PARKINSON VS. PARKINSON (CHILD SUPPORT)

Statutes cited

Key holdings

Practitioner summary

The court affirmed the denial of a motion to reduce child support arrearages to judgment based on implied waiver. Entry of judgment for support arrearages under NRS 125.180 is a matter within the district court's discretion. Libro v. Walls, 103 Nev. 540, 541-42, 746 P.2d 632, 633 (1987); Reed v. Reed, 88 Nev. 329, 331, 497 P.2d 896, 897 (1972). Aligning with the majority of jurisdictions, the court held that equitable defenses such as estoppel or waiver may be asserted by the obligor in a proceeding to enforce or modify a child support order or to reduce arrearages to judgment. A valid waiver requires an intentional relinquishment of a known right, which may be express or implied 'from conduct which evidences an intention to waive a right, or by conduct which is inconsistent with any other intention than to waive a right.' Mahban v. MGM Grand Hotels, Inc., 100 Nev. 593, 596, 691 P.2d 421, 423 (1984). Whether a waiver occurred is a question for the trier of fact. The court cabined the defense: waiver may not preclude recovery of a child support obligation if it resulted from fraud or duress, or if its application would be injurious to the child. Substantial evidence supported the finding of implied waiver: over approximately five and one-half years the custodial parent never demanded payment or pursued her legal right, told the obligor to stay away and that she wanted no contact, corroborated by the parties' real estate agent. Because the child had reached majority (no injury), and there was no fraud or duress, the district court did not abuse its discretion. A footnote clarified that, to the extent Perri v. Gubler, 105 Nev. 687, 782 P.2d 1312 (1989), might be read to require a showing of 'changed circumstances' to obtain the statutory formula entitlement, the court disavowed that reading in light of the clear statutory right to modification under the formula.

In plain language

Debra and Michael Parkinson divorced in 1982. Michael had adopted Debra's son Gary, and the decree ordered Michael to pay Debra $200 per month in child support until Gary reached adulthood. In January 1983, Michael stopped paying. More than five years later - about two weeks after Gary turned 18 - Debra went to court asking that Michael's 64 months of missed payments ($12,800 plus interest) be turned into a formal judgment she could collect. Michael responded that Debra had effectively given up her right to the support: through the years, she had told him to stay away from her and Gary and had never once asked him for any money. The district court agreed with Michael, finding that Debra had 'impliedly waived' her right to child support, and it refused to enter the arrearages as a judgment. Debra appealed. The Nevada Supreme Court affirmed. It held that deciding whether to reduce support arrears to judgment is within the trial court's discretion, and, aligning with most other states, that a paying parent may raise fairness defenses like waiver or estoppel in such a proceeding. A waiver means intentionally giving up a known right, and it can be shown by conduct. Importantly, the court said a waiver cannot be used to bar child support if it was obtained by fraud or coercion, or if enforcing it would harm the child. Here, the evidence supported an implied waiver: for about five and a half years Debra never demanded payment, told Michael to stay away, and made clear she wanted no contact - statements corroborated by the couple's real estate agent. Because Gary was now an adult (so no child would be harmed), and there was no fraud or coercion, the trial court did not abuse its discretion in denying the motion.