Generally, when a parent with a child support obligation falls behind in support, the parent owed the support can seek to recover through a contempt proceeding in the family court or can use the resources of the Division of Child Support Enforcement (DCSE). Sometimes, a parent cannot afford to pay current support obligations because of new financial realities. In those situations, the parent owing support needs to file a motion to modify in the family court or request an administrative review through DCSE.
Sometimes parents owing support simply let time pass and accrue a large debt, one that could subject them to criminal prosecution for felony nonsupport. When a parent fails to act quickly, can that parent still find a remedy through abatement?
The Western District this week had a chance to address this specific issue in Family Support Division v. Dillow. Mother filed a paternity action in 1995, and the court entered a default judgment against father, ordering him to pay $570.00 per month in child support. Father claimed to not know of the support order, fell in arrears and was arrested on criminal nonsupport charges in 2001. Father was placed on probation and he began to make payments, but again fell behind and had his probation revoked and served a year in prison. After his release, father began making payments and DCSE requested the amount lowered to $206.00 per month. In 2014, father sought to have his support obligations, including arrearages, abated. The trial court agreed with him and set his arrearage and present obligation at zero, based on mother not allowing father to have visitation with the child.
Abatement is a statutory creation, specifically Section 452.340.7, and it allows abatement where a parent receiving support denies custody or visitation as ordered by the court to the parent paying support. In Dillow, father raised abatement but also listed additional grounds including his incarceration as sufficient punishment and had no knowledge of the whereabouts of his child. The
Western District reversed the trial court. First, the appellate court noted that the abatement statute applies only to a judgment of dissolution or legal separation or modification thereof, not a paternity action. But even assuming it would apply in that context, the judgment of paternity did not authorize any visitation with father. Consequently, mother could not legally be deemed to deny father something that did not exist, namely, a right to visit the child. The Western District also rejected the other reasons raised by father, specifically noting that child support is not “punishment,” and that time served for felony nonsupport does not abate any support obligation.
Dillow teaches an important lesson: the moment a parent with a support obligation believes that he or she cannot afford that obligation or that a legal error was made with regard to that obligation, that parent must petition the court immediately for relief. Any delays in bringing changes in circumstances to the attention of the court will result in no relief to that parent through abatement. While the court retains the right to hear an equitable challenge to an arrearage, the ability to get relief under those circumstances are not often granted.
If you have questions about child support abatement, contact us – we can help.