Barnes v. Morrow

JOHN B. ROBBINS, Judge,

concurring. I concur with the J majority decision to the extent that it does not require appel-lee to actually pay appellant for the support that accrued for their son David during the four years or so after August 1996 that David resided with appellee. The rationale, however, for my position differs somewhat from that of the majority.

On our de novo review the majority affirms the trial court’s finding that appellant should be barred from collecting this support by application of the principle of equitable estoppel. However, I do not believe it necessary to resort to equity for a defense to enforcement of appellee’s support obligation. Equitable remedies and defenses have historically served to provide relief where law was inadequate to do so. Here, however, the law provided the court with a remedy where a child, for whom support is ordered to be paid, in fact resides with the noncustodial parent. Arkansas Code Annotated sections 9-12-314(c) and 9-14-234(c) (Repl. 1998) provide:

(c) The court may not set aside, alter, or modify any decree, judgment, or order which has accrued unpaid support prior to the filing of the motion. However, the court may offset against future support to be paid those amounts accruing during time periods, other than reasonable visitation, in which the noncustodial parent had physical custody of the child with the knowledge and consent of the custodial parent.

Pursuant to this statute, appellee’s current support obligation could be terminated, at the earliest, when appellee filed his petition on February 18, 2000, seeking such termination. Although appellee was held no longer responsible for current support after that time, Ark. Code Ann. § 9-14-235(a) requires that as to any arrearage in support existing when the obligation to pay current support terminates, the obligor shall pay such arrearage by continuing “to pay an amount equal to the court-ordered child support, or an amount to be determined by a court based on the application of guidelines for child support under the family support chart, until such time as the child support arrearage or judgment has been satisfied.”

Applying these statutory provisions to the facts of this case, we should conclude that the $15,000 of support that had already accrued when appellee petitioned to terminate his support duty had become a judgment pursuant to Ark. Code Ann. §§ 9-12-314(b) and 9-14-234(b) (Repl. 1998). Thereafter, even though appellee was no longer responsible for current support, he was obligated by virtue of Ark. Code Ann. § 9-14-235(a) to continue paying the sum of $68 per week until his total arrearage was paid. However, pursuant to §§ 9-12-314(c) and 9-14-234(c) the trial court could offset against this ongoing obligation the $15,000 which had accrued while David resided in appellee’s household with the knowledge and consent of appellant. And this, I submit, is what we should consider the trial court to have done, notwithstanding the trial court’s reference to equitable estoppel. To do so would not be inconsistent with the cases cited in the majority where equitable defenses against enforcement of support orders were upheld, because none of those cases turned on the fact that the child for whom support was being paid was actually residing away from the custodial parent in the obligor’s household. See Ramsey v. Ramsey, 43 Ark. App. 91, 861 S.W.2d 313 (1993) (children, custodial parent, and obligor all resided in same residence as a family unit); Ark. Dep’t of Human Servs. v. Cameron, 36 Ark. App. 105, 818 S.W.2d 591 (1991) (custodial parent induced obligor to sign consent to adoption but, unknown to obligor, adoption was not pursued); Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822 (1991) (custodial parent interfered with obligor’s visitation rights).

For the foregoing reasons, I believe that the trial court’s refusal to require appellee to pay support that accrued while David was residing in his household was not error, but should have been based upon the offset provisions of §§ 9-12-314(c) and 9-14-234(c).