Fowler v. Hendrix
2016 Ark. App. 7
| Ark. Ct. App. | 2016Background
- Kimberly Fowler and Kenneth Hendrix divorced in 2006; their settlement (incorporated in the decree) provided joint custody, Hendrix as primary custodial parent, and said "no child support to be paid by either party," while assigning certain shared expense duties to both parents.
- A September 10, 2007 agreed order put Fowler’s visitation in abeyance and stated any support requirement in paragraph 2 of the settlement was terminated, but said support would resume if visitation was re-established.
- An April 5, 2010 agreed temporary order reinstated visitation for Fowler and expressly ordered her to pay $500/month child support commencing April 1, 2010; it also allowed either party to request a reset for final trial.
- Fowler paid child support from April–October 2010, then stopped paying because she voluntarily ceased visitation with her daughter (per counseling) and believed the 2007 order made support contingent on visitation.
- Hendrix filed a petition for contempt in January 2015 alleging willful failure to pay support; after a February 24, 2015 hearing the circuit court found Fowler in contempt, entered judgment for arrearage plus fees and costs, and Fowler appealed.
Issues
| Issue | Plaintiff's Argument (Hendrix) | Defendant's Argument (Fowler) | Held |
|---|---|---|---|
| Whether Fowler was in contempt / liable for child support after she stopped visitation in Oct. 2010 | Order of April 5, 2010 clearly required Fowler to pay $500/month; she failed to pay, so contempt and arrearage judgment proper | The 2007 order made child support contingent on visitation and that contingency remained in effect; April 2010 did not expressly modify that contingency | The April 5, 2010 order modified prior orders and unambiguously imposed noncontingent monthly support; contempt and arrearage judgment affirmed |
| Whether equitable estoppel bars Hendrix from collecting arrearage | N/A (plaintiff seeks enforcement) | Hendrix’s conduct (delay in seeking arrears; allegedly frustrating visitation) estops him from collecting arrears | Fowler failed to prove estoppel: delay alone does not bar collection; she voluntarily ceased visitation and did not seek court relief; estoppel rejected |
Key Cases Cited
- Omni Holding and Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (standard for civil contempt review)
- Applegate v. Applegate, 101 Ark. App. 289, 275 S.W.3d 682 (contempt requires willful disobedience and clear, definite order)
- Chitwood v. Chitwood, 2014 Ark. 182, 433 S.W.3d 245 (child-support cases reviewed de novo; factual findings reversed only if clearly erroneous)
- State Office of Child Support Enf’t v. Burger, 80 Ark. App. 119, 92 S.W.3d 64 (equitable defenses may bar enforcement of child-support orders)
- Benn v. Benn, 57 Ark. App. 190, 944 S.W.2d 555 (delay in pursuing past-due support does not alone prevent later collection)
- Cunningham v. Cunningham, 297 Ark. 377, 761 S.W.2d 941 (similar principle that delay does not extinguish right to pursue arrears)