Regina Adams Scroggins v. Clay Adams

ca02-269

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE JOSEPHINE LINKER HART

DIVISION II

REGINA ADAMS SCROGGINS

APPELLANT

V.

CLAY ADAMS

APPELLEE

CA02-269

December 23, 2002

APPEAL FROM THE BRADLEY COUNTY CIRCUIT COURT

[NO. E-94-47-1]

HONORABLE ROBERT C. VITTITOW, CIRCUIT JUDGE

REVERSED AND REMANDED

Appellant Regina Adams Scroggins appeals the trial court's decision to credit appellee for his voluntary expenditures to reduce the arrearage that accumulated when appellee failed to make his court-ordered child-support payments. For reversal, appellant argues that the trial court erred by applying the doctrine of equitable estoppel to grant appellee a reduction in the amount of support owed to appellant and in not awarding attorney fees to appellant. We agree and reverse.

Regina Scroggins and Clay Adams were divorced on February 14, 1995. The divorce decree ordered appellee to pay $645 each month for the support of their two minor children. After appellee became delinquent in his payments, his support obligation was reduced to $300 each month on May 1, 1997. On February 7, 2001, appellant filed another petition for contempt against appellee for his failure to pay child support. The petition asserted thatbeginning in 1995, appellee had failed each year to pay the total amount of child support

owed to appellant, and particularly, he had failed to make any payments in 1999 and 2000. Following a hearing, the trial court entered an order on October 18, 2001, which reduced appellee's arrearage from $14,797.50 to $5,578 by giving him credit for expenditures described by the trial court as "in-kind payments" of $9,218.04. The trial court also awarded appellant judgment for $2,957.50 in medical bills. Further, the court increased appellee's child-support payment to $464 each month and ordered the parties to pay their own attorney fees. From that order comes this appeal.

We review equity cases de novo and will not reverse the trial court's finding unless it is clearly erroneous. See Ark. R. Civ. P. 52(a); see also Tucker v. Tucker, 74 Ark. App. 316, 49 S.W.3d 14 (2001). Although there is evidence to support it, a finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been made. Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1 (1999). Due deference is given to the superior position of the trial court to determine the credibility of the witnesses and weight to be given to their testimony. Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000). We will not reverse the decision of the trial court absent an abuse of discretion on the issue of child support. See Montgomery v. Bolton, 349 Ark. 460, 79 S.W.3d 354 (2002); McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001).

At trial, appellee defended appellant's petition by asserting that he and appellant had entered into an oral agreement wherein he would not be required to pay support, but instead he would make certain purchases for the children. Appellant denied the existence of suchan agreement and sought an increase in support based on the increased needs of the children.

Appellee testified that after he had filed for bankruptcy in December 1997, he told appellant that he did not know how much money he would have because at the time he did not have a set income, but he would pay her what he could. Further, he testified that appellant had told him "to take care of whatever the girls needed, to help out, and ... pay her what I could along." Appellee did, however, acknowledge that his bankruptcy suit was ultimately dismissed.

At trial appellee presented a number of checks that he claimed represented payment of purchases for the girls. The amount of checks written over a three-year period and introduced into evidence totaled $17,035. According to appellee, he wrote nine checks in 2000, totaling $713.35, to various stores where he had purchased clothing for the girls. Further, he testified that he had given one of the girls a check for $100 to help pay for her prom dress and had given each of the girls $100 for a ski trip in Colorado. Appellee further contended that he wrote eleven checks from 1998 to 2001, totaling $1,823.74, that were used to buy what the girls needed, "whether it be for camp supplies, school supplies or whatever."

