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

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. ยง 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 ...


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