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January 5, 1990


Appeal from the Superior Court of the District of Columbia

Before Steadman, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: This appeal arises primarily from a judgment for breach of child support obligations under a marital separation and property settlement agreement. The Superior Court Family Division found that appellant (Mr. Nolan) had breached the contract by failing to tender certain child support payments to appellee (Mrs. Nolan), and entered judgment for $30,566.84 in arrearage. Mr. Nolan challenges the trial court's rejection of his contractual and equitable defenses as contrary to the evidence. He also assigns as error the Judge's exclusion from evidence, as a discovery sanction, of a letter which Mr. Nolan had failed to produce before trial and refusal to allow impeachment of Mrs. Nolan with that letter. We reject appellant's first contention, but we conclude that the record must be remanded for reconsideration by the trial court of its decision to exclude the letter, whose contents the Judge declined to examine. *fn1


Martin F. and Margaret C. Nolan were married in New York in 1962. During the marriage, they adopted three children, David, Ellen, and Peter. The Nolans began living apart voluntarily and continuously in June 1973. On November 22, 1974, they entered a comprehensive "Separation and Property Settlement Agreement," and on November 25, 1974, the Superior Court granted them a decree of absolute divorce. As the parties provided in the contract, the court did not incorporate or merge the separation agreement into the divorce decree.

The separation agreement provided that Mrs. Nolan was to have custody of the three children, and that Mr. Nolan was to provide child support as follows:

The Husband shall pay to the Wife the sum of Two Hundred Fifty Dollars ($250) per month per child, without deduction, for the support and maintenance of the children, which payments shall commence on December 1, 1974, and shall continue on the first day of each month thereafter, as to each child, until such child attains the age of twenty-one (21) years, dies, or becomes emancipated, whichever occurs first.

With regard to college expenses, the separation agreement provided that:

The Husband affirms his desire for the children to obtain suitable higher educations, and he agrees to pay for or contribute to college educations for each child to the extent his financial circumstances permit, subject to his prior approval of the selection of a school, which approval shall not be withheld unreasonably.

Further providing for the children's education, the parties agreed that if Mrs. Nolan sold the marital home, *fn2 which she held as tenant in common with Mr. Nolan after the divorce, or purchased his interest therein, the net equity proceeds of the sale of his interest wore to be "held . . . in an interest bearing account and shall constitute a college education fund for the minor children of the parties." The agreement provided that any modification, waiver or amendment of the contract was ineffective unless in writing.

Mr. Nolan made child support payments to Mrs. Nolan as provided from November 22, 1974 through August 1983. In September 1983, David Nolan joined his father, who had relocated to Boston, to complete his senior year of high school at Boston College High School. The Nolans apparently agreed that Mr. Nolan would not be required to send monthly payments for David's support to Mrs. Nolan because Mr. Nolan would bear the son's tuition and living expenses during that school year. A December 13, 1983 letter from Mrs. Nolan's attorney to Mr. Nolan's attorney acknowledged that Mrs. Nolan did not object to this arrangement because David was residing with Mr. Nolan during that time. The letter added, however, that "we assume it is understood that the full monthly payments will be resumed once David is no longer residing with his father."

On May 28, 1984, at the Conclusion of the 1984 school year, David returned to Washington to join his mother. In a June 15, 1984 letter to Mr. Nolan's attorney, Mrs. Nolan's attorney pointed out that Mr. Nolan had deducted David's child support from the June payment to Mrs. Nolan, and demanded that he resume payment of the full amount effective June 1, 1984, because David had since returned to Washington. The letter noted that the separation agreement did not contemplate such offsets in child support payments, but also recognized that Mrs. Nolan had not protested such reductions while David was living with his father. In late August 1984, Mr. Nolan paid Mrs. Nolan an amount representing support for David for the months of June, July and August 1984.

In the early Fall of 1984, David and the Nolans' daughter Ellen left Washington to attend college in Massachusetts. From the time the children began attending college in September 1984 until September 1987, Mr. Nolan paid in full the tuition and living expenses for both and gave them spending money, except for a January 1987 payment for David's tuition and four payments in 1987 for his meals and housing, which were made by Mrs. Nolan. In addition, Mr. Nolan sent money directly to David during the summer months in 1985 and 1986, and to Ellen in the summers of 1985, 1986 and 1987. Mr. Nolan made no payments to Mrs. Nolan for David's support from September 1984 to September 1986. *fn3 He made only one payment, for December 1986, to Mrs. Nolan for Ellen's support for the period covering September 1984 through September 1987.

Mrs. Nolan's attorney wrote to Mr. Nolan's attorney on June 13, 1985, demanding that Mr. Nolan pay the amounts due for David's and Ellen's support for June, July and August 1985 directly to Mrs. Nolan, but the letter was silent on Mr. Nolan's failure to tender the amounts due for the months the children were attending college. *fn4 The June 13, 1985 letter stated that Mr. Nolan had agreed to make the summer payments, but wanted to make them directly to the children, and that this arrangement was contrary to the separation agreement between the parties. Mr. Nolan's position is reflected in a letter to Mrs. Nolan dated July 10, 1985, in which he stated:

The tuition costs for David and Ellen amount to $20,000 annually. Since I try to provide some money for them during the school year and since I bear these tuition costs alone, you may see why I think full child support for their summers is a bit much.

All of this comes from a finite source. It is good that in a year's time or so, the children's educational needs will be provided for in a trust fund from the sale of the house. From what I understand of Washington real estate prices, the sale ought to be helpful in that regard. I hope you agree.

Mrs. Nolan testified at trial that she wrote several letters to Mr. Nolan demanding payment of child support as provided in the agreement, but only one, offered by the husband, was in evidence at trial. This ...

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