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Kerrigan v. Kerrigan

June 20, 1994

JAMES P. KERRIGAN, APPELLANT
v.
WILHELMINA K. KERRIGAN, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Ricardo M. Urbina, Trial Judge)

Before Ferren, Terry and Farrell, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: This is an appeal from a judgment awarding Mrs. Wilhelmina Kerrigan $56,000 for child support arrearages under a 1978 divorce decree. Her ex-husband, Dr. James Kerrigan, challenges this award on two grounds. First, he maintains that the trial court erred in refusing to admit into evidence a letter from Mrs. Kerrigan's counsel as proof that the parties had modified the terms of the divorce decree. We reject this argument. Dr. Kerrigan's second contention, however, has merit. He argues that the court should have considered his defense that Mrs. Kerrigan's claim was barred by laches. We agree and remand for further proceedings.

I

In February 1978 the trial court entered a judgment of absolute divorce, which merged and incorporated a prior separation agreement between Dr. and Mrs. Kerrigan. The divorce decree provided for initial payment of $2,000 per month for five months in support for the Kerrigans' daughter, followed by a reduction in payments to $1,500 per month. The effective date of the decree was March 3, 1978.

In November 1984, when their daughter reached the age of twenty-one, Dr. Kerrigan, without notice to either Mrs. Kerrigan or the court, reduced his monthly payment to $1,000 per month. Mrs. Kerrigan did not object to this reduction. In January 1993, because of advancing age and allegedly "adverse financial circumstances," Dr. Kerrigan terminated his monthly payments completely.

On August 18, 1992, almost eight years after the initial reduction in Dr. Kerrigan's support payments, Mrs. Kerrigan filed a motion asking that he be held in contempt and seeking a money judgment for accumulated arrearages. Dr. Kerrigan asserted in response that Mrs. Kerrigan had consented to a modification of the divorce decree, which he now formally requested the court to make, and that her claim for arrearages was barred by laches.

At a hearing on Mrs. Kerrigan's motion, the trial Judge refused to consider any evidence of modification. He ruled that because the divorce decree was an order of the court, the parties had no power to modify it without the consent of the court, even though the separation agreement, which was merged into the divorce decree, had said that changes could be made "by agreement or a court order." After the separation agreement was incorporated and merged into the court's judgment, the court said, it "lost its character as an independent contract and instead took on a personality as a court order, enforceable by the court as an order of the court. . . ."

If parties tried to negotiate something that was different from an agreement or contract . . . that may in fact happen with fresh consideration and a new meeting of the minds.

But, however, the parties don't have authority to do that when it is a court order. In fact, no matter . . . how much they act in good faith, if parties decide to operate contrary to the order of the court without seeking modification first, then they operate at risk of being found in contempt of court.

The court also refused to consider any testimony in support of Dr. Kerrigan's claim of laches. It ruled that because each overdue support payment had ripened into a money judgment when it became due and payable, *fn1 they were "not at this time or any previous time . . . subject to the defense of laches."

II

At the hearing below, Dr. Kerrigan sought to admit into evidence a letter written by Mrs. Kerrigan's attorney as proof of an agreement to modify the amount of his support payments. The attorney's letter allegedly assured him that if there were to be a change of circumstances, such as a change in his financial condition, he and Mrs. Kerrigan could work out a modification of the support payments without having to go to court. Dr. Kerrigan claimed that he relied on this assurance and Mrs. Kerrigan's implied consent when he did, in fact, reduce his support payments.

Dr. Kerrigan's effort to introduce the attorney's letter into evidence ignores the express terms of the separation agreement that he and Mrs. Kerrigan reached on January 11, 1978. This separation agreement, which was later merged ...


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