Michael Keith Behrens v. Cindy Behrens

ca02-333

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION IV

MICHAEL KEITH BEHRENS

APPELLANT

V.

CINDY BEHRENS

APPELLEE

CA 02-333

December 18, 2002

APPEAL FROM THE BENTON

COUNTY CIRCUIT COURT

[E 91-487-5]

HONORABLE DONALD R.

HUFFMAN, CIRCUIT JUDGE

REVERSED AND REMANDED

Appellant, Michael Keith Behrens, and appellee, Cindy Behrens, were divorced July 25, 1991. They have two children, Nicholas and Heath. As part of the divorce decree, appellant was ordered to pay into the registry of the court $55 per week as child support. In addition, it is apparently undisputed that the parties' settlement agreement obligated them each to be responsible for one-half of the children's medical bills that were not paid by insurance.

On August 14, 2001, appellee filed a "Petition for Citation for Contempt," alleging that appellant was in arrears on child support payments in the amount of $16,125 and that he also owed his share of the children's medical bills. Appellant answered by asserting the affirmative defense of equitable estoppel, claiming that he, appellee, and the children had lived together as a family unit from March 1992 until January 2001, with him contributing

to the running of the household and the children's support during that period. Following a hearing, the trial court found appellant to be in contempt and ordered him to pay $15,813 in child-support arrearages, $433.25 in medical bills, $1,581.30 in attorney fees, and $65.00 in costs. Appellant's point of appeal can be summarized as follows: That the trial court erred in determining the amount of child support owed by appellant because it did not address appellant's asserted defense of equitable estoppel in making its determination. We agree, and therefore reverse and remand.

At the hearing on appellee's petition, she testified that appellant paid child support until approximately 1994. She stated that "there were a couple of times since the divorce that [appellant] and I lived together." She said that his trailer burned and he lived with her from November 1996 to July 1997; that he did not make any house payments while he was living there; that he did not pay for any utilities; that he did pay for groceries a few times; and that he did not pay any child support during this time. She stated that "another time" they lived together was when she moved to the Northwest 12th Drive address in October 1997, where she remained until January 2001. She stated that the house was owned by appellant's mother; that she had her own room; and that appellant was to pay the rent and she would furnish the vehicle to drive, making the car payment and paying the insurance. She said that she bought the majority of the groceries and paid the phone bill; that in October 1998, she deposited $1,000 into appellant's mother's account for back rent; and that appellant paid no child support during this period. She stated that she paid the majority of the kids' medical bills and that she purchased a band instrument for her son.

Appellee testified that she did get a boat from appellant in January, but that he did not give it to her in lieu of child support. She stated that "[h]e didn't give me a boat. We traded a hot tub, a refrigerator, a dishwasher." She said that she sold the boat for $1,000. She also stated that she did not recall a cash payment from appellant of $1,000 in December 2000, but that she did receive $700. She stated that appellant paid most of the utilities on the home on 12th Street; that he paid for one-half of a television for Nicholas; and that he purchased a class ring for Heath. She said that she did not pay appellant any rent from October 1997 through January 2001.

Mary Livesey testified that appellant is her son; that appellant and appellee lived together almost constantly after the divorce; that they lived together in appellee's house and then moved into Livesey's house at the end of 1997; that appellant contributed to the home many times; that he bought a vehicle from Livesey for appellee, an old pickup truck that he is driving; and that at one time they wanted to purchase Livesey's house together as a family in 1997. Livesey testified that she told appellee, "I am not putting it in your name until you go to the court and sign a paper that says that he don't owe child support." She said that appellee responded, "I will not do that." Livesey testified that the family took many vacations together and that appellant did yard work around the house and even cared for appellee's mother's yard for three years.

Appellant testified that "the same day as the divorce we pretty much stayed together back and forth. We did this off and on since 1991." He said that there was never an agreement to be roommates; that he took the kids to school almost every morning and pickedthem up almost every evening. He stated that he was working when he lived in her house; that he was steadily employed during the period of time that he lived with her; that he provided support for the house, landscaped the lawn, mowed her mother's yard for two and one-half years, and purchased groceries. He said that all appellee had to do was pay the phone bill when they were together at his mother's house.

He stated that the first time they lived together, he paid for the children's tae-kwan-do; that he took them all to Panama City; that he bought the boys many things; that he purchased Heath a class ring; that he gave appellee $1000 in cash in December or January; that he got $10,000 from a settlement and gave part to appellee and took them on trips; that they went to Colorado; that he paid off the boat; and that he gave the boat to appellee in January, which was supposed to take care of child support until he could get his disability for an injury. He stated that he was not currently employed; that he is under a doctor's care; and that he cannot work and has no other income.

