§28.11 Defenses to Collection

• Jurisdiction: Washington

§ 28.11 DEFENSES TO COLLECTION

A number of defenses may be raised in a child support collection case. The obligor has the burden of establishing the defense or proving payment. Schafer v. Schafer, 95 Wn.2d 78, 621 P.2d 721 (1980). Before examining any defenses, however, the role of the residential parent toward the child must be examined.

[1] Informal Agreements Between the Parents

Agreements between parents to modify the amount owed for child support are discussed below.

[a] Current Support

With regard to current child support, the residential parent has no personal interest in the support funds but acts as trustee for the child's benefit. Hartman v. Smith, 100 Wn.2d 766, 768, 674 P.2d 176 (1984). The real parties in interest are the children themselves. Mosher v. Mosher, 25 Wn.2d 778, 172 P.2d 259 (1946); Griggs v. Morgan, 4 Wn. App. 468, 481 P.2d 913 (1971). Therefore, any agreement between the parents to modify prospective child support is invalid as against public policy and void. Hartman, 100 Wn.2d at 768; Wheeler v. Wheeler, 37 Wn.2d 159, 222 P.2d 400 (1950); In re Marriage of Moore, 49 Wn. App. 863, 746 P.2d 844 (1987); In re Marriage of Pippins, 46 Wn. App. 805, 732 P.2d 1005 (1987). See § 28.02[2][g], above. Similarly, parents cannot agree to prospectively terminate their support obligation. In re Marriage of Goodell, 130 Wn. App. 381, 390-91, 122 P.2d 929 (2005); Marriage of Pippins, 46 Wn. App. 805.

As a general rule, the right to receive future support payments due under a decree is personal to the residential parent and terminates with the death of the residential parent. Ross v. Azcarate, 39 Wn. App. 245, 692 P.2d 897 (1984).

Comment: The Ross decision appears to conflict with RCW 26.09.170(3), which provides that the provisions for support in a decree terminate on the death of the obligor. The statute does not provide for the termination of child support when the residential parent dies, although it does provide for the termination of maintenance in that situation. RCW 26.09.170(2).

A third party who supports a minor child has a support claim based upon the family expense statute only for the "necessaries" provided to the child. Ross, 39 Wn. App. 245; RCW 26.16.205. However, this rule is statutorily modified when the state pays public assistance to a child because the child's right to support is assigned by operation of law to the state. RCW 74.20.330; see Powers v. Dep't of Soc. & Health Servs., 32 Wn. App. 310, 316-17, 648 P.2d 439 (1982).

[b] Back Support/Equitable Estoppel

The rule on agreements concerning past-due support is that the cause of action to recover past-due support belongs to the residential parent, not the child. Hartman, 100 Wn.2d 766. But see RCW 26.26B.080. The Hartman court explained this rule by stating that the recovery of past-due support operates to reimburse the custodian for money already expended. 100 Wn.2d at 768. Because the right belongs to the residential parent, equitable defenses may be asserted against that parent when it does not "work an injustice to the custodian or to the child." Id. at 769. The Hartman court approved the application of equitable estoppel to bar the mother's recovery after finding that the child had been adequately cared for by her mother and stepfather throughout the period at issue.

There is a tension between the Hartman rule and the residential parent's role as trustee for the child support. As stated in Pippins, "[c]hild support belongs to the children . . . ." Marriage of Pippins, 46 Wn. App. at 808. Under the Uniform Parentage Act, the right to recover back support may be asserted by the child. RCW 26.26B.080(1); Linda D. v. Fritz C., 38 Wn. App. 288, 687 P.2d 223, review denied, 102 Wn.2d 1024 (1984); Nettles v. Beckley, 32 Wn. App. 606, 609, 648 P.2d 508 (1982).

Query: If the cause of action lies with the child in a parentage action, why not in a dissolution action? Why does the residential parent's role as a trustee for support terminate once the support is past due?

Although the Hartman rule authorizing the waiver of back support is clear, the validity of such agreements is not free from doubt. If the obligor's failure to pay support resulted in a depressed standard of living for the children, receipt of back support by the family is likely to benefit the children. See Fuqua v. Fuqua, 88 Wn.2d 100, 558 P.2d 801 (1977). In cases in which the children have been harmed by the failure to pay support, an agreement to waive back support may be declared invalid because it conflicts with the residential parent's role as trustee.

There are other agreements that should be scrutinized:

1. What if the parents agree to waive back support because the obligor refuses to pay future support unless back support is waived?
2. What if the parents agree to waive half of the back support to ensure payment of future support on a timely and regular basis?

In such cases, if there is inadequate consideration for the agreement, a court might invalidate the waiver of back support. If the child would benefit from the payment of back support and the parents agree to waive that support, that conflict of interest would require the appointment of a guardian ad litem. Marriage of Pippins, 46 Wn. App. 805. Failure to appoint a guardian ad litem would invalidate the agreement even if it were contained in a court order. Further litigation will be required before the validity of such agreements can be predicted. For an excellent discussion of the issue, see Miller v. Miller, 29 Or. App. 723, 565 P.2d 382 (1977).

The party who asserts equitable estoppel must establish (1) an admission, statement, or act inconsistent with the claim afterward asserted; (2) action by the other party on the faith of such admission, statement, or act; and (3) injury resulting from allowing the first party to...