Roark v. Roark

Judith Rogers, Judge,

dissenting. With all due respect, I cannot agree with the application of estoppel to withhold execution of judgment for an arrearage in child support based on the facts of this case. The majority affirms the chancellor’s holding to remit judgment for past due support based on theories of estoppel and unclean hands by citing general principles setting out these doctrines, and then concluding that appellant’s “attitude” and “denial” of visitation support their application here. In so doing, the court has essentially ignored what is unquestionably the applicable law on this particular subject. See Cunningham v. Cunningham, 297 Ark. 377, 761 S.W.2d 941 (1988); Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980); Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487 (1978); Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978); Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975); Kirkland v. Wright, 247 Ark. 794, 448 S.W.2d 19 (1969); Riegler v. Riegler, 246 Ark. 434, 438 S.W.2d 468 (1969); Nicholas v. Nicholas, 234 Ark. 254, 351 S.W.2d 445 (1961); Carnahan v. Carnahan, 232 Ark. 201, 335 S.W.2d 295 (1960); Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940 (1957); Pence v. Pence, 223 Ark. 782, 268 S.W.2d 609 (1954); Antonacci v. Antonacci, 222 Ark. 881, 263 S.W.2d 484 (1954); Allison v. Binkley, 222 Ark. 383, 259 S.W.2d 511 (1953); and Sage v. Sage, 219 Ark. 853, 245 S.W.2d 398 (1952). It is curious to me that the majority has neglected an entire body of law that has developed on the precise issue presented in this case.

Ordinarily, the chancery court has no power to remit accumulated court-ordered support payments, as in this state entitlement to payment vests in the person entitled to it as the payments accrue as the equivalent of a debt due. See Holley v. Holley, supra. This principle is now codified at Arkansas Code Annotated §§9-12-314 and 9-14-234 (Repl. 1991). The supreme court, however, has recognized that chancery courts have the authority to remit accumulated payments in support, but only under limited circumstances. Cunningham v. Cunningham, supra. In this regard, the supreme court has consistently approved of the withholding of judgment for an arrearage in support when it is positively shown that the custodial parent has defeated the non-custodial parent’s rights to visitation, such as by removing the child from the jurisdiction of the court and concealing the whereabouts of the child. See e.g. Sharum v. Dodson, supra; Pence v. Pence, supra. The supreme court, however, has not hesitated to reverse rulings remitting past due installments of child support when the proof indicates something less than the outright denial of visitation and when there are other considerations militating against the withholding of judgment. See Holley v. Holley, supra; Kirkland v. Wright, supra; Nicholas v. Nicholas, supra; Carnahan v. Carnahan, supra; Allison v. Bindley, supra. These cases are based on evidence showing that the failure to pay child support was based on something other than the denial of visitation, or when the non-custodial parent at all times knew where the child or children were located. The court has also seized upon circumstances where the non-custodial parent delayed in taking action to enforce his rights or exhibited no great desire to exercise visitation. As was stated in Holley v. Holley, supra:

There are circumstances in which the court is justified in withholding judgment for unpaid child support installments, such as when the mother having custody deprives the father of temporary custody or visitation rights by failing to comply with the terms of a valid decree governing those rights. Massey v. James, 251 Ark. 217, 471 S.W.2d 770; Pence v. Pence, 223 Ark. 782, 268 S.W.2d 609. In such cases, the chancery court is not required to give judgment for arrearages accruing during the time the mother’s actions have defeated the father’s visitation rights.
There is no evidence that appellant removed the children so far from their father that he could not visit the children without great expense as was the case in Antonacci v. Antonacci, 222 Ark. 881, 263 S.W.2d 484. There was no indication that the whereabouts of the children were concealed from him as was the case in Pence v. Pence, 223 Ark. 782, 268 S.W.2d 609, where the court was fragmented on the question. . . . Obviously, he knew where the children were at all times. In these respects, this case is more nearly like Carnahan v. Carnahan, 232 Ark. 201, 335 S. W.2d 295, where we reversed the chancery court’s denial of judgment for arrearages in child support payments. See also Nicholas v. Nicholas, 234 Ark. 254, 351 S.W.2d 445.

Id. at 42-3, 568 S.W.2d at 491.

In Bethell v. Bethell, supra, the supreme court discussed the application of estoppel to prevent the collection of past due alimony payments. Noting the analogy between alimony and child support cases, the court reviewed its previous decisions regarding the remission of child support payments. Upon this review, the court concluded:

From Sage, Pence and our subsequent decisions, we can say that, as a general rule, an ex-spouse is entitled to judgment for all past due installments of alimony awarded by a decree of divorce, not barred by the statute of limitations, unless equity cannot lend its aid because of the actions or conduct of the ex-spouse seeking judgment.

Id. at 419, 597 S.W.2d at 581. As gleaned from the applicable case law, I conclude that the “conduct” which may justify the withholding of judgment is narrowly confined to that which meaningfully interferes or defeats the non-custodial parent’s rights to visitation. Throughout its decisions the supreme court has not taken an expansive view of the application of estoppel to deny judgment, and remission has been based largely on a record showing that the child has been secreted away such as to render nugatory the non-custodial parent’s right to visitation. The evidence in this case falls woefully short of this standard.

