APPEAL FROM THE DISTRICT COURT OF LEA COUNTY. RALPH W. GALLINI, District Judge
Donnelly, Bivins, Pickard
Respondent (Mother) appeals from the trial court's order denying her claim for child support arrearages. The single issue raised on appeal is whether the trial court erred in upholding Father's unilateral pro rata reduction of monthly child support when two of his three children reached the age of majority. We reverse.
On October 30, 1989, Mother and Petitioner (Father) entered into a settlement agreement incident to their divorce. Pursuant to the terms of the settlement agreement, Father agreed to pay Mother $1000 per month
as child support for the three minor children of the parties. The agreement and decree dissolving the marriage of the parties provided for a single lump-sum amount of child support and did not specify the amount of child support payable for each individual child.
In November 1990, when the oldest of the parties' three children reached the age of majority, Father, without any previous Discussion or consultation with Mother, unilaterally reduced his monthly child support payment by one-third. From January 1991 until February 1992, Father paid $667 per month in child support. In March 1992, when the parties' second child turned eighteen, Father again unilaterally reduced his monthly support payment by an additional one-third to the sum of $333 per month. He paid $333 per month from March 1992 until March 1, 1993. On March 24, 1992, Mother filed a petition seeking an increase in child support for the remaining minor child of the parties. Her petition alleged that Father "arbitrarily cut his child support to [$]333 per month, which is not consistent with his obligations [under the] New Mexico child-support guidelines." Mother's petition sought an increase in the amount of monthly child support for the youngest child of the parties and an award of reasonable attorney fees. Her petition omitted any claim for child support arrearages. Although Mother's petition did not specifically seek payment of child support arrearages, both parties acknowledge that this issue was litigated without objection, and the record reflects that both parties submitted requested findings of fact and Conclusions of law relating to this claim.
A court hearing was held on February 17, 1993. Following the hearing, the trial court determined that Mother, by her silence and conduct in accepting the unilaterally reduced child support payments after the oldest child of the parties reached the age of majority, had "waived and acquiesced in her right to have the Agreement enforced [for] the payment of $1,000.00 per month." The trial court also concluded that Mother was "equitably estopped from claiming the total support payment of $1,000.00 per month . . . ." The court granted Mother's petition to increase the amount of child support for the youngest child of the parties to $549 per month commencing on March 1, 1993.
New Mexico follows the general rule that an undivided support award applicable to more than one child is presumed to continue in force for the full amount specified in the decree until the youngest child attains the age of majority. Britton v. Britton, 100 N.M. 424, 426, 671 P.2d 1135, 1137 (1983); see also Finley v. Finley, 81 Ill. 2d 317, 410 N.E.2d 12, 17, 43 Ill. Dec. 12 (Ill. 1980). The policy behind such rule was explained by the court in Delevett v. Delevett, 156 Conn. 1, 238 A.2d 402, 404 (Conn. 1968), as follows:
First, a child support order is not based solely on the needs of the minor children but takes into account what the parent can afford to pay. Consequently, a child support order may not accurately reflect what the children actually require but only what the parent can reasonably be expected to pay. To allow an automatic reduction of an undivided order would be to ignore the realities of such a situation. Second, to regard an undivided child support order as equally divisible among the children is to ignore the fact that the requirements of the individual children may vary widely, depending on the circumstances. [Citations omitted.]
Similarly, in Spingola v. Spingola, 91 N.M. 737, 744, 580 P.2d 958, 965 (1978), Justice Easley, speaking for our Supreme Court, stated that while the number of children involved is a factor for consideration in determining the appropriate amount of child support, "experience indicates that the support level for one ...