Estoppel in Family Law Cases

by Luis E. Insignares, Esq.

In the immediately prior edition of this column we looked at Section 61.011, Florida Statutes (2013) and noted that although the statute contains but seven words, the provision could provide a powerful “secret weapon” applicable to any number of factual scenarios. Those seven words are: “Proceedings under this chapter are in chancery.”

As a result of Section 61.011, equitable claims and defenses are applicable to family law proceedings brought under Chapter 61, which include divorce, child custody and time- sharing, and child and spousal support cases. In the prior installment, we noted the dozen or so equitable “maxims” or general rules (a number of which overlap or are slightly more specific iterations of each other) which thus become applicable to Chapter 61 proceedings. And of course the primary statutory remedy for determining the property rights of divorcing parties is called “equitable distribution” for a reason.

The equitable concept of estoppel is also applicable, and is extremely broad. “The doctrine of estoppel prevents a party from making an argument or asserting a right in court that is inconsistent with facts or legal conclusions that the party has previously represented to be true.” Steven Scott Stephens 23 Fla. Practice: Florida Family Law § 5:15 (online; database updated June 2013). In Blanchard v. Blanchard, 844 So.2d 805 (Fla. 4th DCA 2003), for example, the former husband sued to have his alimony duty ended, arguing that the alimony

statute was unconstitutional. The appellate court affirmed the trial court’s denial of the claim, holding that, having agreed to pay alimony in a contract which also divided the parties’ property, the appellant was estopped from later asserting that the alimony provision was unconstitutional.

Similarly, in a proceeding on a divorced wife’s motion to have her ex-husband held in contempt for nonpayment of alimony, the former husband was estopped from questioning the validity of an order (which had vacated a prior order dismissing the petition for modification of alimony), because the former husband had actively sought the vacating order, and had benefitted from it by virtue of the fact that such order also reduced alimony payments. See, Kilmark v. Kilmark, 366 So.2d 794 (Fla. 2d DCA 1978).

It should be noted that a potentially inequitable application of estoppel in family law matters has been specifically prohibited by, of all things, a rule of appellate procedure. Rule 9.600(c)(2) states “The receipt, payment, or transfer of funds or property under an order in a family law matter shall not prejudice the rights of appeal of any party.” Thus a payee spouse may receive alimony or child support, and need not “do without” (i.e., starve), during the pendency of an appeal, without being held estopped to question the validity or amount of the award.

Perhaps one of the most common applications of estoppel in family law comes in parentage determinations (despite that

same are often proceedings under the paternity chapter rather than Chapter 61). In paternity and support cases, a parent or quasi-parent may be estopped to deny a child’s parentage as a result of his or her actions affecting the child. See, e.g., C.C.A. v. J.M.A., 744 So.2d 515 (Fla. 2d DCA 1999) review granted, 762

So.2d 916 (Fla. 2000) and, review dismissed as improvidently granted by J.M.A. v. C.C.A., 803 So.2d 705 (Fla. 2001)(legal father of child born during marriage was equitably estopped from denying child’s parentage after holding child out as his own). Similarly, in S.W.T. v. C.A.P., 575 So.2d 806 (Fla. 4th DCA 1991), the appellate court concluded that a mother’s actions holding her child out as her husband’s biological child estop her from seeking evidence that another man is the child’s biological father.

Although the above cases arose in scenarios where the parents (or purported parents) were married, the concept applies within or without coverture. See, e.g., Klingensmith v. Kuhn, No. 12237 C.D. 2005, 80 Pa. D. & C. 4th 135, 2006 WL 4405782 (Pa. Ct. Com. Pl. August 10, 2006)(third party estopped to compel paternity testing after three years when unwed couple assumed parental responsibility through putative father’s acknowledgement of paternity.);Diana E. v. Angel M., 799 N.Y.S.2d 484, 20 A.D. 3d 370 (N.Y. App. Div.2005)(unwed putative father who listed himself as child’s father on birth certificate and lived together with mother and child as family estopped from seeking to disprove paternity; fact of “no legal relationship to child” resulting from not marrying mother did not preclude estoppel);Division of Child Support Enforcement/G.D. v. B.M.C., No. CK98-03817, 04-05228, 2005 WL 3560874 (Del. Fam. Ct. April 14, 2005) (putative father of out-of-wedlock child estopped from denying paternity and undergoing paternity test where he had placed his name on birth certificate and acknowledged child as his).

If your opponent has changed positions or made misrepresentations regarding a dispute, consider whether estoppel might apply

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