Peet v. Peet

Opinion

GARDNER, P. J. In this appeal we are called upon to determine whether a paying spouse is entitled to credit on arrearages for earlier overpayments of child support made to the receiving spouse where there is no evidence of fraud, agreement by the parties or communication of the purpose of the overpayments to the receiving spouse. We hold that whether the paying spouse is entitled to credit under these circumstances is a matter for the sound discretion of the trial court to be determined from the facts and circumstances of each case.

Facts

The marriage of Robert L. and Juanita R. Peet was ended in 1959 by a judgment which imposed on husband an obligation to pay to wife $45 per month per child for the support of the parties’ two minor children, Barbara and Dennis.

Husband paid all the support due from April 1959 to September 1965 plus an additional amount of $770. This figure represents an average additional payment of $5 per month per child. In September 1965, both children went to live with husband and he did not pay child support to wife while the children were in his custody.

In July 1966, Dennis returned to wife’s custody while Barbara remained with husband. From July 1966 to August 1971, husband paid all the support due for Dennis plus an additional amount of $435.

In 1969, wife married a Marine who was subsequently transferred to the East Coast. In August 1971, wife and Dennis moved to Kentucky to be near her current husband. Husband failed to make any support payments to wife for Dennis after they moved to Kentucky. Dennis joined the Army in April 1974 and it is conceded that husband’s duty to support him ceased at that time.

[977]Wife obtained a writ of execution for the $1,485 plus interest in unpaid child support for Dennis from August 1971 to April 1974. Husband moved to quash the writ. The court found that husband was entitled to credit for the amount he claimed he had overpaid, a total of $1,205, and reduced the recoverable arrearages from $1,485 to $280.

Wife appeals from the order of the court partially granting husband’s motion to quash her writ of execution for unpaid child support.

Wife urges that we should hold, as a matter of law, that, absent an agreement between the parties or fraud on the part of the spouse receiving support, a paying spouse is not entitled to any credits on arrearages for earlier overpayments of support made to the receiving spouse.