Chitwood v. Chitwood

Cite as 2014 Ark. 182

SUPREME COURT OF ARKANSAS
No. CV-13-963

KYLIE B. CHITWOOD Opinion Delivered APRIL 24, 2014

APPELLANT APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
V. [NO. DR-2011-1164-5]
GORDON G. CHITWOOD, JR. HONORABLE XOLLIE DUNCAN,
APPELLEE JUDGE

AFFIRMED.

DONALD L. CORBIN, Associate Justice

Appellant, Kylie B. Chitwood, appeals the order of the Benton County Circuit Court

granting summary judgment to her father, Appellee, Gordon G. Chitwood, Jr., on her

complaint to collect an alleged arrearage for child support accrued during the period of

February 19, 1999, to May 31, 2004. The order appealed from also dismissed as moot

Appellee’s third-party complaint for indemnification against Appellant’s mother, Jane

Chitwood. For reversal, Appellant contends that the circuit court erred in two respects. First,

Appellant asserts that the circuit court erred in ruling that no arrearage existed because her

mother was equitably estopped from collecting the support in a previous lawsuit. Second,

Appellant asserts that the circuit court erred in finding that her needs were met during the

challenged period. This is a subsequent appeal, and jurisdiction is properly in this court

pursuant to Arkansas Supreme Court Rule 1-2(a)(7) (2013). Chitwood v. Chitwood, 2013 Ark.

195. We find no merit to either of Appellant’s arguments and affirm.
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The record reflects the following. Appellant was born on October 1, 1990, during the

marriage of Appellee and Jane Chitwood. She was the second child born of the marriage, as

Appellee and Jane Chitwood also had a son born on September 23, 1987. Appellee divorced

Appellant’s mother in October 1993, and was ordered to pay child support for both children.

On July 26, 2011, Appellant, then age twenty, filed a complaint against Appellee to collect

an alleged arrearage in child support that had accrued from February 19, 1999, to May 31,

2004. On August 30, 2011, Appellee filed a third-party complaint against Appellant’s mother

seeking indemnification from her should he be required to pay the alleged arrearage.

On February 23, 2012, Appellee filed a motion for summary judgment, arguing

primarily that Appellant’s complaint was barred under the law-of-the-case doctrine, based on

previous litigation wherein he had prevailed against Jane on her claim for unpaid child support

for the same period. Chitwood v. Chitwood, 92 Ark. App. 129, 211 S.W.3d 547 (2005)

(affirming circuit court’s finding that Jane Chitwood was equitably estopped from asserting

her claim for unpaid support during the same period, February 1999 to May 2004). After a

hearing on the motion for summary judgment, the circuit court announced its ruling from

the bench and later entered an order granting Appellee’s motion for summary judgment on

May 24, 2012.

We dismissed Appellant’s first appeal for lack of a final order. Chitwood, 2013 Ark.

195. The circuit court subsequently entered an amended order, again granting summary

judgment to Appellee and also dismissing, as moot, his third-party complaint for

indemnification. In the amended, final order now being appealed, the circuit court

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specifically found “that there was no child support arrearage for the period of time sought in

[Appellant’s] Complaint and that there is no arrearage as of this date.” The circuit court’s

ruling was based on the previous litigation in which the court of appeals affirmed the circuit

court’s decision that Jane Chitwood was estopped from collecting child support for the

challenged period. Chitwood, 92 Ark. App. 129, 211 S.W.3d 547. The order also stated as

follows:

The Chitwood children’s needs were met during the period of time when [Appellee]
was not paying child support pursuant to his belief that an agreement had been made
that no child support would be due and owing and he would have no relationship with
the children. This factual situation was fully resolved by the Court in Chitwood v.
Chitwood, CA-04-996 and on appeal in Chitwood v. Chitwood, 92 Ark. App. 129[, 211
S.W.3d 547] (2005).

....

5. The Court finds that at this point in time, to require [Appellee] to provide
funds to [Appellant] would be inequitable.

6. Because there was no arrearage during the period of time for which an
arrearage is sought in this Complaint and because there is no arrearage today, the entry
of an Order of Summary Judgment is ordered.

