Judicial estoppel is a doctrine that has been mentioned in a number of recent Supreme Court opinions. In essence, judicial estoppel prevents a party from making inconsistent arguments to the same court in different proceedings. To apply, it must be shown that a party's present position is inconsistent with their earlier position, the party succeeded in persuading the court to adopt their former position and that it would be unfair to allow the party to maintain their new, inconsistent position.

In the recent case of In re: Carr and Edmond (decided December 6, 2007), the New Hampshire Supreme Court indicated that judicial estoppel could not be used in an action to modify child support. In Carr , the parties were divorced in 2000. In their permanent stipulation, the mother was awarded sole legal and physical custody of the two minor children. The parties agreed that “it was in the best interest of the children that the father would voluntarily relinquish his parental rights”. The mother also agreed to assume sole financial responsibility for the children and the father would not be obligated to pay child support. The Superior Court approved the stipulation and ordered that the father should file an action to terminate his parental rights. The Superior Court also ordered the mother to file a motion to modify the child support obligation, if the father's parental rights were not terminated.

The father was unsuccessful in terminating his parental rights over his children. However, the mother did not file a motion seeking child support until 6 years later. At that time, the mother asked the Superior Court to order the father to pay child support. The father argued to the trial court that the mother was judicially estopped from seeking child support based upon the language of the permanent stipulation.

The trial court denied the father's request that the mother be estopped and the father appealed to the Supreme Court. The Supreme Court held that the doctrine of judicial estoppel does not apply in this situation. Under New Hampshire law, a party is free to seek a modification of child support every three years from the date of the support order, or earlier, if there is a substantial change of circumstances. In reviewing a request to modify a child support order, the trial court must recalculate the parties' support obligation based upon their current incomes and then determine whether special circumstances require a deviation from the child support guidelines. The Supreme Court concluded that the prior agreement was irrelevant for the purposes of recalculating child support on a petition to modify.

Andrew J. Piela is an associate attorney at Hamblett & Kerrigan, P.A. His legal practice includes civil litigation, family law, land use litigation and probate. You can reach Attorney Piela by e-mail at: apiela@hamker.com

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