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02/27/90 VICKIE ANN FORD SIMMONS CAYWOOD v. ROBERT

COURT OF APPEALS OF TENNESSEE, EASTERN SECTION


February 27, 1990

VICKIE ANN FORD SIMMONS CAYWOOD, PETITIONER/APPELLANT,
v.
ROBERT C. SIMMONS, RESPONDENT/APPELLEE

From the Law Court, Hamilton County, HONORABLE SAMUEL H. PAYNE, JUDGE.

E. Riley Anderson, Judge, Clifford E. Sanders, P.j. [e.s.], Herschel P. Franks, J., Concur.

The opinion of the court was delivered by: Anderson

E. Riley Anderson, Judge

The sole issue in this case is whether Tenn. Code Ann. § 36-5-101(a)(5) bars the trial court from forgiving accumulated child support arrearages. We conclude that it does and, therefore, reverse and remand.

FACTS

Vickie Simmons Caywood and Robert C. Simmons were married on September 30, 1977, and divorced on March 11, 1980. The final decree of divorce provided that the husband should pay to the wife $36.75 per week beginning on March 1, 1980, for the care, support and maintenance of the parties' minor child, Misty Blaze Simmons, who was born May 19, 1978.

On April 17, 1989, an application for a show cause order was filed by the wife in the Circuit Court for Hamilton County, contending that total support arrearage at that time amounted to $17,064.25. The record shows no response by the husband to the application. The husband did file a petition on May 18, 1989, to modify the final decree by requesting visitation rights, but no mention was made of the show cause application. On June 19, 1989, the court held a hearing and awarded the wife a judgment for $1,680 against the husband for child support arrearage, but provided it be paid at the rate of $3 per week. Provisions for further support and visitation were made.

A motion to reconsider was filed by the wife, contending that the court erred in forgiving the child support arrearage in the amount of $15,350 and citing Tenn. Code Ann. § 36-5-101(a)(5). The court overruled the motion to alter, amend, or vacate the judgment. In so doing, the trial Judge quoted Justice Drowota of the Supreme Court as saying "Tennessee law does not absolutely prohibit forgiveness of arrearage in child support. Trial courts have discretion to suspend or forgive arrearages of court payments when enforcement unduly benefits parties whose wrongful conduct created a problem, or when both parties share in fault." The trial Judge concluded the duty of support is on both parties and "she has a responsibility to let me know when he doesn't pay or whatever Judge it is so we can do something about it, but they don't do it. And then they come in when he says I want to visit and then she says wait a minute . . . . That is unclean hands. Equity doesn't allow that at all." This transcript makes it clear the trial Judge reduced the child support arrearage for equitable reasons.

The scope of our review is de novo with no presumption of correctness for the trial court's Conclusions of law. Adams v. Dean Roofing Co., 715 S.W.2d 341 (Tenn. Ct. App. 1986); Billington v. Crowder, 553 S.W.2d 590 (Tenn. Ct. App. 1977).

The wife appeals, contending Tenn. Code Ann. § 36-5-101(a) controls and the court erred in reducing the child support arrearage. The Tennessee Legislature amended Tenn. Code Ann. § 36-5-101(a) by adding a new subsection:

Any order for child support shall be a judgment entitled to be enforced as any other shall be entitled to full faith and credit in this state and in any other state. Further, such judgment shall not be subject to modification as to nay time period or any amounts due prior to the date that an action for modification is filed and notice of the action has been mailed to the last known address of the opposing party.

(Supp. 1989) (emphasis added). The Tennessee Attorney General's office explains the effect in Opinion No. 87-162:

The effect of the 1987 amendment is to remove the distinctions between final judgments for delinquent support and less than final judgments for delinquent support by providing that a child support order is to be treated as an enforceable judgment. While such an order is subject to prospective modification, as to payments not yet due upon the filing of an action for modification, it is no longer subject to retroactive modification as to amounts already due upon the filing of a petition to modify. The amendment thus brings Tennessee into compliance with federal law.

(emphasis added). Since the enactment of this amendment, this Court has consistently held that the trial court no longer has the authority to forgive child support arrearages due at the time of filing of a petition to modify child support.

In Aubin v. Aubin, No. 88-230-II (Tenn. Ct. App. filed Feb. 10, 1989, This Court reaffirmed the retroactive application of Tenn. Code Ann. § 36-5-101(a)(5) and stated that the petitioner "simply waited too long to seek relief until the Court no longer had power to grant retroactive relief." Id. at 8. In Bloom v. Bloom, 769 S.W.2d 491 (Tenn. Ct. App. 1988), this Court commented:

The statute clearly renders orders for child support judgments "entitled to be enforced as any other judgment of a court of the state" and removes the power of modification from the courts for any amounts due prior to the date an action for modification is filed.

Id. at 492. See also Goins v. Shelton, No. 870 (Tenn. Ct. App., filed Sept. 13, 1989); Rutledge v. Barrett, No. 88-350-II (Tenn. Ct. App. filed July 19, 1989).

When quoting Justice Drowota, the trial court is undoubtedly referring to the case of Hoyle v. Wilson, 746 S.W.2d 665 (Tenn. 1988). However, the trial court's reliance on Hoyle is misplaced. The 1987 amendment was not effective at the time of Justice Drowota's statement in Hoyle.

We conclude the statute controls and that the equitable doctrine of laches or unclean hands is not an available defense for the reduction of arrearage in child support in this case. Accordingly, we reverse the trial court's judgment and remand for the entry of a judgment in favor of the plaintiff in the amount of $17,064.25 against the defendant, Robert C. Simmons. The costs of this appeal are assessed against the Appellee, Robert C. Simmons.

19900227

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