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Guri v. Guri

Supreme Court of New Hampshire Hillsborough
Jul 2, 1982
122 N.H. 552 (N.H. 1982)

Summary

stating that plaintiff was not estopped from alleging a breach of the defendant's obligations under the divorce decree despite her silent acceptance of partial payments, provided that she commenced suit for sums alleged to be due within the statute of limitations

Summary of this case from In the Matter of Giacomini Giacomini

Opinion

No. 80-458

Decided July 2, 1982

1. Contracts — Modification — Mutual Modification Contractual obligations can be modified by either an express or an implied mutual agreement between the parties; whether there was such an agreement is a question of fact to be determined by the trial court, and the supreme court will not disturb its determination if there is sufficient evidence in the record to support it.

2. Accord and Satisfaction — Elements — Generally Acceptance of a sum less than is due does not, as a matter of law, constitute satisfaction in full, and the trial court must determine on the facts of each case whether such acceptance constituted satisfaction in full.

3. Estoppel — Elements — Generally The elements of estoppel are: a misrepresentation of a material fact, made with the intent that the other party act upon it; and actual reliance by the other party to his detriment.

4. Estoppel — Estoppel by Silence — Elements Under certain circumstances, an estoppel may arise from silence or inaction, as opposed to an actual misrepresentation, but this form of estoppel is limited to situations where the silent party has knowledge and a duty to make a disclosure.

5. Divorce — Alimony — Arrearages In an action brought by a former wife to recover alimony and child-support arrearages, where the parties were divorced in Connecticut in 1973, and the former husband, a resident of New Hampshire, had never paid arrearages due for alimony, child support, or the legal fees, and paid only a portion of the alimony and child support, the trial court correctly decided that the former wife had no obligation to affirmatively allege a breach of the former husband's obligations under the divorce decree, provided that she commenced suit for sums alleged to be due within the period of the statute of limitations, and that her silent acceptance of partial payments did not estop her from bringing the action for arrearages, where the trial court found no express agreement between the parties to modify the obligations of the divorce decree, and also found that the former wife's silence did not indicate her implied agreement to forgive the obligation to pay full support and alimony.

6. Parent and Child — Support — Credit for Payments Directly to Child The general rule is that no support credits are allowed for payments made by the non-custodial supporting parent directly to children; the rationale is that the custodial parent should have the discretion to decide how to allocate support payments for the basic needs of the children, and the noncustodial supporting parent cannot unilaterally inhibit the exercise of that discretion.

7. Parent and Child — Support — Credit for Payments Directly to Child The trial court has the discretion to credit payments made by a noncustodial supporting parent directly to children in two situations: where the custodial parent does not allocate support payments appropriately for the basic needs of the children; and where the custodial parent consents to direct payment to the children.

8. Parent and Child — Support — Credit for Payments Directly to Child In an action brought by a former wife to recover alimony and child-support arrearages, the trial court's decision denying the former husband credits against his support arrearages was upheld where the former husband sought credit for certain payments made directly to the children for "extras" such as a trip to France, college application fees and orthodontist bills, and where the trial court found that neither of the two exceptions to the general rule denying credit for such direct payment applied in the case.

9. Appeal and Error — Scope of Review — Deference to Judgment of Trial Court Where trial court denied former husband's motion to reconsider divorce decree because it was not timely filed under superior court rule governing motions to set aside a verdict, supreme court would not consider former husband's further claim that the motion was timely filed under the superior court rule governing entry of final judgment where it was clear that the trial court considered the substance of the motion and alternatively denied it on the merits. Superior Ct. R. 73, 74.

Cullity Kelley, of Manchester (John C. Boeckeler on the brief and orally), for the plaintiff.

Joseph C. Krolikowski, of Nashua, by brief and orally, for the defendant.


This domestic relations case involves an action to recover alimony and child-support arrearages and a cross-motion for reconsideration of a divorce decree. The issues raised on this appeal from the decree of the Superior Court (Souter, J.) are: whether the plaintiff's acceptance of partial support and alimony payments from the defendant amounts to an implied agreement to reduce the payments ordered in the parties' divorce decree, and whether the plaintiff is estopped from now claiming the balance owed by the defendant under the divorce decree; whether payments made directly to the children for "extras" (such as a trip to France, college application fees and orthodontist bills) should be credited towards the defendant's support arrearages; and whether the trial court properly denied the defendant's cross-motion for reconsideration of the divorce decree.

The parties were divorced in Connecticut in 1973. Custody of their three minor children was given to the plaintiff. The defendant was ordered to pay $66 weekly support for each child, $30 weekly alimony, $1,500 legal fees and $1,609.88 arrearages. The defendant never paid either the arrearages or the legal fees and paid only a portion of the alimony and child support. The plaintiff commenced the present action in New Hampshire, where the defendant had established residency, for recovery of legal fees, arrearages due as of 1973, and the balance of support and alimony arrearages due after the decree in November 1978. The defendant filed a cross-motion for reconsideration of the divorce decree.

On the issues presented in the plaintiff's action for arrearages, the Trial Court (Souter, J.) ruled in substance as follows:

1. The arrearages and the legal fees ordered by the Connecticut divorce decree are due and owing.

2. The payments for "extras" made directly to the children are not to be credited towards the defendant's support obligations.

3. The plaintiff has not, by her acceptance of partial support and alimony payments, accepted them in full satisfaction of the defendant's obligations under the Connecticut divorce decree and is thus still entitled to sue for the balance.