Appellee did note that a number of checks were made payable to cash because the girls often called him and requested money to go somewhere with their friends. He testified that there were fourteen checks payable to cash totaling $6,153. Additionally, he acknowledged that one check for $2,000 was for a vacation trip for the girls in Dallas, where they stayed at the Galleria and shopped for school supplies. Appellee stated that in three-and-one-half hours the girls had spent their money and "had a great time." Likewise, anothercheck payable to cash for $1,100 was for a trip to St. Louis, where he and the girls went to a baseball game and saw Mark McGuire hit his sixty-second home run of the season. Other checks appellee submitted included a $13 check for a tee shirt, a $20 check for cheerleading, and a $55 check for basketball shoes. Appellee stated that he bought season tickets for the Arkansas Razorback games in Little Rock and the girls and their friends attended the games with him. Appellee testified that he had paid various other expenses, including a subscription to National Wildlife Turkey Federation, YMCA dues, and gasoline used for a trip to Russellville to transport one of the girls to participate in a track-and-field competition.

Except for appellant's acknowledgment that she had asked appellee to help pay for a few things, she denied requesting that appellee provide any of the items for which he was given credit. As noted by appellant, the checks did not identify the items purchased, and several checks were written to clothing stores that sell other merchandise, including men's clothing. Also, appellant disputed checks payable to Wal-Mart and Target because there was no evidence to suggest that the money was spent on the girls. Furthermore, appellant testified that she was unaware if appellee had given the girls money for a trip to Colorado or checks for cash.

Specifically, appellant testified that she never requested that appellee pay for the girls' YMCA membership dues. However, appellant stated that appellee is a member of the Warren Country Club where the girls had their birthday parties each year and that she did request that he pay for the girls to have their birthday parties each year. Appellant further recognized that several checks written by appellee paid for some of the girls' schoolactivities such as basketball camp, cheerleading, and a pep- squad uniform.

The trial court found that appellee "made a bad decision to attempt to support the girls in-kind," and appellant "either agreed to this, or purposefully made no complaint with the intention of obtaining [appellee's] interest in the marital home." The trial court modified appellee's arrearage of $14,797.50 by giving him credit for payments identified as " in-kind" for the following amounts: a) $656.50 for payments to the YMCA; b) $995 for cheerleading expenses; c)$2,973.74 for clothes; d) $1,823.74 for supplies and clothes at Wal-Mart and Target; e) $2,770 for cash to the children for clothes and miscellaneous items. The total credit given to appellee was $9,218.04.

Arkansas Code Annotated section 9-14-234 (Repl. 2002) provides in pertinent part:

(b) Any decree, judgment, or order which contains a provision for the payment of money for the support and care of any child or children through the registry of the court or the Arkansas child support clearinghouse shall be final judgment subject to writ of garnishment or execution as to any installment or payment of money which has accrued until the time either party moves through proper motion filed with the court and served on the other party to set aside, alter, or modify the decree, judgment, or order.

(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.

We note that the commentary to the federal regulations, which mandated Arkansas Code Annotated sections 9-12-3141 and 9-14-234 states:

[e]nforcement of child support judgments should be treated the same as enforcementof other judgments in the State, and a child support judgment would also be subject to the equitable defenses that apply to all other judgments. Thus, if the obligor presents to the court or administrative authority a basis for laches or an equitable estoppel defense, there may be circumstances under which the court or administrative authority will decline to permit enforcement of the child support judgment.

Hendrickson v. State, Office of Child Support Enforcement ex rel., 77 Ark. App. 103, 107, 72 S.W.3d 124, 127 (2002) (citing 54 Fed. Reg. 15, 761 (April 19, 1989)).

For her first point on appeal, appellant argues that the court erred in applying the doctrine of equitable estoppel to reduce the amount of past-due child-support arrearage. Although appellant acknowledges that Arkansas case law has recognized the doctrine of equitable estoppel in child- support arrearage cases, she asserts that those cases involve extreme and abusive circumstances that are not present here.

The elements of equitable estoppel are that (1) the party to be estopped must know the facts; (2) she must intend that her conduct shall be acted on or must so act that the party asserting estoppel has a right to believe the other party so intended; (3) the party asserting estoppel must be ignorant of the facts; and (4) the party asserting estoppel must rely on the other's conduct to his detriment. Hendrickson, supra (citing Barnes v. Morrow, 73 Ark. App. 312, 43 S.W.3d 183 (2001)). The use of equitable defenses to prevent the enforcement of child-support orders, including arrearages, has been affirmed by this court. Hendrickson, supra.

