*1 hеr An to do. what should have instructed CAPCA “it” is not discuss not sufficiently specific put admonition not “it” that she was to discuss. on notice of what Pacheco view, a reasonable mind could In our accept that Pacheco’s the conclusion evidence adequate of her intentional and deliberate violation constituted an actions the Board’s therefore hold We expectations. employer’s evidence, reverse substantial and we decision was supported further the case to the Board for and remand proceedings benefits. and duration of Pacheco’s determine amount Reversed and remanded. JJ., agree. Crabtree,
Hart
CHITWOOD
Gordon CHITWOOD
Jane
Matthews, Rhoads, McClure, & Campbell, Thompson Fryauf, P.A., David R. L. Matthews Sandra for by: appellee. Waddoups, Chitwood,
David M. Judge. Appellant,Jane Glover, Chitwood, were Gordon divorced decree 21,1993. children, entered on October two A.C. and They K.C. Tulsa, Oklahoma, moved with the children to Appellant subsequently and visitation ensued. In a problems 1999 letter to “I wrote: As appellant, appellee give up. your my per request, are surrendered and child hereby termi- support payments nated. You the children will see or never hear from me again.” For the next five did not see thе children years, appellee nor pay after that date until the current were initiated. proceedings 21, 2003, On filed a motion for April contempt in which she to have complaint money damages sought held in *4 and ordered to back child contempt support. Appellee to the order. At the it counter-petitioned modify was support hearing, $189,226 that the amount of accrued and stipulated arrearage that the amount of child to be to paid appellee appellant, 1, 2004, $4,512 a month. the beginning Following hearing June on the the matter trial court found that appellant prohibited by the doctrine of from collect to child- equitable estoppel seeking or to enforce support arrearages that any child-support judgment accrued the of date 2004. For sole through her May point contends trial court erred in appeal, that appellant finding the elements of appellee and thus erred in proved equitable estoppel her from on that barring recovering basis. child-support arrearage We and affirm. disagree matter, At the in this testified that hearing appellee his child ain fashion until
paid 1999. She timely January 24, 1999, stated on or about she received a February letter that he was which stated from dated and child-support payments rights surrendering parental she and further that neither her would terminated request, per hear him She see or again. nor the children would ever that, return, to her that she sent letter attorney explained research Arkansas received her “some regarding she from attorney termination of as it law pertained voluntary that based She testified upon release obligations.” child-support received, at the she believed time that she research legal of child owed a continuing obligation appellee visitation, never told him entitled to but that she continued to be her tax returns to She stated that she either claim both children as these changed things. after the child-support pay- dependents ments ceased. action for testified that she did file a contempt
Appellant in 1999 because her children were “emotionally child support felt as if had to choose drained” and she she between money stated that she borrowed her children’s mental She well-being. meet. from the bank make ends 24, 2001, that on she sent a August Appellant acknowledged her letter as letter to and she described stating parents, appellee’s that he could show that she did not think was serious and appellee at time to visit children. Shе told any grandparents up visit if there would be the children could with them overnight only no contact stated that she filed with She contempt appellee. financial to recover child action reasons primarily April because children and mature but also were older support, a with their father. She stated that handle enough she had never refused relationship visitation. action testified that there was contempt against Appellant it her not to her in 1997 and that was settled by agreeing prevent her efforts to visitation and to use best facilitate with appellee that she allowed visitation overnight visitation. She statеd with 18, 1998, until an on December children incident Tulsa, occurred in Oklahoma. She came that she Tulsa to exercise his visitation for Christmas and would allow children with him. denied that she She go at that time with visitation discussed with away “doing however, that and child She during acknowledged, support.” *5 1997, when was because incident appellee angry prior them, when came to that She testified that children’s were not he get suitcases ready said, them she don’t you give “Why just up?” she that when received letter “Per appellee’s began, she “did not have idea he what was your request,” any talking about.” She denied with her to discussing attorney, prior receiving letter, whеther she and could amake deal appellee to exercise visitation for whereby agreed appellee exchange child paying support. stated that both children had Appellant problems seeing father. their She said that A.C. had attacks and that panic visiting worse, with his dad made his he had anxiety “although anxiety a little and had continued to have She boy anxiety.” explained she a new house in 1999 and that she able just bought make house at first and she payments by borrowing money $350,000. then inherited around She stated that once most of the inheritance initiated the she action to re- depleted, cover She stated that outstanding appellee. filed, the time the action was she did not have enough money care take children. She that when that fact acknowledged was communicated to he began paying She also that in the again. letter that she acknowledged opinion received in 1999 from her one of the available attorney, options that was noted was for “to no child and in appellee return, exercise no visitation.”
