Opinion
No. 2-519 / 01-1176.
Filed August 14, 2002.
Appeal from the Iowa District Court for Plymouth County, JAMES D. SCOTT, Judge.
Appellant argues the district court erred in denying his motion to receive credit toward his support obligation to appellee. AFFIRMED.
Paul Deck, of Deck Deck law offices, Sioux City, for appellant.
Jeffrey Myers, Sioux City, for appellee.
Considered by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
In July 1996, Ronald Cerwick was ordered to pay $300 per month support to his wife, Cally Cerwick, in a protective order issued under Iowa Code chapter 236 (1995). In April of 2001, Ronald filed a motion to receive credit for support. He claims he cohabitated with Cally from July 1996 until December 1996, while the protective order was in effect, and provided for her during that time. He argues this should satisfy the judgment for maintenance and support. The district court denied the motion to receive credit for support, as well as Ronald's motion pursuant to Iowa Rule of Civil Procedure 1.904(2). Our review of this equitable proceeding is de novo. Iowa R. App. P. 6.4.
In the chapter 236 protective order, Ronald was ordered to pay $300 per month toward the support of Cally. The payments were to begin July 15, 1996 and continue as long as the order remained in effect. The order specified that payments were to be made to the Clerk of the District Court of Plymouth County. Ronald never made any such payment. Instead, he seeks credit for allegedly cohabitating with Cally in violation of the no contact order. Assuming arguendo that such blatant disregard for the court's order was permissible, and that credit could be received for Ronald's so-called "support" of Cally, we find Ronald failed to prove he provided Cally with any such support. At the hearing, Cally denied Ronald's claims, testifying that Ronald never cohabitated with her after the restraining order was issued.
The order remained in effect until July 1, 1997, unless modified or vacated.
We likewise decline to apply the theory of estoppel by acquiescence to this case. Estoppel by acquiescence occurs when a person knows or ought to know of an entitlement to enforce a right and neglects to do so for such time as would imply an intention to waive or abandon the right. Davidson v. Van Lengen, 266 N.W.2d 436, 438 (Iowa 1978). Cally testified she feels entitled to enforce the judgment. Ronald has failed to prove estoppel by acquiescence.
AFFIRMED.