Roberts v. Roberts ( 1997 )

DANA, J.,

dissenting.

[¶ 13] I respectfully dissent. By virtue of David’s agreement with his daughter, Cecile received $7,600 in cash over a period of two and a half years and David’s alimony arrear-ages should be set off by that amount.

[¶ 14] I agree that a court cannot credit payments made by the obligor spouse to third parties on behalf of the obligee spouse because such a setoff would allow the obligor to unilaterally modify a court’s order to pay alimony to the obligee. E.g., In re Marriage of Dwan, 108 Ill.App.3d 808, 64 Ill.Dec. 340, 344, 439 N.E.2d 1005, 1009 (1982). Furthermore, the obligor’s payments to third parties prevents the obligee spouse from disbursing the money as she sees fit. E.g., Lopez v. Lopez, 125 Ariz. 309, 609 P.2d 579, 581 (App. 1980). When, however, the obligee spouse receives the cash payments herself, as a result of the obligor’s assignment of a third party’s debt, those cash payments should not be given any less weight than cash payments received directly from the obligor. Crediting those payments toward the obligor’s alimony arrearages does not result in a retroactive modification of the alimony award; the setoff merely acknowledges payments that the obli-gor has made to fulfill the requirements of the court order. Here, Cecile testified that she received $7,600 as a result of David’s agreement with their daughter and the court’s credit of that amount to David’s alimony arrearages should therefore be upheld.