Payment of mortgage in lieu of support – doctrine of estoppel by acquiescense – published opinion from Ky Court of Appeals


Parties entered into a marital settlement agreement requiring husband to make payments for maintenance and child support. Instead, husband paid wife’s mortgage which was in excess of his child support and maintenance obligations. Wife objected but did not request a hearing on the issue for two years, which was more than a year after payments stopped. The family court, applying the doctrine of latches, found that Wife had “failed to consistently pursue her claim” and therefore no arrearages were due.

The Court of Appeals affirms the family court holding that the family court properly applied the doctrine of latches. The court notes that the doctrine of estoppel by acquiescence which “is applied to transactions in which it would be unconscionable to permit a person to maintain a position which is inconsistent with one in which he has previously acquiesced” is a better fit for this fact pattern, but the outcome remains the same. Wife could not benefit from Husband’s higher mortgage payments and then later pursue any action against him for collection of the child support and maintenance.

Digested by Elizabeth M. Howell

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