Appellant timely appealed from the foregoing order, which was final because it

dismissed the third-party complaint as moot.

We review child-support cases de novo on the record, and we do not reverse a finding

of fact by the circuit court unless it is clearly erroneous. Hall v. Hall, 2013 Ark. 330, ___

S.W.3d ___. In reviewing a circuit court’s findings, we give due deference to that court’s

superior position to determine the credibility of the witnesses and the weight to be accorded

to their testimony. Id. However, we give no deference to a circuit court’s conclusion of law.

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Id. Summary judgment is to be granted by a circuit court only when it is clear that there are

no genuine issues of material fact to be litigated, and the party is entitled to judgment as a

matter of law. Tillman v. Raytheon Co., 2013 Ark. 474, ___ S.W.3d ___.

Appellant’s first point for reversal of the summary judgment is essentially a challenge

to the circuit court’s finding that there was no arrearage because Appellant’s mother was

estopped from pursuing the same claim in a previous lawsuit. Appellant argues that the

equitable-estoppel defense that Appellee had used successfully in the earlier lawsuit filed by

her mother cannot be asserted in this case because Appellee has not presented any facts

necessary to satisfy the elements of equitable estoppel against Appellant. Relying on Fonken

v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (1998), Appellant argues further that her mother’s

actions did not absolve Appellee of his legal and moral obligation to pay child support.

According to Appellant, because Appellee’s obligation to pay support continued to exist

during the five-year period that he did not pay support, the arrearage is a legitimate claim for

Appellant to pursue now that she has reached the age of majority.

Appellee responds that child support is a singular obligation and that the circuit court

correctly determined that there was no arrearage and no cause of action for Appellant to

pursue because estoppel had been determined in the previous lawsuit. Specifically, he asserts

that, because an order had previously been entered setting the amount of child support he was

to pay, the controlling statute governing Appellant’s ability to collect child support upon

reaching the age of majority is Arkansas Code Annotated section 9-14-236 (Repl. 2009).

Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001). Because

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this court has interpreted that statute in Clemmons as providing for only a singular obligation

of child support, Appellee maintains that the prior litigation bars the present action.

We conclude that our holdings in Clemmons and Chunn v. D’Agostino, 312 Ark. 141,

847 S.W.2d 699 (1993), are dispositive of this case and render Appellant’s argument for

reversal without merit. In Clemmons, this court considered the two statutes governing when

children who have reached the age of majority may maintain an action for child support: Ark.

Code Ann. §§ 9-14-105 and 9-14-236 (Repl. 2009). This court concluded in Clemmons that

section 9-14-105 applies to actions for initial petitions of support and that section 9-14-236

applies to actions for collection of arrearages for support ordered in a prior judgment. This

court also concluded in Clemmons that section 9-14-236 “does not place a limitation on who”

among the statute’s list of possible parties “can pursue an action for collection of child-support

arrearages.” Clemmons, 345 Ark. at 342, 47 S.W.3d at 234. We noted that our case law

supported such a conclusion, as this court has had cases in which the custodial parent, the

adult child, or the custodial parent, even after the child reached majority, was allowed to

pursue collection of the arrearage. See Clemmons, 345 Ark. 330, 47 S.W.3d at 227 (collecting

cases). However, we also noted that even though the statute “contemplates one support

obligation which may be pursued by different persons at different times,” our cases indicate

that “once a child reaches majority, whoever files the collection action first is allowed the

right and ability to collect.” Clemmons, 345 Ark. at 344, 47 S.W.3d at 235 (quoting Chunn,

312 Ark. at 145, 847 S.W.2d at 701). Our interpretation of the statute as stated in Clemmons,

as well as the cases collected and cited therein, leads to the conclusion that when a custodial

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parent files suit to collect an arrearage for the support of a minor child, that child may not also

sue for the same arrearage once the child reaches majority.

We note that, although some subsections of these statutes have been slightly amended

and rearranged, there have been no substantive changes to the statutes since Clemmons was

decided. The General Assembly is presumed to be familiar with this court’s interpretations

of its statutes, and if it disagrees with those interpretations, it can amend the statutes. Corn v.