With to the events of December respect testified that around the first of December she received a letter from in which he stated that he would exercise his appelleе Christmas visitation and that he would the children on pick up December 18 for of visitation. She stated that eight days prior time, had not exercised visitation with the overnight children for the seventeen months and that he previous had only exercised she visitation on limited daytime occasions. She stated that with him not to take the
pleaded children for eight days but that he told he her would of there nights, Friday them on pick up She visitation. stated that on eight days Friday, December she was to the house with the children in driving up car when she noticed that out backing She stated that she continued to drive to a driveway. friend’shouse she and the children into went the friend’s She house. followed them came the front door of the house. She stated that was not allowed in and did that she him visitation. She stated he filed action deny contempt her the against following Monday.
135 this matter. He at the in hearing also testified Appellee he was never his divorce from appellant, that following explained there the children without being to visitation with able exercise causedhim to He that controversies stated those some controversy. 1999. He ex- between and return court on occasions months a seventeen that there was period approximately plained not exercise whеn he did overnight to December 1998 prior he would He testified that times with the children. many visitation visitation, but different reasons would to exercise attempt unsuccessful. he would drive Okla- He stated that sometimes times, home, one and that at other and there would be no at homa well tell him that children were would feeling appellant son, for a visit. He his and did not want come explained A.C., and for his seen a anxiety being by psychologist for a until doctor doctor had asked visitation cease period he stated that was not her sessionswith A.C. Appellee completed until December 1998 that the sessions informed by appellant for thе seventeen- ended May accounting approximate visitation. month where he exercised limited period called him after she received testified Appellee appellant and that she his letter Christmas 1998visitation wanted concerning and to one and one visitation from modify days nights day eight He that he told her such a modified said arrangement night. not became He testified that she that she acceptable angry. visitation, him, asked don’t stop “Why you give up your paying alone,” us and then she and leave hung up. support, he at on arrived house Appellee explained appellant’s He December 18 аt five minutes before six o’clock in evening. car until 11:00 when he decided stated he would sat his p.m. bathroom, eat, to use the leave get something come back. He that as he was out of then stated pulling the house. He he saw children drive driveway, house, a that he followed her car to friend’s which was about said He that he went to the front door and three miles away. visitation, her his that she told told that he was there to exercise children, he and that there was him was taking nothing do it. that he called the that they could about He stated police, arrived, him and that told because were papers they Arkansas, do. He that he drоve there was could said nothing they action filed. home had contempt that the contents of the Appellee explained order, further entered a hamper- specialjudge visitation, “was the straw that broke the camel’sback.” He ing frustrated; stated he was that he saw no totally hope having children; with his and that he wrote the meaningful relationship letter, “Per in reference February to beginning your request,” December 1998 call. He testified that he appellant’s phone *7 the 1999 letter a thought and that he had no February represented binding agreement or
contact with the children after that appellant until date this action for child was He that initiated. said he did not know that was He child-support arrearage accruing. fall; he that believed that he was set take a that explained up on; knew was she that that everything wanted going just “to me out until ran she out her inheritance and then come play and hit me for all and that there nowas that he money”; way could back and that with time his children. go get testified that he has another from an
Appellee daughter earlier and that he has a marriage with her good relationship mother. He stated and that he has he that has exercised visitation with her always and continues to child and
paid college even it is no He also expenses, though longer required. explained he that continued to insurance for A.C. and K.C. provide coverage after he letter because did not trust appellant He to continue work. that was stated he not concerned about and the children’s condition because he knew appellant’s monetary that had “inherited an sum of appellant extremely large money from her father.” former testified
Appellant’s attorney after by deposition, waived the appellant received attorney-client privilege, 22, 1999, letter from dated March appellee’s attorney indicated that and agreed appellant appellant would no have longer visitation would no longer pay He stated that forwarded the letter to and had support. appellant conversations with her about substance letter. He time, an who worked for him at the explained attorney, a research memo whether could prepared relinquish concerning in fashion obligations drafted an letter to on attorney the same opinion appellant The research memorandum was dated subject. he May that it was his belief letter that was opinion sent would have followed of the memo- appellant preparation testified, however, randum. He further that he recalled discussing with notion visitation for before appellant swapping 19, 1999 letter received appellee’s February by appellant. wrote to letter that the attorney opinion an exhibit. It part: introduced as provided pertinent it our conference on Friday, during