4. According to the applicable Connecticut statute interest is payable from the dates and to the extent of the defaults at 6% simple interest; and, under RSA 524:1-a, interest at 6% is to be paid, from the date of the suit, on the sums then due and on those later falling due.

The defendant challenges rulings 2 and 3 on appeal. We affirm.

[1, 2] The first issue we consider is whether the plaintiff's acceptance of reduced payments constituted a consensual modification of the support obligations imposed by the divorce decree. Contractual obligations can be modified by either an express or an implied mutual agreement between the parties. See Trombly v. Blue Cross/Blue Shield, 120 N.H. 764, 766-67, 423 A.2d 980, 982 (1980). Whether there was such an agreement between the parties is a question of fact to be determined by the trial court, and we will not disturb its determination if there is sufficient evidence in the record to support it. See Salem Engineering v. Londonderry, 122 N.H. 379, 385, 445 A.2d 1091, 1094 (1982). In New Hampshire, the rule is that acceptance of a sum less than is due does not, as a matter of law, constitute satisfaction in full. The trial court must determine on the facts of each case whether such acceptance constituted satisfaction in full. Corey Steeplejacks Co. v. Cray, 106 N.H. 126, 129-30, 206 A.2d 617, 619-20 (1965). The trial court in this case found no express agreement between the parties to modify the obligations of the divorce decree. In addition, it found that the plaintiff's silence did not indicate her implied agreement to forgive the obligation to pay full support and alimony under the divorce decree.

[3-5] Connected with the issue of whether there was an implied agreement between the parties is the question whether the plaintiff's long-term silence estops her from claiming the balance due on support and alimony payments. The elements of estoppel are: a misrepresentation of a material fact, made with the intent that the other party act upon it; and actual reliance by the other party to his detriment. Appeal of Cloutier Lumber Co., 121 N.H. 420, 422, 431 A.2d 112, 113 (1981); Storms v. U.S. Fidelity Guar. Co., 118 N.H. 427, 432, 388 A.2d 578, 581 (1978). Under certain circumstances, an estoppel may arise from silence or inaction, as opposed to an actual misrepresentation. See Town of Nottingham v. Lee Homes, Inc., 118 N.H. 438, 442, 388 A.2d 940, 942 (1978). This form of estoppel, however, is limited to situations where the silent party has knowledge and a duty to make a disclosure. Concrete Constructors, Inc. v. Harry Shapiro Sons, Inc., 121 N.H. 888, 893, 436 A.2d 77, 80 (1981). The trial court therefore correctly decided that the plaintiff had no obligation to affirmatively allege a breach of the defendant's obligations under the divorce decree, provided that she commenced suit for sums alleged to be due within the period of the statute of limitations, and that her silent acceptance of partial payments did not estop her from bringing the action for arrearages.

We next consider whether the defendant should have been allowed a credit towards support arrearages for direct payments he has made to his children.

The general rule is that no credits are allowed for payments made directly to children. McCrady v. Mahon, 119 N.H. 247, 248, 400 A.2d 1173, 1174 (1979). The reason for this rule is that the custodial parent should have the discretion to decide how to allocate support payments for the basic needs of the children. See id., 400 A.2d at 1174. The non-custodial supporting parent cannot unilaterally inhibit the exercise of that discretion.

[7, 8] There are two exceptions to this general rule: where the custodial parent does not allocate support payments appropriately for the basic needs of the children; and where the custodial parent consents to direct payment to the children. McCrady v. Mahon, 119 N.H. at 248, 400 A.2d at 1174. In both instances, the trial court has the discretion to credit the direct payments toward support arrearages. See Griffin v. Avery, 120 N.H. 783, 787-88, 424 A.2d 175, 177 (1980). The trial court found that neither of the two exceptions applied in this case. Because its findings are supported by the evidence, we uphold the decision of the trial court denying the defendant credits against his support arrearages. See Salem Engineering v. Londonderry, 122 N.H. at 385, 445 A.2d at 1094.

Finally, the defendant argues that his motion to reconsider the divorce decree was improperly denied by the trial court because it was not timely filed under Superior Court Rule 73, which requires that motions to set aside a verdict be filed within seven days of rendition of a verdict. We need not consider this argument or the defendant's further claim that his motion was timely filed under Superior Court Rule 74, because it is clear that the trial court, in fact, considered the substance of the motion and alternatively denied it on the merits, reaffirming its earlier findings of fact and rulings of law.

Affirmed.

All concurred.


Summaries of

Guri v. Guri

Supreme Court of New Hampshire Hillsborough
Jul 2, 1982
122 N.H. 552 (N.H. 1982)

stating that plaintiff was not estopped from alleging a breach of the defendant's obligations under the divorce decree despite her silent acceptance of partial payments, provided that she commenced suit for sums alleged to be due within the statute of limitations

Summary of this case from In the Matter of Giacomini Giacomini

noting that obligor parent is allowed credit for payment to child when obligee parent consents to such payments

Summary of this case from Smith v. Smith

noting that obligor parent is allowed credit for payment to child when obligee parent consents to such payments

Summary of this case from Smith v. Smith
Case details for

Guri v. Guri

Case Details

Full title:BARBARA L. GURI (CUSHING) v. CHARLES GURI

Court:Supreme Court of New Hampshire Hillsborough

Date published: Jul 2, 1982

Citations

122 N.H. 552 (N.H. 1982)
448 A.2d 370

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