Farmers Ins. Co., 2013 Ark. 444, ___ S.W.3d ___. Without such amendments, however, our

interpretations of the statutes remain the law. Id.; Miller v. Enders, 2013 Ark. 23, ___ S.W.3d

___.

Applying these statutory principles as interpreted in Clemmons to the facts of this case,

we see that Jane Chitwood was the first to file the action to collect the unpaid support for the

five-year period from February 1999 to May 2004. As noted by the court of appeals, Jane

Chitwood’s action was filed on April 21, 2003, while Appellant was still a minor. Chitwood,

92 Ark. App. 129, 211 S.W.3d 547. That action concluded with the court of appeals

affirming the circuit court’s finding that Jane Chitwood was prohibited by the doctrine of

equitable estoppel from seeking to collect child-support arrearages or to enforce any child-

support judgment that had accrued through May 25, 2004. As the first to file, Jane Chitwood

was thus allowed the right and the ability to collect the alleged arrearage. See Clemmons, 345

Ark. 330, 47 S.W.3d 227. Her attempt failed because it was held that she was estopped from

collecting the arrearage. Chitwood, 92 Ark. App. 129, 211 S.W.3d 547. To allow Appellant

to subsequently maintain a second, or additional, suit to collect the same support obligation

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would be inconsistent with the singular nature of the child-support obligation. While it is

true, as Appellant argues, that she could not have maintained her action until she reached

majority, that does not make her claim for support a different one from the one pursued by

her mother that was barred. See Chunn, 312 Ark. 141, 847 S.W.2d 699 (concluding that

action by adult children was the same claim and barred by their mother’s failure to bring it

within the then applicable five-year-limitation period).

In sum, we conclude that the alleged arrearage for the challenged period was a singular

obligation of support that has previously been litigated and barred from collection due to the

doctrine of equitable estoppel. Chitwood, 92 Ark. App. 129, 211 S.W.3d 547. Because child

support is a singular obligation, and because the unpaid support claimed in this case has

previously been litigated to the conclusion that it cannot be collected, we cannot say that the

circuit court here was clearly erroneous in finding that there is no arrearage and that the prior

suit bars the present suit.

As her second point for reversal, Appellant challenges the circuit court’s finding that

her needs were met by funds available to her mother during the five-year period that Appellee

did not pay child support. On appeal, Appellant emphasizes that the additional funds used to

meet her needs did not come from Appellee, but from her mother’s inheritance.

Initially, we note that the facts supporting this finding were undisputed. For, as the

circuit court’s order correctly observed, Appellant admitted in her deposition that her and her

brother’s everyday needs and expenses were paid during the challenged period. Furthermore,

Appellant misreads the operative effect of this finding as a matter of law. The summary

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judgment was appropriately granted because there were no material facts in dispute, and the

claim was barred as a matter of law. If the claim is barred as a matter of law, whether

Appellant’s needs were met for the challenged period is of no effect.

In conclusion, we note that the circumstances of this case are somewhat unique. The

court of appeals held that the mother was estopped from asserting the claim to the support

because she had induced the father to enter into an agreement that she knew was

unenforceable because she had sought legal counsel on the matter. The arrearage that

Appellant attempts to collect here is the same arrearage that her mother had attempted to

collect in the previous suit. That her mother’s attempt to collect failed does not change the

singular nature of the child-support obligation as contemplated by the statute, section 9-14-

236, and recognized in our case law interpreting the statute, Clemmons and Chunn.

Appellant’s present suit is barred by her mother’s previous suit. The finding that Appellant’s

needs were met during the challenged period of unpaid support was not clearly erroneous and

was not the basis for the circuit court’s conclusion that summary judgment should be granted.

The summary judgment in favor of Appellee is therefore affirmed; accordingly, there is no

need for us to address Appellee’s arguments concerning the possible revision of the amount

of support, any credit for moneys he paid to Appellant after she had reached majority, and the

possible transfer of wealth or accumulation of capital that would result.