telephone As we discussed law, that an agreement is Arkansas reviewing after my opinion, for waiver of terminate parental rights exchange if an Arkansas court agreement not be enforced would fact, In my at a time. it is opinion later challenged i.e., voided, If thе agreement held never to have existed. would be enforced, that ajudgment would assert your attorney certainly is not should be entered Dr. Chitwood. against child support past-due However, you there that a court would award is no guarantee raise equitable as I Dr. Chitwood would past-due support suspect enter a him. against defensesin the court would not hopes judgment noted, If you The other can do you nothing. option, *8 visitation, is that is his so exercising problem Dr. Chitwood not are it. does support payments not Child long you denying once not make become individual he does make the judgments Therefore, can by collect them or you garnishment payments. an income order. withholding obtaining is trial court’s issues re A on ruling child-support court, are and the trial court’s viewed de novo this findings the of the disturbed unless are they clearly against preponderance 119, 92 evidence. v. 80 Ark. S.W.3d 64 (2002). State Burger, App. when, A there is evidence to is erroneous clearly although finding it, left the court on the entire evidence is with reviewing that mistake has been committed. a definite and firm conviction 318 356 Ark. 149 S.W.3d We (2004). v. give Rigsby Rigsby, the the trial to view and due deference to of court superior position the of the witnesses. Id. credibility judge due, it
Once a falls becomes child-support payment due Child vested and a debt the payee. Support of Enforcement Office However, Ark. (2003). S.W.3d King, App. are the treated same as enforcement child-support judgments of other and a enforcement judgments, judgment child-support all defenses that to other to the subject judgments. equitable apply Id. If to the court or administrative the authority obligor presents defense, or there be a basis for laches an may equitable-estoppel circumstances which the court or under administrative authority- will decline enforcement of the permit child-support judgment. Id. (1) elements the equitable estoppel party facts;
be must knоw the must intend that its (2) party estopped conduct on that shall acted or must so act the party asserting intended; to believe other so estoppel right party (3) facts; must be asserting ignorant (4) party estoppel must on the other conduct to asserting rely party estoppel party’s his detriment. Burger,supra.
The trial in court noted its order that specifically of the witnesses was the crucial factor in credibility case. The court deciding
made 1) that following pertinent findings: initiated the conversations appellant concerning agreement that would surrender his and terminate his appellee 2) was aware that an рayments; such child-support agreement unenforceable and void as against public policy Arkansas, but that she her words and intentionally, by especially by actions, her induced his visitation appellee give up privileges for her not to seek child exchange 3) support; had received advice on the appellant actions; of her legal consequences that she intended that her 4) conduct be acted upon intended; believed that she so appellee 5) facts; relied ignorant 6) upon appellant’s conduct detriment. In her decision announcing bench, the trial further judge detrimental reliance was not but rather that “let of five monetary, go that never made five years is of time that gets up, years [of visitation] five of time that just gone, years nobody gets recapture.” *9 We find no clear error with of the trial court’s respect any First, court, as noted the trial findings. was a by crucial credibility case, factor in this we and due deference to the trial court’s give Second, determinations. we hold that credibility the elements of were established. estoppel knew
(Í) the Appellant facts the knew that Appellant “agreement” by appel lee his gave up parental rights stopped making pay support ments enforceable and that the child-support obligations would continue to accrue. The of deposition appellant’s attorney the notion of he discussedwith disclosed believed appellant letter the visitation for February swapping before the and that he remembered discussing from distinctly letter with its concerning validity. February appellant Moreover, for the letter was subsequently prepared opinion law, an under Arkansas appellant for a waiver child terminate support parental rights exchange the and that would not be enforced courts judgment entered, child be but cau- would support presumably past-due that her raise defenses. tioned ex-husband might equitable actedon soact The intendthatitsconductshallbe ormust must (2) party hada to believetheother that theparty assertingestoppel right sointended party The trial court believed clearly testimony initiated the conversations by asking appellee give appellant visitation, and to leave them his child stop paying support, up that after The trial court also recognized alone. receiving 1999 letter from letter appellee opinion did not about her contact attorneys, paying appellant visitation, fact, and, in wrotе to the or about paternal later, assurances that two years grandparents requiring went would not allowed to visit children if to visit they believe that had every grandparents. right appellant Appellee it intended for her to have result that did. conduct mustbe (3) party assertingestoppel ignorantof facts testified that it his belief that the agree
Appellee ment relinquishing stopping child-support His conduct enforceable. testimony payments supported in that he did not see his children nor after the date Moreover, the letter until the trial court these proceedings began. he was not informed credited clearly appellee’s testimony about attorney invalidity agreement. Consequently, aware was not was legally factually aware that he was obviously accruing, regarding validity specifically sought legal opinions agreement.