As per the decree, the visitation allowed appellee was restricted to “reasonable visitation in the defendant (appellee) with [the] understanding the Plaintiff (appellant) will not consent to have children with defendant for overnight visitation unless he is legally married to live-in companion and unless defendant will agree not to expose children to “drug” related parties.” Appellee, not appellant, left the state and moved to Florida, leaving appellant and the children behind. Appellee did not trouble himself to appear for the divorce, and he did not appeal from the decree in which appellant was awarded custody, and in which child support and visitation were set. Once appellee left the state, he returned only for the hearing in this matter, which was initiated by his petition for modification filed over one year after the divorce, in which he sought not only specific visitation, but also a reduction in child support and an accounting for personal property sold by appellant. Significantly, appellee did not allege in his pleadings that appellant had denied visitation or request that appellant be held in contempt for such denial, but alleged instead “that no provision was made for the defendant to visit with said minor children” in the decree.

In reference to letters noted by the majority, “telling him to leave the children alone, that she did not want him calling the children or coming to see them, that police would be waiting for him when he returned and would put him in jail,” these were written from nine months to a year after the divorce. To put this in context, I quote from one letter dated January 31, 1990.

I am sending you a copy of Wendy (sic) hospital bill. This is just the Hospital bill. I still got one coming from the Doctors. I know you won’t help us. But thought I send it anyway. You never helped us when we needed it.
Jim, I am tired of begging you to help me with these kids. I don’t want you calling them or coming to see them. You are still just thinking of yourself. You could care less what happens to them. They have to eat everyday where (sic) you help or not. I bet you eat everyday don’t you. Just leave us alone. I don’t want to hear from you anymore.

Appellant explained that this letter was written after appellee had declined to come to Arkansas to see their critically ill child in the hospital, although he was urged to do so.

There were other letters introduced into evidence. On August 21, 1989, appellant wrote:

I don’t know what (sic) going on in your head. But you better never tell the kids I won’t let you see them. You can see them any time you want to. Just as long as I don’t half (sic) to see you. . . .
Jim you are just as bad as Elmer or worst (sic). You give up your kids for somebody else’s kids. How do you sleep at night. How could you just leave us with all .the bills and not even try to help us.

In a post script to a letter dated September 10, 1991, appellant indicates that she has just been able to have a phone installed, and she includes the phone number.

The record in this case shows that appellee made no attempt to visit with the children, even though he was given the opportunity. Appellee was asked to visit the child in the hospital, which he did not do, and a visit with the children was offered in the home of appellant’s mother in Florida, which he did not take advantage of. Appellee was also able to make contact with the children by phone. Appellee at all times knew where his children were. Furthermore, the fact that appellant sold property gives me no concern as this property was not covered by the decree. It, therefore, cannot be said that appellant violated the terms of the decree from which appellee sought no relief. Appellant testified that she used the money to “make house payments and feed his kids.”

Based on our de novo review, the facts here simply reveal that appellant’s conduct does not measure up to that for which she should be estopped from receiving judgment for past due support. To the extent that appellant’s actions can be characterized as “misconduct,” her conduct does not rise to the level of being “inequitable,” so as to warrant the withholding of judgment. Appellee was afforded opportunities to visit his children. Since appellee made no attempt to visit with them in Arkansas, it is entirely speculative as to whether such an effort would have been futile, as appellee claimed. It is abundantly clear that appellant displayed bitterness, but we may always find hard feelings in a domestic relations case. While I cannot condone such an attitude, her bitterness is somewhat understandable in that appellee left her with the children to support, and with considerable debts in his wake. There is no evidence in the record that appellant had poisoned the minds of the children against him. In my view, however, the record reveals that appellee’s failure to pay child support had nothing to do with the conduct of appellant, or visitation. In adoption cases, it is said that a father’s duty to support his minor children cannot be excused on the basis of the conduct of others, unless that conduct prevents him from performing his duty. Pender v. McKee, 266 Ark. 18, 582 S. W.2d 929 (1979).

I suggest that the majority has extended the application of estoppel beyond any factual scenario encountered in prior case law. I do not think this a wise course as recently the approach has been more restrictive to the end of advancing the collection of unpaid child support. See Sullivan v. Eden, 304 Ark. 133, 801 S.W.2d 32 (1990). In Sullivan v. Eden, the supreme court recognized the recent federal legislation in the area of child support and this state’s efforts in compliance, and held that chancery courts were no longer to recognize private agreements modifying the amount of child support after July 20, 1987. Additionally, by Act 870 of 1991, the legislature amended Ark. Code Ann. § 9-14-236 to read:

(b) In any action involving the support of any minor child or children, the moving party shall be entitled to recover the full amount of accrued child support arrearages from the date of the initial support order until the filing of the action.

The chancellor has ample tools at his disposal if it is felt that the parties are disobeying court orders. In my opinion, the deprivation of child support should be used as a means of last resort. Child support is obviously designed to benefit children, who should not have to suffer for what is perceived as “misconduct” on the part of one parent. I would reverse and remand this case for a determination of the full amount of the arrearage under Sullivan, with directions that judgment be entered.

Jennings, J., joins in this opinion.