Smith v. Smith
| Docket Number: | 2008-CA-00683-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 10-29-2009 Opinion Author: Pierce, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Contempt - Child support arrearage - Credits Judge(s) Concurring: Waller, C.J., Carlson, P.J., Dickinson, Randolph, Lamar and Kitchens, JJ. Concur in Part, Dissent in Part 1: Chandler, J. with separate written opinion. Concurs in Result Only: Graves, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 03-25-2008 Appealed from: RANKIN COUNTY CHANCERY COURT Judge: Dan Fairly Disposition: The Chancellor accepted the findings by the special master that Sandra was entitled to a credit of $14,000 for sums Sandra allegedly had withheld from her paycheck and for the time the child allegedly had lived with Sandra. Case Number: 29,835 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | KENNETH E. SMITH |
JULIE ANN EPPS, E. MICHAEL MARKS |
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| Appellee: | SANDRA K. SMITH | SANDRA K. SMITH (PRO SE) | ||
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| Topic: | Contempt - Child support arrearage - Credits |
| Summary of the Facts: | Kenneth Smith and Sandra Smith were granted a divorce. Sandra was ordered to pay $125 per month in child support to Kenneth. Kenneth later filed a petition for contempt alleging that Sandra owed $24,000 in past-due child support. Sandra conceded at trial that she was in contempt but claimed a credit against the $24,000 arrearage. The family master found that Sandra was entitled to a credit of $14,000 for sums Sandra allegedly had withheld from her paycheck and for time the child allegedly had lived with Sandra. Based on the credits allowed by the family master, Sandra was found to be in civil contempt of court and to owe a balance of $10,000 in child-support arrearage. In addition, he awarded attorney’s fees and court costs to Kenneth. These findings were accepted by the chancellor, becoming a judgment of the trial court. Kenneth appeals. |
| Summary of Opinion Analysis: | Court-ordered child-support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid. However, the noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court. At trial, Sandra conceded a prima facie case for contempt. Despite being less than diligent in her efforts to pay, Sandra, however, disputed two time periods totaling approximately five years that she argues should be credited against her judgment. The trial court obviously was of the opinion that Sandra had met her burden to receive credits for these two time periods. Sandra alleges that from March 1991 until November 1994, her employer Ram-Fab withheld $35 per week to be paid to Kenneth for child support. Sandra, however, provided no documentation, no tax forms, no letter from her employer, no corroborating witnesses, no written, printed, or copied evidence to prove this allegation. Sandra’s testimony alone does not meet the burden of proof required of her to receive a credit for amounts she claimed were withheld from her paycheck. Simply put, the noncustodial parent must present more than uncorroborated verbal testimony to receive credit against an alleged child-support arrearage. Therefore, Sandra should not have been given credit for the alleged $35-per-week garnishment by her Arkansas employer. Sandra also received credit for two years when she claimed the couple's daughter resided with her. If, in fact, the daughter had resided with Sandra for those two years, and Sandra had offered proof showing she had paid the support directly to or for the benefit of the child, she would have been entitled to a reduction in child support, because it would have, in effect, already have been given or provided for the child, who is the sole beneficiary of the support. Sandra provided only testimonial evidence that her daughter had lived with her. When Kenneth and the daughter testified, both conceded that the daughter had spent time with Sandra outside the scope of visitation but disputed the claim that her residence was at Sandra’s home. Thus, Sandra did not meet her burden. There may be times where testimony alone is sufficient. However, such was not the case here, as there was a lack of adequate proof. This matter is remanded to the chancellor to reassess Sandra’s arrearage obligation. |
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