140 on the must other
(4) party assertingestoppel rely party’s his
conductto detriment court, as noted trial the detriment in this Finally, Rather, case not is the is it amount of time that monetary. children, went without his which time seeing that can never be regained. Cameron, In Arkansas Human v. 36 Ark. Services Department of 105, 818 591 been S.W.2d which has overruled to a
App. (1991), case,1 limited extent under circumstances not in this applicable ex-husband, Cameron, Richard a consent signed consent his new husband adoption, giving appellant’s adopt child. testified that Cameron he stopped paying when he signed because he believed adoption papers the consent for had the effect of signing adoption terminating his He also visitation with parental rights obligations. stopped However, his child. was never he and was adoption completed, never informed that fact. The trial court found the mother because of her actions into man “’estopped into leading there was or was thinking to be an . . . from going adoption collecting arrearages 36 Ark. at support.’” App. S.W.2d at 593. court Our affirmed: Appellee testified him contacted concerning [the mother] wanted adoption and him He it sign consent. said was his that when understanding he he did with signed away his legalrights belief, because obligation pay support, and of this no longer sought exercise visitation We rights. believe these circumstances sufficient to establishthe elements of estoppel, and we say cannot the chancellor’sfindingis erroneous. clearly 36 Ark. at at S.W.2d 593. The situation App. presented Cameron, is similar to that here. supra, presented short,
In the trial court’s of fact in the findings instant case are not erroneous. Those clearly facts satisfy elements of Thе case law of this state holds that equitable estoppel. 1 SeeArkansas Human Servs. (1992) 311 Ark. Robinson, S.W.2d Dep’t of (Robinson that a court not do it is explains may indirectly direcdy prohibited doing, and that under RURESA, Arkansas court could not determine visitation direcdy it be nor could raised a defense; court therefore, held trial court could not supreme determine making visitation of child indirecdy payment support dependent upon visitation).
141 are treated the same enforcement of judgments child-support that a and enforcement of other judgments, child-support as all other defenses to to the apply subject equitable judgmеnt has Our court supreme including equitable estoppel. judgments, “a which a judicial remedy by defined party equitable estoppel a act or from right its own omission asserting by may precluded entitled, or or have been which it otherwise would to pleading 203, Ark. an fact.” R.N. 347 v.J.M., otherwise important proving 149, had source of 61 S.W.3d 157 (2001). Appellant large that she not receiv- available to her during money period so the children did not suffer child ing support Moreover, when these under these circumstances. proceedings that the and learned began dissipated, court, The trial began again. immediately support paying situation, in the invoked which was best evaluate position and we find no error in of judicial remedy equitable estoppel, done under the circumstances of this its so case. having Affirmed. JJ., Robbins, C.J.,
Pittman, Vaught, Crabtree, and agree.
Bird, Griffen, Neal, Baker, and dissent. JJ., I am the Because of Judge, dissenting. opinion
Olly Neal, failed to the third and fourth elements satisfy defense, to avail I himself of necessary equitable estoppel respect- neither that he was dissent. has fully Specifically, appellee proven of the to his facts nor relied on conduct ignorant appellant’s detriment. has determined that the made following majority ap- fact that of the accruing:
pellee ignorant support legally nor his conduct of neither his children (1) seeing paying support letter, his that it after the date of the was his belief (2) testimony his and relinquishing stopping enforceable, trial court’s (3) child-support payments credence to that he was not informed his appellee’s testimony I do about the attorney invalidity agreement. agree. minor A has a moral duty parent legal children, existence Ford v. of the order. See regardless Fonken, Ford, Ark. Fonken 334 (2002); 65 S.W.3d Neither dissolution (1998). Ark. S.W.2d 952 tie, children, nor either
marriage awarding custody perma- mother, or to the relieves the father of his nently temporarily, Here, them. Id. actions obligation appellant’s telling reliance “just give up,” [the kids] him of insufficient relieve moral thereupon, legal to his children. when the minor Even obligation support obliga- contract, tion be affected cannot be bartered may duty away Fonken, to the detriment of the child. See Fonken v. permanently supra. *12 knew that the court had ordered him to
Appellee Thus, in $6095.92 each month for two his children. he was support in not of the facts See v. instance. State 80 Ark. ignorant Burger, 119, 92 64 S.W.3d (2002) not App. (equitable estoppel because of the fact that applicable part appellee ignorant Furthermore, he had not court-ordered child not- paid support). the existence of an withstanding between him and “agreement” a continued to have moral appellant, appellee duty provide for his It is children. clear from the facts of this case that continues to appellee recognized duty. Appellee provide for his older from a “as daughter well as marriage, previous and all other college living expenses expenses,” regardless fact that she has reached of no there age majority longer exists an order. His is further recognition evidenced continued insurance he for coverage A.C. K.C. and provides sent a by appellant’s testimony appellee child-support pay- ment in of 2004 of $2950. amount The submission January was, of this after wrote payment notably, February 1999 letter in which he to “surrender” his agreed parental rights and “terminate” his child support payments. has also failed to he show that relied on
Appellee appellant’s conduct to his detriment. trial court and this court recognize that the detriment in this case is not but is the amount monetary children, time that with has lost his is time can extent; never be I can with this notion to some regained. agree however, I cannot find where exercised his appellee regularly visitation to the 1999 prior “agreement.” Appellee that, a acknowledged seventeen period approximately 1998, letter, months to December of before he prior writing did not exercise visitation with the children. regularly Many times, he would drive the four-hour round explained, trip
143
Tulsa,
reason or another.1
to be denied visitation for one
only
this, however,
knew
obviously
Notwithstanding
a
because he had
filed
seek court intervention
could
previously
him
for her refusal to allow
proceeding against appellant
contempt
in 1998.
