Some jurisdictions permit credit where the mother consented to the father's voluntary expenditures as an alternate manner of satisfying his child support obligations.Souran v. Souran, 80 Misc.2d 476, 363 N.Y.S.2d 511 (1975); Tescher v. Tescher, 491 P.2d 82 (Colo. App. 1971); Frazier v. Rainey, 227 Ga. 350, 180 S.E.2d 725 (1971); Gould v. Awapara, 365 S.W.2d 671 (Tex. Civ. App. 1963). The original absolute rule against retroactive modification should admit of some qualification.
Special considerations of an equitable nature, however, may justify a court in crediting child support payments made directly to the wife, to the children or to others on the children's behalf on due and unpaid child support, although made at variance with the technical requirement that they be made through the clerk of the district court, when that can be done without injustice to the divorced mother. ( Ediger v. Ediger, supra; Dorsey v. Dorsey, 28 Colo. App. 63, 470 P.2d 581; Martin v. Martin, 59 Wn.2d 468, 368 P.2d 170; and Gould v. Awapara, 365 S.W.2d 671 [Tex. Civ. App. 1963].
The effect of the noted provision of section 16.066 (formerly TEX.REV.CIV.STAT.ANN. art. 5530) is to make the limitation statute of Missouri applicable to this judgment. See Gould v. Awapara, 365 S.W.2d 671, 673 (Tex.Civ.App. — Houston 1963, no writ). H relies solely upon TEX.CIV.PRAC. REM.CODE ANN. s 35.003(c), in conjunction with TEX.FAM.CODE ANN. § 14.41(b)(2), and contends the statutes apply to preclude this action in Texas and, therefore, the trial court was without jurisdiction.
l appears to align Oklahoma with a majority of American jurisdictions and England which observe the general rule that in proceedings to enforce an order for child support various defenses are available to the obligor such as laches, estoppel, waiver, acquiescence, release or agreement. Headley v. Headley, 277 Ala. 464, 172 So.2d 29 (1964); Pence v. Pence, 223 Ark. 782, 268 S.W.2d 609 (1954); Carson v. Carson, 179 Cal.App.2d 665, 4 Cal.Rptr. 38 (1960); Tescher v. Tescher, 491 P.2d 82 (Colo.Ct.App. 1971); Frazier v. Rainey, 227 Ga. 350, 180 S.E.2d 725 (1971); Andersen v. Andersen, 89 Idaho 551, 407 P.2d 304 (1965); Johnson v. Johnson, 26 Ill. App.3d 64, 324 N.E.2d 450 (1975); McKee v. McKee, 154 Kan. 340, 118 P.2d 544 (1941); Sonenfeld v. Sonenfeld, 331 Mich. 60, 49 N.W.2d 60 (1951); Cote v. Cote, 94 N.H. 372, 54 A.2d 360 (1947); Axelrad v. Axelrad, 285 A.D. 903, 138 N.Y.S.2d 40 (1955), aff'd, 309 N.Y. 687, 128 N.E.2d 326 (1955); McCrann v. McCrann, 138 N.E.2d 169 (Ohio Ct. App. 1951); Gould v. Awapara, 365 S.W.2d 671 (Tex. Civ. App. 1963); Larsen v. Larsen, 5 Utah 2d 224, 300 P.2d 596 (1956); De Blaquiere v. De Blaquiere, 3 Hagg. Ecc. 322, 162 Eng.Rep. 1173 (1830) (order for support alimony). In McNeal the court concluded that during the time the father cared for the child in his home, it would have been inequitable to grant the mother a child support arrearage judgment where the mother impliedly consented to a departure from the court order by making no complaint for at least 1 1/2 years.
This point does not present reversible error. Gould v. Awapara, 365 S.W.2d 671, 674 (Tex.Civ.App. Houston 1936, no writ). The conclusions of law filed by the trial court show that it judicially noted the laws of New York and that it was sufficiently satisfied as to the meaning and application of such laws. The record does not establish that this was an abuse of the trial court's discretion or that Black was denied an opportunity to properly respond to the foreign law.
In Gard v. Gard, 244 S.W.2d 884, 886--87 (Tex.Civ.App.--El Paso 1951, no writ), the court held the movant is required to give the adverse party only such notice, if any, that the judge deems necessary to enable the adverse party fairly to prepare to meet the request. Also in Gould v. Awapara, 365 S.W.2d 671, 673--74 (Tex.Civ.App.--Houston 1963, no writ), the court held that even though no formal motion was made requesting the court to take judicial notice of the statutes of a foreign jurisdiction, those statutes were pleaded and the other party was given notice of the movant's intention to rely upon them. Furthermore, the court held that upon the trial of the merits the applicability of the foreign law was argued, and after all evidence was presented, the case was reset for five days to give the attorneys further time to prepare argument on the law.
85 directly on his children, from July 8, 1970, until September 15, 1973, exclusive of child support paid, and that since then he has continued to furnish the children with an allowance, clothes, and other articles; that he is also obligated to pay $4,000.00 for orthodontic work for the children; and that it was intended, and agreed to by the children's mother, that these expenditures were in lieu of his regular monthly child support payments. He cites Gould v. Awapara, 365 S.W.2d 671, 674 (Tex.Civ.App.--Houston 1963, no writ). That case does not support his present contention, for there the monthly payments were ordered to be made for support of the wife and a child, and the court found that the payments had been made in accordance with the court order; whereas in the case at bar the petitioner admittedly did not make the child support payments to the Child Support Officer, as ordered by the court. Moreover, in Gould the former wife agreed that certain payments on behalf of the child were in satisfaction of the judgment; but in the case at bar no showing has been made that the former wife agreed that the payments in question would be in satisfaction of the order requiring him to make the payments directly to the County Support Officer.
Petitioner Holloway advances the contention that he is entitled to be credited with the sum of $21,447.88 against his obligation to pay child support payments under the decree of the court, which includes payments for private tuition, clothing, and other specific items such as travel expenses, automobile repairs, books and supplies, etc. He argues that the trial court's failure to allow him such credits renders the order of commitment void. In support of his contention that he be allowed an offset against the child support payments Holloway relies upon the case of Gould v. Awapara, 365 S.W.2d 671 (Tex.Civ.App., Houston 1963). We do not agree with petitioner's contention.
Appellant was put on notice that appellee contended that the contracts were not usurious under the Michigan court decisions by an application for summary judgment filed in the cause several months prior to the trial, which application cited the cases upon which appellee relied. In the absence of any exception to the contents of the formal notice or to the date on which it was filed, the trial court did not abuse his discretion in determining that the notice was timely and sufficient. Gard v. Gard, Tex.Civ.App., 244 S.W.2d 884; Gould v. Awapara, Tex.Civ.App., 365 S.W.2d 671. It is not necessary to produce proof of facts of which a court is authorized to take judicial knowledge.