In Re the Marriage of Trainotti

Opinion

COMPTON, J.

Appellant D. Michael Trainotti appeals from a postdissolution order directing him to pay respondent Roberta J. Trainotti $4,500 in accrued child support. We reverse and remand.

In June 1984, the court dissolved the marriage of the parties. Respondent was awarded custody of their minor son, Christopher, and appellant was ordered to pay $450 per month in child support. Some three years later, in August 1987, the parties purportedly agreed that appellant would assume sole physical custody of Christopher and cease making monthly child support payments. Although appellant attempted to have respondent stipulate to entry of such an order on several occasions, she steadfastly refused. In any event, Christopher began residing with his father on or about August 24, 1987, and appellant thereafter discontinued making support payments.

In October 1987, appellant noticed a hearing on an order to show cause for modification of the original child custody, visitation and support orders.

[1074]

That matter was taken off calendar, however, after Christopher was admitted to a six-week residential drug rehabilitation program. Upon his release in November 1987, both parents apparently agreed that he should resume living with appellant. Two months later, in January 1988, appellant, through counsel, again attempted to have respondent execute a written stipulation granting him sole physical custody and eliminating the support obligation, but to no avail.

In March 1988, respondent initiated an action seeking to have appellant held in contempt for his failure to pay child support in accordance with the 1984 order. She also sought to have the court increase the amount of such support from $450 to $1,000 per month. Prior to commencement of the hearing, however, respondent agreed to withdraw the contempt action with prejudice and stipulated to entry of an order granting appellant sole physical custody of Christopher. Unable to reach accommodation on the issue of support arrearage totalling $4,500, the parties submitted the matter to the trial court on a stipulated set of facts.

Finding that there had been no modification of the original support order, the court concluded that it was without jurisdiction to offset or discharge the accrued payments for the period the child was residing with appellant. The court thereafter ordered payment of the arrearage at the rate of $500 per month. This appeal follows.