Appellee's reliance on equitable estoppel under the facts of this case is misplaced because he was not ignorant of the facts as required for the doctrine to apply. Appellee knewthat the court had ordered him to pay $300 each month to appellant for the support of his two children. Further, this was not appellee's first appearance before the court to answer for his failure to pay his court-ordered child support. We hold that appellant was not a novice in the court's requirement that such payment be paid according to the court's order, and further he was fully cognizant of the obligation to pay court-ordered child support in accordance with the decree.2

In his argument, appellee relies on Ramsey v. Ramsey, 43 Ark. App. 91, 861 S.W.2d 313 (1993). In Ramsey, the mother and father continued to live together with their two daughters from the time of their divorce in December 1985 until January 1992. The mother filed a contempt action in February 1992 seeking past-due support plus attorney fees. The court in Ramsey held that the mother was estopped from claiming the support arearages that accrued during the seven years of cohabitation.

In that case, the trial judge found that the parties functioned as a family with appellee providing support for appellant and the children. The facts in Ramsey are distinguishable from the facts in this case. Here, appellee neither resided with appellant nor supported the family, but instead relied on an oral agreement that modified the court's order as his basis to obtain a credit against his court-ordered child-support obligation. In Shroyer v. Kauffman, 75 Ark. App. 267, 58 S.W.3d 861 (2001) (citing Burnett v. Burnett, 313 Ark. 599, 855 S.W. 2d 952(1993)), we held that we did not recognize oral agreements to modify priororders of the court. In Burnett, appellee testified that although no order was entered modifying the support obligation, he decided to reduce his payments and appellant agreed to accept the arrangement and did so without complaint for several months. The supreme court held that the actions of appellant did not justify the application of estoppel to prevent the collection of past-due child-support payments. Burnett, supra.

Moreover, according to appellee, the appellant agreed to allow appellee to "take care of whatever the girls need" after he told her he had filed for bankruptcy in December 1997 and was uncertain of his financial means. The bankruptcy action was later dismissed and appellant became gainfully employed. However, appellant did not resume regular payment of his child-support obligation.

Further, we note the voluntary expenditures for the most part, paid for luxuries and did not provide the essentials of life such as food, shelter, utilities and transportation necessary to "take care of the girls' needs." Thus, even if an agreement existed, appellee failed to provide for "the girls' needs." Under the circumstances of the present case, the trial court's application of the doctrine of equitable estoppel and the reduction of appellee's child support is clearly erroneous. Therefore, we reverse on this point.

For her second point on appeal, appellant asserts that the trial court erred by not awarding attorney fees and costs on the contempt motion for arrearages. Appellant contends that she is entitled to attorney fees based on the language of Arkansas Code Annotated section 9-14-233 (Repl. 2002), which states in pertinent part:

(a) All child support that becomes due and remains unpaid shall accrue interest at therate of ten percent (10%) per annum unless the owner of the judgment or the owner's counsel of record requests prior to the accrual of the interest that the judgment shall not accrue interest.

(b) The circuit court shall award a minimum of ten percent (10%) of the support amount due or any reasonable fee, including a contingency fee approved by the circuit court, as attorney's fees in actions for the enforcement of payment of support provided for in the order.

(c) Collection of interest and attorney's fees may be by executions, proceedings of contempt, or other remedies as may be available to collect the original support award.

Appellee argues that appellant failed to preserve the issue of attorney fees for appeal by failing to request attorney fees at trial or objecting to "the court's silence." In fact, the court made provisions in the order that each party should pay his or her attorney fees. It is apparent that the trial court not only considered the issue of attorney fees but made a clear ruling regarding their payment.

In accordance with this statute and our reversal on appellant's first point, appellant is entitled to a minimum of ten percent (10%) of appellee's arrearage of $14,797.50. Therefore, we reverse on both points and remand the case for entry of findings consistent with this opinion.

Reversed and remanded.

Pittman and Bird, JJ., agree.

1 Subsections (b) and (c) of 9-12-314 are nearly identical to section 9-14-234(b) and (c).

2 Although appellee notes that this order did not specify that the support be paid through the court, we do not find that fact dispositive.