Affirmed.

BAKER, J., dissents.

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KAREN R. BAKER, Justice, dissenting. Although the majority holds that Ark.

Code Ann. § 9-14-236 and our opinions in Chunn v. D’Agostino, 312 Ark. 141, 847 S.W.2d

699 (1993) and Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 344, 47 S.W.3d

227, 235 (2001) support that Ark. Code Ann. § 9-14-236 only provides for a singular child-

support-arrearages obligation, this holding misconstrues our statute and case law. Therefore,

I dissent.

First, in interpreting Ark. Code Ann. § 9-14-236, using plain and ordinary meaning

of its language, Ark. Code Ann. § 9-14-236 does not state that the obligation of child-support

arrearages is a singular obligation. The statute only contemplates who can bring an arrearages

claim and when. Ark. Code Ann. § 9-14-236 does not preclude Kylie Chitwood, “the child

for whose benefit the initial support order was entered,” from asserting her action for child-

support arrearages, and once she reached majority, she had the right to assert her action. Kylie

had this right despite her mother having previously been equitably estopped from collecting

the child-support arrearage by her conduct when Kylie was a minor. The mother’s action and

Kylie’s action are distinct from one another.

Second, the majority relies on Chunn and Clemmons in support of its interpretation that

Ark. Code Ann. § 9-14-236 allows only for a singular obligation. However, both cases are

distinguishable. Chunn is distinguishable from the present case because in Chunn, the mother

was barred, not estopped, by a five-year statute of limitations, in place at that time. In that

case, when the Chunn children reached majority, they timely filed an action to collect the

arrearages that had accrued from the time the support order was entered to the time their

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father’s parental rights were terminated. Our holding was specific to the question of finality

and the statute of limitations. We held that a noncustodial parent had a “vested right to rely

on the statute of limitations as a defense, and that could not be changed by subsequent

legislation.” Chunn, 312 Ark. 141, at 145, 847 S.W.2d 699, 701–02. Further, in Chunn we

held, “As we read the statute it contemplates one support obligation which may be pursued

by different persons at different times.” Id. Here, Appellee’s obligation of support was never

terminated by a statute of limitations or abated by court order, instead it remained a viable

debt for Kylie to pursue after she reached majority.

Clemmons is also distinguishable and does not support the majority’s opinion. In

Clemmons, we addressed who was entitled to bring an action for arrearages after a child has

reached majority. In Clemmons, the mother had assigned her right to collect to appellee,

Office of Child Support Enforcement. The chancery court held that the Office of Child

Support Enforcement was estopped because the mother had concealed the child, barring

visitation. In an earlier related case, the court of appeals reversed this decision, holding that

refusal to allow the collection of past-due support based on a failure to allow visitation

contravenes the purpose of the Uniform Interstate Family Support Act. Office of Child Support

Enforcement v. Clemmons, 65 Ark. App. 84, 88, 984 S.W.2d 837, 839 (1999).

In Clemmons, we held that either the custodial parent, the Office of Child Support

Enforcement, or the child, having reached majority, was entitled to petition for arrearages

under § 9-14-236. We stated that “as we read the statute [Ark. Code Ann. § 9-14-236] it

contemplates one support obligation which may be pursued by different persons at different

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times. Chunn, 312 Ark. at 145, 847 S.W.2d at 701; [Darr v. Bankston, 327 Ark. 723, 940

S.W.2d 481 (1997)]. These cases indicate that once a child reaches majority, whoever files

the collection action first is allowed the right and ability to collect.” Clemmons, 345 Ark. at

344, 47 S.W.3d at 235. Clemmons does not support the majority’s holding here, because the

mother was estopped from pursuing arrearages before Kylie reached majority, where in

Clemmons, the action in question occurred after the child had reached majority.

Looking at the plain meaning of Ark. Code Ann. § 9-14-236, Kylie could not pursue

arrearages before she reached majority. Chunn and Clemmons contemplate only one support

obligation if an action is brought after the child reaches majority. In this case, Kylie’s action is

the only action that was brought after she had reached majority. Thus, the circuit court erred

in finding that Kylie’s action was barred as a matter of law.

