take the entire responsibility of Jeff's support and education if Don will give up his visitation privilege. Otherwise, I do not wish to accept a decrease in support without a court order as I am not able to return to work at this time. My husband feels that it would be a privilege rather than an obligation to support Jeff, and if this is agreeable to Don, his financial burden can be lightened permanently." * * *

After not having received a response to this letter, plaintiff, through her attorneys, again wrote to her former husband's attorney on January 21, 1970, as follows:

"* * * I am certain that specific visitation rights can be worked out along with a reduction in child support if the situation warrants it, but before anything can be worked out, the arrearage must be paid in full.

Mrs. Cifonie has mentioned another solution, that is the adoption of the child by her present husband. Kindly discuss this with your client and then let me hear from you."

Defendant then responded through his attorney on February 2, 1970:

"* * * Mr. Ruster's position has been outlined in my letter to Mr. Jacobs, a copy of which you have. If you will prepare the necessary Stipulation to Amend the Judgment of Divorce in line with our suggestions, reducing the present support until September 1, 1970, and then reinstating it; and, also spell out specific visitation rights for the Christmas season as well as the summer visitation, we will be glad to sign the same and return to you for processing. * * *

With regard to the adoption of the child by Mr. Cifonie, Mr. Ruster is not agreeable thereto." * * *

Defendant stated at the hearing that he relied on the representations made in the letter of December 6 and discontinued his visitation of Jeffrey in exchange for the cessation of child support payments. In his brief, defendant states that the December 6 letter and defendant's subsequent actions, in fact, established an agreement between the parties to simultaneously cease support payments and visitation privileges.

Plaintiff testified that she was really referring to adoption in the letter of December 6 and this suggestion was refused by the defendant in the letter of February 2.

The doctrine of equitable estoppel is an exception to the otherwise rigid rule that child-support payments become vested when and as they accrue. (Jozwick v. Jozwick (1979), 72 Ill. App.3d 17, 21; In re Estate of Neirinck (1978), 62 Ill. App.3d 189.) The well accepted definition of the doctrine has ...


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