Roark v. Roark

809 S.W.2d 822, 34 Ark. App. 250, 1991 Ark. App. LEXIS 302
CourtCourt of Appeals of Arkansas
DecidedMay 22, 1991
DocketCA 90-310
StatusPublished
Cited by22 cases

This text of 809 S.W.2d 822 (Roark v. Roark) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roark v. Roark, 809 S.W.2d 822, 34 Ark. App. 250, 1991 Ark. App. LEXIS 302 (Ark. Ct. App. 1991).

Opinions

James R. Cooper, Judge.

The appellant in this child support case is the mother and the custodial parent of the parties’ three children. She and the appellee were divorced on January 16, 1989, pursuant to a divorce decree which granted the divorce to the appellant, gave her custody of the three minor children, provided visitation privileges for the appellee, and required that the appellee pay child support in the amount of $440.00 per week. On February 2,1990, the appellee filed a petition for modification of the decree, requesting, among other things, modification of child support. The appellant filed a counterclaim, petitioning for modification of the decree and seeking to collect past due child support. On March 26, 1990, a hearing was held and the chancellor entered an order finding that neither of the parties had complied with the divorce decree and that both parties were estopped from raising the issue of back support. Additionally, he modified the child support required to be paid by the appellee from $440.00 per week to $62.00 per week. From that decision, comes this appeal.

The appellant advances two arguments on appeal: first, that the trial court erred in finding that she was estopped to raise the issue of the appellee’s failure to pay child support and that there was no child support due on the ground of estoppel and; second, that the trial court erred in modifying the amount of child support in the absence of a showing of changed circumstances. We disagree with the appellant’s arguments and affirm.

Although we review chancery cases de novo, we do not disturb the chancellor’s findings unless they are clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a). Because the question of the preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the chancellor’s superior opportunity to assess credibility. Callaway v. Callaway, 8 Ark. App. 129, 648 S.W.2d 520 (1983).

The appellant argues that the trial court erred in finding that she was estopped to raise the issue of the appellee’s failure to pay child support. Once a child support payment falls due, it becomes vested and a debt due the payee. Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487 (1987). Arkansas has enacted statutes in order to comply with federal regulations and to insure that the State will be eligible for federal funding. Sullivan v. Eden, 304 Ark. 133, 801 S.W.2d 32 (1990); see Ark. Code Ann. §§ 9-12-314 and 9-14-234 (Repl. 1991). 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. Ark. Code Ann. § 9-14-234(a) (Repl. 1991); Ark. Code Ann. § 9-12-314(b) (Repl. 1991); see Sullivan v. Eden, supra. 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. Ark. Code Ann. § 9-14-234(b) (Repl. 1991); Ark. Code Ann. § 9-12-314(c) (Repl. 1991); See Sullivan, supra. 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 states:

[enforcement 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.

54 Fed. Reg. 15,761 (April 19, 1989).

In the case before us the chancellor declined to permit the enforcement of the child support judgment claimed by the appellant on the ground that the appellant was estopped because she had disregarded the divorce decree and had interfered with the appellee’s visitation rights. The chancellor determined that both parties ignored the initial divorce decree and were thereby estopped from raising the other’s non-compliance in order to receive any relief. The chancellor based his ruling on the principle that both parties, by their own conduct, had barred themselves from the aid of equity. See Pence v. Pence, 223 Ark. 782, 268 S.W.2d 609 (1954). We think that the chancellor’s action was grounded in the maxim that he who comes into equity must come with clean hands.

This maxim is not applied to favor a defendant, and has nothing to do with the rights or liabilities of the parties, but is invoked in the interest of the public on grounds of public policy and for the protection of the integrity of the court. 30 C.J.S. Equity § 93 (1965); see gen. Estate of Houston v. Houston, 31 Ark. App. 218, 792 S.W.2d 342 (1990). Whether the parties are within the application of the maxim is primarily a question of fact and there must be some evidence to justify the application of the doctrine by the court. 30 C.J.S. Equity § 93 (1965).

The chancellor, in determining from the evidence that the court should refuse to recognize the past due child support, based his decision on the appellant’s testimony referring to the children as “my babies,” her silence when asked to concede the fact that they were also the appellee’s children, and her response that she felt that the children are hers and that the appellee is the reason the children see a counselor. The chancellor also considered letters from the appellant to the appellee telling him to leave the children alone, that she did not want him calling the children or coming to see them, that the police would be waiting for him when he returned and would put him in jail, and that she had sold property he left behind and kept the money.

Although there was testimony from the appellant that she did not deny visitation, that she offered to take the children to see him, and that the appellant broke several promises to visit, we cannot say that the chancellor’s determination that the appellant was estopped from asserting and collecting past due child support in a court of equity was clearly against the preponderance of the evidence. On these facts, the chancellor could find unclean hands and properly decline to enforce the judgment. See Marshall v. Marshall, 227 Ark. 582, 300 S.W.2d 933 (1957).

We disagree with the appellant’s argument that the trial court erred in modifying the amount of child support in the absence of a showing of changed circumstance because the record is replete with evidence showing changed circumstances. The party seeking a modification of child support has the burden of showing changed circumstances, and chancery courts have broad powers to modify child support when modification is in the best interest of the child. Guffin v. Guffin, 5 Ark. App.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Morehouse v. Lawson
206 S.W.3d 295 (Court of Appeals of Arkansas, 2005)
Office of Child Support Enforcement v. King
100 S.W.3d 95 (Court of Appeals of Arkansas, 2003)
State, Office of Child Support Enforcement v. Burger
92 S.W.3d 64 (Court of Appeals of Arkansas, 2002)
STATE, CHILD SUPPORT ENFORCEMENT v. Burger
92 S.W.3d 64 (Court of Appeals of Arkansas, 2002)
Martin v. Martin
87 S.W.3d 817 (Court of Appeals of Arkansas, 2002)
Hendrickson v. State ex rel. Henderson
72 S.W.3d 124 (Court of Appeals of Arkansas, 2002)
Word v. Remick
58 S.W.3d 422 (Court of Appeals of Arkansas, 2001)
Shroyer v. Kauffman
58 S.W.3d 861 (Court of Appeals of Arkansas, 2001)
Barnes v. Morrow
43 S.W.3d 183 (Court of Appeals of Arkansas, 2001)
Littles v. Flemings
970 S.W.2d 259 (Supreme Court of Arkansas, 1998)
James v. James
914 S.W.2d 773 (Court of Appeals of Arkansas, 1996)
Tortorich v. Tortorich
902 S.W.2d 247 (Court of Appeals of Arkansas, 1995)
Ramsey v. Ramsey
861 S.W.2d 313 (Court of Appeals of Arkansas, 1993)
Burnett v. Burnett
855 S.W.2d 952 (Supreme Court of Arkansas, 1993)
JEFFERSON CTY. CHILD SUPPORT v. Robinson
842 S.W.2d 47 (Supreme Court of Arkansas, 1992)
Belue v. Belue
828 S.W.2d 855 (Court of Appeals of Arkansas, 1992)
Grable v. Grable
821 S.W.2d 16 (Supreme Court of Arkansas, 1991)
Arkansas Department of Human Services v. Cameron
818 S.W.2d 591 (Court of Appeals of Arkansas, 1991)
Roark v. Roark
809 S.W.2d 822 (Court of Appeals of Arkansas, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
809 S.W.2d 822, 34 Ark. App. 250, 1991 Ark. App. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roark-v-roark-arkctapp-1991.