Colorado’s second-highest court ruled last week that a man cannot rely on his ex-wife’s one-time statement, “you don’t have to pay me child support,” to avoid paying $233,000 over the next 16 years.
A three-judge panel of the Court of Appeals considered for the first time whether James Gallo could invoke the concept of “promissory estoppel” – a claim that someone can assert when they rely on a promise to their detriment and suffer damage as a result. In Gallo’s case, the alleged promise was his ex-wife’s statement in a 2008 email in which she exempted him from paying child support because of his illness and unemployment.
The Appellate Body concluded that a parent could not rely on his or her former spouse’s promise to defend against the payment of child support.
“The General Assembly has enacted child support guidelines to ensure that parents contribute appropriately to a child’s expenses and has given courts – not parents – the sole authority to modify child support orders,” Judge Timothy J. Schutz wrote in his August 8 opinion.
Shortly after Gallo’s divorce, he began to experience health problems and lost his job. In March 2008, his ex-wife sent an email about the court-ordered $1,250 in child support that Gallo had to pay each month.
“I’ve thought about it and because you are sick and not working, you don’t have to pay me child support,” she wrote. “Help where you can. We will work this out. I don’t want to get lawyers involved as we both paid enough in the divorce.”
For the next decade and a half, Gallo did not pay child support. In March 2023, his ex-wife filed a motion demanding $233,000 in past-due payments. Gallo invoked the concept of estoppel, arguing that he had relied on the statements in the 2008 email.
Douglas County District Court Judge Robert Lung ruled against Gallo because the email did not contain a “promise.”
“Furthermore, child support is a child’s right, and it is against public policy to waive any child support,” he wrote in April 2023. “A single email sent fifteen years ago does not reflect an agreement, nor does (Gallo) claim that he actually ‘did what he could’ over the past fifteen years.”
On appeal, Gallo insisted that his ex-wife’s words could only be interpreted one way. Her move to demand child support now that their child was close to being due suggested that the money was actually intended for her. His ex-wife countered that her email was not intended to waive 16 years of child support and that court orders should not be circumvented by one-time statements from one spouse to the other.
The appeals court agreed that there was no evidence that a parent could use their ex-spouse’s promise to avoid court-ordered child support. Moreover, the 2008 email was not a promise to forever release Gallo from his obligations.
“Viewed in context, it sounds more like a temporary accommodation to Father’s health and work circumstances,” Schutz wrote. “Based on these findings, Father cannot prove that the district court erred, even if the parties had the legal authority to modify the support order – which they did not.”
The case is In the wedding of Gallo.