The majority places much emphasis on the circuit court’s decision that because Kylie’s

mother was estopped, there are no arrearages. Although the court of appeals ruled that Kylie’s

mother was estopped, the court did not hold there were no arrearages. Chitwood v. Chitwood,

92 Ark. App. 129, 211 S.W.3d 547 (2005). In the instant case, the circuit court erred in finding

that there were no arrearages based on the court of appeals opinion, as that was not stated. As

the obligation is still viable, Appellee presents no facts essential to assert a claim of equitable

estoppel as to Kylie’s claim. Therefore, because Kylie has reached majority, pursuant to Ark.

Code Ann. § 9-14-236, the circuit court erred in granting summary judgment.

The circuit court also held in its order granting summary judgment that to allow Kylie

to collect the unpaid child support would be inequitable. Because Kylie’s mother was estopped

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from prevailing in her attempt to collect the support, I fail to see how it would be inequitable

for Appellee to pay his obligation. This is not an instance in which Appellee would have paid

the support twice. The circuit court erred in granting summary judgment based on inequity.

The majority chose not to address Kylie’s second point on appeal, that although it is

undisputed that Kylie’s needs were met, they were not met by Appellee. The majority holds

that “summary judgment was appropriate because there were no material facts in dispute and

the claim was barred as a matter of law.” Therefore, “whether Appellant’s needs had been met

is of no effect.” However, the majority goes on to hold that the decision of the circuit court

finding that Kylie’s needs were met was not clearly erroneous.

However, the majority ignores our case law, which provides that “the parent must

furnish the support and maintenance himself and the duty is a personal one, and he may not rely

upon the assurance that someone else is properly supporting and maintaining the child . . . .”

Pender v. McKee, 266 Ark. 18, 35, 582 S.W.2d 929, 935 (1979). The Arkansas Court of Appeals

has held that the noncustodial “parent has a legal and moral duty to support and educate his

child and to provide the necessities of life even though the child has sufficient property to do

so.” Lee v. Lee, 95 Ark. App. 69, 75, 233 S.W.3d 698, 702 (2006).

The court of appeals’ reasoning in Lee is persuasive and I would adopt it. In Lee, the

children received a large personal-injury settlement as a result of an accident and a special trust

provided for their needs. The appellant argued that the circuit court erred in not crediting the

amount that the children received from a special-needs trust against his support obligation. The

court of appeals reasoned that the funds in the trust were not earned by the father and are not

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a substitute for the child support he owed. Likewise, in this case, the mother’s inheritance,

which allowed her to provide for Kylie, in no way relieved Appellee of his court-ordered

support obligation.

Additionally, in Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (1998), the appellee,

upon reaching majority, petitioned for child support arrearages. The appellant’s child-support

order had been abated by the court when he received joint custody. Subsequently, when the

appellee’s mother regained custody no support order was entered, and she told appellant to stop

paying voluntary support. We held “that a parent has a legal duty to support his minor

children, regardless of the existence of a support order”. Id at 642, 954 (internal citations

omitted); see also Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). We held that support was

both a “legal and moral duty.” Fonken, 334 Ark. at 642, 976 S.W.2d at 954. We noted that

“Mrs. Fonken’s actions in telling Mr. Fonken to stop paying child support, and his reliance

thereupon, are insufficient to relieve him of his legal obligation to his minor child. Even when

the support obligation may be affected by contract, the duty cannot be bartered away

permanently to the detriment of the child”. Id. (internal citations omitted).

Fonken is on point but in addition, here, Appellee’s support order was never abated by

a court order. Further, as in Lee, Appellee cannot claim credit for Kylie’s needs having been

met by her mother’s inheritance. Appellee had a legal and moral duty to support Kylie. Thus,

the circuit court erred in granting summary judgment to Appellee. Accordingly, I would

reverse and remand this matter for trial.

Hogue Law Firm, PLLC, by: Brian C. Hogue, for appellant.

Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: Sarah L. Waddoups and

David. R. Matthews, for appellee.

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