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Lewis v. Staub

OPINION FILED APRIL 9, 1981.

SUSAN K. LEWIS, A/K/A SUSAN K. STAUB, PLAINTIFF-APPELLANT,

v.

ROBERT F. STAUB, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Vermilion County; the Hon. RALPH S. PEARMAN, Judge, presiding.

MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 20, 1981.

This appeal is centered around the question of whether a non-custodial parent may unilaterally reduce unallocated child-support payments upon the death of one of his minor children.

There is little dispute over the facts. The plaintiff Susan Lewis, formerly Susan Staub, and the defendant, Robert Staub, were married in 1963. They had two children, Patrick and Matthew. The parties were divorced on December 26, 1972. The divorce decree awarded custody of both children to plaintiff, and the defendant was ordered to pay the plaintiff $150 each month for child support. Specific amounts of the $150 were not allocated to the children; the $150 was a lump-sum payment for the benefit of both children.

On April 10, 1980, plaintiff filed a petition to increase child support and a petition for rule to show cause. After a rule to show cause was issued by the trial court, a hearing on the plaintiff's requests was held on July 10, 1980. At the hearing, the parties, by stipulation, agreed that future child-support payments would be modified to $30/week. The parties also stipulated that from August 1, 1975, up to the date of the hearing, the defendant had paid $4,350 in child support (an average of $75/month). If defendant would have paid $150/month, he would have paid the plaintiff $8,700, $4,350 more than what he actually paid her.

The hearing revealed that one of the parties' children, Matthew, was killed in a car wreck on August 1, 1975. Subsequent to Matthew's death, plaintiff received a letter dated December 23, 1975, from defendant which, in relevant part, stated:

"As you are aware I have been paying you for the last four months (Aug, Sep, Oct & Nov) for both boys. I have just received the proper authority to discontinue the full amount and in the future you will be receiving only half the amount.

Since the money has already been paid, I will not be sending another check until sometime in April for Patrick.

I hope this is in agreement with you. If not, please contact my lawyer, Mr. Thomas Smith there in Danville."

Plaintiff testified that she did not contact the defendant concerning the letter. Approximately two years later, during February 1978, the plaintiff's attorney contacted defendant's attorney concerning support and the possible adoption of Patrick by the plaintiff's new husband. However, at no point does the evidence suggest that the plaintiff complained about the reduced child-support payments until she initiated this suit.

After the defendant testified, the trial court ruled that the defendant was $1,450 in arrears, and ordered him to pay off this amount at the rate of $10/week. Subsequently, the plaintiff filed a motion to reconsider, stating that she was entitled to $4,350. After a hearing on this motion, the trial court rescinded its previous order and held that the plaintiff was estopped from claiming arrearages for child support. It is from this order that the plaintiff appeals, claiming that she is entitled to $4,350. We agree with the plaintiff.

Defendant contends that the trial court's order denying the plaintiff any recovery was correct for three possible reasons: (1) The parties mutually modified the child support order; (2) the death of the parties' minor child terminated one-half of the defendant's child support obligation; and (3) the plaintiff is estopped from claiming past-due child support payments.

• 1 Defendant contends that plaintiff's receipt of the letter set out above, and her subsequent acquiescence to the reduced payments until April 1980, shows that she agreed to the reduction. According to the defendant, the reduction of the child support payments was done with the "mutual assent" of both parties.

Defendant's reliance on contract law is misplaced. The record evinces that the plaintiff did not receive any consideration for the reduced payments. Moreover, the letter shows that the decision to reduce child support payments was made by the defendant without assent from the plaintiff. In short, defendant's contention that the ...


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