visitation with the children for Christmas
Regard-
proper
less,
upon
dependent
payment
Robinson,
v.
311 Ark.
his visitation with the children. SeeState
havе availed himself of all
could
(1992).
842 S.W.2d
Appellee
to enforce
visitation rights.
judicial processes
a matter of
it is
contention
my
Additionally,
public policy,
with the same force in
should not
equitable estoppel
apply
matters such as these where
have a third
minor
(the
you
party
involved and for whose benefit the child
child)
support payments
children,
inure. An order
is for the benefit of
even
of support
it is directed to be
to the mother or other custodian.
though
paid
Harris,
Child
87 Ark.
App.
Support
Officeof
Enforcement
Miller,
S.W.3d 120
Millerv.
It that a is not sufficient court be made aware of compromise rather, and that it the court agreement agreeable guardian; must make a act of into the merits of the judicial investigation and into its benefits to the Any by minor. compromise judgment court that a minor’s interest without the compromises requisite is void on its face. investigation 355-56,
Id. at at 651-52. has S.W.2d Although equitable estoppеl been used in other instances such as this where the reach an parties determining I in In has not the elements of proven equitable estoppel, thwarted no mean to endorse the tactics used She way appellant. obviously visitation on and she was not innocent in this situation. She knew occasions, many entirely “agreement” forego seeking child unenforceable; nevertheless, was she chose to with their until such time that she felt the children were to exercise visitation ready support Regardless burden this, father. I do not condone such conduct. did not meet his proving the third and fourth elements of equitable estopрel. Truman, to cease seeTrumanv.
agreement
256 Neb.
support,
N.W.2d 81
(1999) (custodial
neither she nor the
agreed
parent
non-custodial
would be
to each
parent
obligated
pay
support
other because
both
of one
In
child);
re
Harms
custody
Marriageof
Harms,
v.
174 Wis. 2d
Here, the evidence indicates that the children have may been affected. Unlike adversely situation in State v. Leo Stephen S., where the children received supra, financial from their Crouse, Thomas who contracted step-father, under an express such on behalf of the provided father,2 non-custodial and where the record did not disclose that the children were ever of their financial needs due to deprived any default Thomas Crouse in such meeting obligation, appel- lant in this case underwent some financial difficultiеs. Appellant testified that: 2 In State v. Leo S., custodial decided Thomas Crouse Stephen supra, parent marry
while that same her ex-husband and the non-custodial decided to year Crouse’s parent marry *14 ex-wife, Sharon Crouse. Thomas and Sharon Crouse had three children from their marriage. remarriage Prior to the of the four individuals, each executed an they to absolve the non-custodial father of child purported custodial support payments agreement,Thomas Under the obligated Crouse was for the parent. provide non-custodial father’s In agreed turn, two children. the non-custodial father provide оfThomas’s three children. I initiated of the inheritance majority depleted, Once the time child support. By the action to recover outstanding filed, care of I have to take enough money the action was did not the children. children have not been named
I further note that the extent that the two children of in this matter. To parties to assert have wish any right they may past parties capable they presumptively obligations law action their father. Our an against independent bringing that, file a turns he or she once eighteen, may provides from the to collect non-supporting parent. unpaid support petition Ann. 9-14-105(c) 2002). See Ark. Code (Repl. § Griffen, Bird, and Baker I am authorized to state that Judges in this dissent. join
Mark TURBYFILL v. STATE of Arkansas CA CR 04-958 S.W.3d 557 Arkansas Court of Appeals 29, 2005 delivered Opinion June