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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 89126
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I just got custody of my fourteen year old son. The history

Customer Question

I just got custody of my fourteen year old son.
The history of my case in a nutshell:
Mother and I dated in college. Mother told me she was pregnant and she thought the baby was mine. She didn't want a relationship with me. We agreed that she would leave me off the birth certificate and that I would not seek custody and in exchange she would seek no support from me.
Fast forward 13 years, I got documents from New Mexico to determine paternity, establish arrears and establish child support. The court assigned me $85,000 in arrears, not letting me take the defence of subsequent children (I have 4, and they all live with me). I objected at every turn with no result.

My son wanted to come live with me ASAP and the Mother wanted him to go with me because she wanted to move in with her boyfriend in another state. Just as custody changed hands, I filed with the New Mexico appellate court that mother had "waivered by acquiesce" in terms of the arrears they assigned me. Mother testified that we had made an agreement and that despite being advised to get support from me, that she had refused.

I am trying to find successful caselaw supporting waiver by acquiescence and also case law to support a possible equitable offset as I now have my son. This mother wants me to pay her $770 a month even though I have my son and four other kids.

My goal is to prove that she waivered by acquiesce, barring that I need some other options or my family is going to financially go down in flames
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is Ely, and welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry to hear the situation you find yourself in.

I am trying to find successful caselaw supporting waiver by acquiescence and also case law to support a possible equitable offset as I now have my son. This mother wants me to pay her $770 a month even though I have my son and four other kids.

Waiver by acquiescence is also often known as estoppel by acquiescence. I hope the following helps:

'This Court has recognized two kinds of common-law waiver in the child support context. ... Under certain circumstances, a second type of waiver sounding in equity and based on acquiescence, may arise "where the evidence shows the existence of an agreement ... supported by consideration, and where the agreement has been acquiesced in over a period of time under circumstances giving rise to estoppel." Id. at 568, 874 P.2d at 29 (citing Arnold v. Krewson, 834 S.W.2d 229, 232 (Mo.Ct.App.1992)). Sisneroz v. Polanco, 975 P. 2d 392 - NM: Court of Appeals 1999.

"At its core, the defense of acquiescence is based on estoppel. Waiver by acquiescence requires proof of an express or implied agreement, and a trial court should not infer acquiescence from doubtful or ambiguous acts." Sisneroz v. Polanco, 975 P. 2d 392 - NM: Court of Appeals 1999 citing McCurry v. McCurry, 874 P. 2d 25 - NM: Court of Appeals 1994.

"At its core, the defense of acquiescence is based on estoppel. Waiver by acquiescence requires proof of an express or implied agreement, and a trial court should not infer acquiescence from doubtful or ambiguous acts." Sisneroz v. Polanco, 975 P. 2d 392 - NM: Court of Appeals 1999.

The first case is directly on point, dealing with child support and the parent's waiver by acquiescence.

Best of luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.
Those case laws are exactly what we are citing in our appeal. I am wondering though about ideas beyond acquiesce. I have heard that in other states that often times arrears can be offset because I now have custody and it is considered by the courts that children 12 or older are more expensive to raise. I am looking for case law where people have been successful getting an offset in a change of custody.

I am also looking for case law when a state figured arrearages incorrectly due to subsequent children.

I am just trying to do the best for all of my children. I find it hard to believe that the court wants me to pay out a ton of money to my son's mother who doesn't have custody anymore. I can't think that it's in the best interest of my son financially
Expert:  Ely replied 1 year ago.
M,

Those case laws are exactly what we are citing in our appeal.

They seem to be the only ones in state and federal NM courts that fall on point. Kudos on well-done research.

I am wondering though about ideas beyond acquiesce. I have heard that in other states that often times arrears can be offset because I now have custody and it is considered by the courts that children 12 or older are more expensive to raise. I am looking for case law where people have been successful getting an offset in a change of custody.

This is not true - at least in NM. Under NM 40-4-11.1, child support is based off a specific formula using objective figures. There is no leeway in accordance to the age of the child. Now, estoppel by acquiescence may possibly be used, but that is about it. There is no other real option, I am afraid.

I am also looking for case law when a state figured arrearages incorrectly due to subsequent children.

We can expand that to simply the Court figuring child support incorrectly, which happens. However, one does not need caselaw for this. Please understand that caselaw only comes into play when there is a nuance that is not covered by the statute. Think of the statute as a "brick wall" of law, but it has "holes" (nuances). The Courts "fill in" these holes with case precedent which help to "plug in" the holes. The case law is the "mortar."

If there is a mistake due to calculation, one needs no case law to amend it, but simply to file for a modification based on that mistake.

I hope this helps and clarifies.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.

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