Appellant explained that he paid child support for three years after the divorce; that the triggering event that caused him to stop paying was "that Cindy [appellee] told me I didn't need to pay child support. More or less stopped paying, I took her word." He stated that he paid her a lot of money. "I [gave] her cash so she [wouldn't] get in trouble with the social security people."

Appellant also stated that appellee filled out an application concerning the purchase of a house in 1994, and that she told him, "I just did you a big favor here, I signed where it says that you don't owe me any more child support." This line of testimony drew an objection from appellee's counsel, and in colloquy with the court, appellant's counsel argued that such actions by appellee were relied upon by appellant to his detriment and supported his affirmative defense of equitable estoppel. The colloquy continued:

The Court: Well, you understand, though, that the current law is to the effect that the Court cannot set aside any judgment for child support and when child support is due it becomes judgment, even though it's not written down anywhere, and so his child support - - the way the record - - today's record indicates that he owes sixteen thousand - - or $15,813 in child support.

Mr. Gaddy: That's correct, your Honor, but - -

The Court: And the Court has no authority to set it aside. It will become judgment again. I have no authority to set it aside. The federal and state statutes are clear on that.

Mr. Gaddy: Judge, I do have the Ramsey case where this equitable defense was used after the fact that - - . . . child support was owed.

The Court: What year is that case?

Mr. Gaddy: It's a 1993. I also have a 2001 case, Barnes vs. Morrow, that relied upon the Ramsey vs. Ramsey decision and found that collateral [sic] estoppel was an affirmative defense.

The Court: Well, she's denied that she said these things, and then he's saying she said it, and she's saying, no, I didn't. So it's a case of credibility also, right?

Mr. Gaddy: That's correct, your Honor.

The Court: So I'll let you bring it in. I don't care. You can say whatever he believes or wants to testify to.

(Emphasis added.)

Following the testimony already described above, the parties rested and the court found in favor of appellee, making the following comments:

Now, Mr. Behrens, it seems to me that you're far too far in arrears for the Court to believe that you did anything except intentionally refuse to pay your child support, and this has been going on for years this on-again, off-again, you know, and then you claim one thing and then you claim another. So I think you should just go with the sheriff there and go out there. We'll get your situation clarified before you get out of jail.

This court reviews the findings of the circuit court to determine whether they are clearly against the preponderance of the evidence. City of Van Buren v. Smith, 345 Ark. 313, 46 S.W.3d 527 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. Due regard is given to the opportunity of the trial court to judge the credibility of the witnesses. Ark. R. Civ. P. 52(a).

In Hendrickson v. State, 77 Ark. App. 103, 106-07, 72 S.W.3d 124, 126-27 (2002), this court summarized the bases upon which the doctrine of equitable estoppel is applicable in child-support cases:

Once a child-support payment falls due, it becomes vested and a debt due the payee. Arkansas has enacted statutes in order to comply with federal regulations and to insure that the State will be eligible for federal funding. These statutes provide that any decree, judgment, or order which contains a provision for payment of child support shall be a final judgment as to any installment or payment of money which has accrued. Furthermore 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. While it appears that there is no exception to the prohibition against the remittance of unpaid child support, the commentary to the federal regulations which mandated our resulting State statutes, makes it clear that there are circumstances under which a court might decline to permit the enforcement of the child-support judgment.

.... The commentary to the federal regulations, which mandated our Ark. Code Ann. §§ 9-12-314 and 9-14-234 states:

[e]nforcement of child support judgments should be treated the same as enforcement of 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.

The elements of equitable estoppel are (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. This court has affirmed the use of equitable defenses to prevent the enforcement of child-support orders, including arrearages.

(Citations omitted and emphasis added.)

In Hendrickson, supra, the trial court refused to consider the doctrine of equitable estoppel. We concluded that the trial court erred in doing so, and we reversed on that basis alone. We therefore remanded the case to the trial court for further proceedings.

Here, similar to the situation in Hendrickson, supra, we find that the trial court did not address appellant's affirmative defense of equitable estoppel and that it was error not to do so. Also as in Hendrickson, supra, we do not hold that the doctrine of equitable estoppel should be applied in this case. That is for the trial court to decide. We hold only that it was error not to address the applicability of the doctrine.

Reversed and remanded for further proceedings consistent with this opinion.

Neal and Baker, JJ., agree.