Kuykendall v. Wheeler

890 S.W.2d 785, 1994 Tenn. LEXIS 353
CourtTennessee Supreme Court
DecidedDecember 5, 1994
StatusPublished
Cited by41 cases

This text of 890 S.W.2d 785 (Kuykendall v. Wheeler) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kuykendall v. Wheeler, 890 S.W.2d 785, 1994 Tenn. LEXIS 353 (Tenn. 1994).

Opinion

OPINION

BIRCH, Justice.

The Court of Appeals affirmed the trial court’s order that required Billy Ray Kuyk-endall, the appellant, to satisfy a judgment for child support arrearage by installment payments. This ruling was made despite the fact that Kuykendall’s child support obligation had been terminated by the trial court *786 on January 8, 1990, approximately eighteen months before entry of the installment order.

We accepted the Rule 11, Tenn.R.App.P. application filed by the appellant in order to determine whether the trial court may enforce its judgment for arrearage by ordering the judgment obligor to pay the judgment by installments after the subject children have attained majority. We find that after the children have reached majority, a judgment for arrearage may not be enforced through an order for installment payments.

I

The facts in this case are few and undisputed. The record establishes that Billy Ray Kuykendall and Esta Mae Kuykendall 1 were married on May 4, 1962, in Greene County. Three children were born to them: Lorie Ann (bom July 9, 1964), Billy Ray, Jr. (bom October 7, 1966), and Angela Gale (bom September 28, 1971).

Pursuant to a divorce decree entered May 8, 1980, Wheeler was awarded custody of the three children. For their support, Kuyken-dall was ordered to pay a total of $40 weekly. Over the years, Wheeler has filed several contempt petitions alleging Kuykendall’s failure to comply with the child support order. On January 8, 1990, the trial court found Kuykendall to be $7,705.56 in arrears and entered judgment against him for that amount. The order recited that the minor children had reached majority and “no current support is due.” On June 6, 1992, the trial court considered the State’s 2 petition for extraordinary relief and ordered Kuyken-dall to pay the $7,705.56 in monthly installments of $60. Kuykendall chiefly contends that the trial court lacked the authority to enforce payment of the arrearage judgment by installments, considering the circumstances here presented. Specifically, he asserts that the arrearage judgment is enforceable only by the standard methods used to enforce other money judgments; he insists that an order for installment payments is not among those standard methods.

II

The trial court’s authority to enter the 1980 order for child support is not questioned. Tenn.Code Ann. § 36-5-101(a)(l) (1980). Unquestioned also is the trial court’s continuing authority regarding child support for as long as the children are minors. Sutton v. Sutton, 220 Tenn. 410, 417 S.W.2d 786 (1967). Under this authority, the trial court could, while the children were minors, order installment payments and enforce this order by contempt proceedings. Tenn.Code Ann. § 36-5-101(a)(2) (1991 & Supp.1994); Sowell v. Sowell, 493 S.W.2d 86, 87 (Tenn.1973); Penland v. Penland, 521 S.W.2d 222, 224 (Tenn.1975).

The crucial question, however, is whether this authority survives the childrens’ majority to the extent that the trial court may enforce a prior judgment for support arrearage by ordering it to be paid by installments.

Prior to July 1, 1994, 3 after a child reaches the age of eighteen the accrued support was enforceable only as a money judgment. The fact that a child has reached the age of eighteen does not relieve a parent from liability based upon unpaid child support payments. The prevailing view is that accrued child support payments take on the form of a debt and become enforceable as money judgments even though the obligation to support the child is over.

In Tennessee, money judgments are enforceable by execution, garnishment, and judgment liens. Tenn.Code Ann. § 26-1-103 (1980); John C. Baugh, Enforcement of Judgments in Tennessee, 22 Tenn.L.Rev. 873 (1953); Lonnie C. Rich, Enforcing Money Judgments in Tennessee, 4 Mem.St.Univ. L.Rev. 65 (1978). If the judgment creditor is unable to collect the judgment by legal exe- *787 eution or garnishment, then the creditor may seek the aid of the chancery court. Tenn. Code Ann. § 16-11-104 (1994). The chancery court has the power to subject the property of the judgment debtor which cannot be reached by legal execution to satisfaction of the judgment. Gibson’s Suits in Chancery § 456 (7th ed. 1988). However, the chancery court has no authority to order a judgment debtor, upon motion of the judgment creditor, to make payments in installments out of the income which he receives. John C. Baugh, Enforcement of Judgments in Tennessee, 22 Tenn.L.Rev. 873 (1953). 4 Thus, we hold that the trial court erred in ordering Kuykendall to pay the arrearage judgment by means of installment payments.

Our holding does not restrict the power of the trial court to enforce its orders and decrees, for its inherent power to do so assuredly remains intact. Tenn.Code Ann. § 21-1-804 (1994); Clinchfield Stone Co. v. Stone, 36 Tenn.App. 252, 254 S.W.2d 8 (1952); Gibson’s Suits in Chancery § 300 (7th ed. 1988). However, in exercising this power, the trial court, as always, must use only those means which have been granted by the legislature or common law tradition. In this case we find that when enforcing a money judgment, trial courts have the power to issue an installment payment order only upon motion of the judgment debtor or by agreement. See Tenn.Code Ann. § 16-11-104 (1994); Gibson’s Suits in Chancery § 456 (7th ed. 1988).

Ill

On April 21, 1994, the legislature enacted House Bill no. 2526, substituted for Senate Bill no. 2805, now codified. This legislation, among other things, added subsection (k) to Tenn.Code Ann. § 36-5-101, which now provides for the survival of a child support arrearage judgment beyond its usual termination and for its collection by extraordinary means. This legislation became effective July 1, 1994.

We must now consider whether this statute has retroactive effect. Tenn.Code Ann. §

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890 S.W.2d 785, 1994 Tenn. LEXIS 353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuykendall-v-wheeler-tenn-1994.