Lead Opinion
|!Appellant, Kylie B. Chitwood, appeals the order of the Benton County Circuit Court granting summary judgment to her father, Appellee, Gordon G. Chitwood, Jr., on her complaint to collect an alleged ar-rearage for child support accrued during the period of February 19, 1999, to May 31, 2004. The order appealed from also dismissed as moot Appellee’s third-party complaint for indemnification against Appellant’s mother, Jane Chitwood. For reversal, Appellant contends that the circuit court erred in two respects. First, Appellant asserts that the circuit court erred in ruling that no arrearage existed because her mother was equitably estopped from collecting the support in a previous lawsuit.- Second, Appellant asserts that the circuit court erred in finding that her needs were met during the challenged period. This is a subsequent appeal, and jurisdiction is properly in this court pursuant to Arkansas Supreme Court- Rule 1-2(a)(7) (2013). Chitwood v. Chitwood,
|2The record reflects the following. Appellant was born on October 1, 1990, during the marriage of Appellee and Jane Chitwood. She was the second child born of the marriage, as Appellee and Jane Chitwood also had a son born on September 23,1987. Appellee divorced Appellant’s mother in October 1993, and was ordered to pay child support for both children. On July 26, 2011, Appellant, then age twenty, filed a complaint against Appellee to collect an alleged arrearage in child support that had accrued from February 19, 1999, to May 31, 2004. On August 30, 2011, Appellee filed a third-party complaint against Appellant’s mother seeking indemnification from her should he be required to pay the alleged arrearage.
On February 23, 2012, Appellee filed a motion for summary judgment, arguing primarily that Appellant’s complaint was barred under the law-of-the-case doctrine, based on previous litigation wherein he had prevailed against Jane on her claim for unpaid child support for the same period. Chitwood v. Chitwood, 92 ArkApp. 129,
We dismissed Appellant’s first appeal for lack of a final order. Chitwood,
The Chitwood children’s needs were met during the period of time when [Appel-lee] was not paying child support pursuant to his belief that an agreement had been made that no child support would be due and owing and he would have no relationship with the children. This factual situation was fully resolved by the Court in Chitwood v. Chitwood, CA-04-996 and on appeal in Chitwood v. Chitwood,92 Ark.App. 129 [,211 S.W.3d 547 ] (2005).
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5. The Court finds that at this point in time, to require [Appellee] to provide funds to [Appellant] would be inequitable.
6. Because there was no arrearage during the period of time for which an arrearage is sought in this Complaint and because there is no arrearage today, the entry of an Order of Summary Judgment is ordered.
Appellant timely appealed from the foregoing order, which was final because it dismissed the third-party complaint as moot.
We review child-support cases de novo on the record, and we do not reverse a finding of fact by the circuit court unless it is clearly erroneous. Hall v. Hall,
Appellant’s first point for reversal of the summary judgment is essentially a challenge to the circuit court’s finding that there was no arrearage because Appellant’s mother was estopped from pursuing the same claim in a previous lawsuit. Appellant argues that the equitable-estoppel defense that Appellee had used successfully in the earlier lawsuit filed by her mother cannot be asserted in this case because Appellee has not presented any facts necessary to satisfy the elements of equitable estoppel against Appellant. Relying on Fonken v. Fonken,
Appellee responds that child support is a singular obligation and that the circuit court correctly determined that there was no arrearage and no cause of action for Appellant to pursue because estoppel had been determined in the previous lawsuit. Specifically, he asserts that, because an order had previously been entered setting the amount of child support he was to pay, the controlling statute governing Appellant’s ability to collect child support upon reaching the age of majority is'Arkansas
We conclude that our holdings in Clemmons and Chunn v. D’Agostino,
We note that, although some subsections of these statutes have been slightly amended and rearranged, there have been no substantive changes to the statutes since Clemmons was decided. The General Assembly is presumed to be familiar with this court’s interpretations of its statutes, and if it disagrees with those interpretations, it can amend the statutes. Com v. Farmers Ins. Co.,
Applying these statutory principles as interpreted in Clemmons to the facts of this case, we see that Jane Chitwood was the first to file the action to collect the unpaid support for the five-year period from February 1999 to May 2004. As noted by the court of appeals, Jane Chitwood’s action was filed on April 21, 2003, while Appellant was still a minor. Chitwood,
In sum, we conclude that the alleged arrearage for the challenged period was a singular obligation of support that has previously been litigated and barred from collection due to the doctrine of equitable estoppel. Chitwood, 92 ArkApp. 129,
As her second point for reversal, Appellant challenges the circuit court’s finding that her needs were met by funds available to her mother during the five-year period that Appellee did not pay child support. On appeal, Appellant emphasizes that the additional funds used to meet her needs did not come from Appellee, but from her mother’s inheritance.
Initially, we note that the facts supporting this finding were undisputed. For, as the circuit court’s order correctly observed, Appellant admitted in her deposition that her and her brother’s everyday needs and expenses were paid during the challenged period. Furthermore, Appellant misreads the operative effect of this finding as a matter of law. The summary ^judgment was appropriately granted because there were no material facts in dispute, and the claim was barred as a matter of law. If the claim is barred as a matter of law, whether Appellant’s needs were met for the challenged period is of no effect.
In conclusion, we note that the circumstances of this case are somewhat unique. The court of appeals held that the mother was estopped from asserting the claim to the support because she had induced the father to enter into an agreement that she knew was unenforceable because she had sought legal counsel on the matter. The arrearage that Appellant attempts to collect here is the same arrearage that her mother had attempted to collect in the previous suit. That her mother’s attempt to collect failed does not change the singular nature of the child-support obligation as contemplated by the statute, section 9-14-236, and recognized in our case law interpreting the statute, Clemmons and Chunn. Appellant’s present suit is barred by her mother’s previous suit. The finding that Appellant’s needs were met during the challenged period of unpaid support was not clearly erroneous and was not the basis for the circuit court’s conclusion that summary judgment should be granted. The summary judgment in favor of Appel-lee is therefore affirmed; accordingly, there is no need for us to address Appel-lee’s arguments concerning the possible revision of the amount of support, any credit for moneys he paid to Appellant after she had reached majority, and the possible transfer of wealth or accumulation of capital that would result.
Affirmed.
Dissenting Opinion
dissenting.
| ¡Although the majority holds that Ark. Code Ann. § 9-14-236 and our opinions in Chunn v. D’Agostino,
First, in interpreting Ark.Code Ann. § 9-14-236, using plain and ordinary meaning of its language, Ark.Code Ann. § 9-14-236 does not state that the obligation of child-support arrearages is a singular obligation. The statute only contemplates who can bring an arrearages claim and when. Ark.Code Ann. § 9-14-236 does not preclude Kylie Chitwood, “the child for whose benefit the initial support order was entered,” from asserting her action for child-support arrearages, and once she reached majority, she had the right to assert her action. Kylie had this right despite her mother having previously been equitably estopped from collecting the child-support arrearage by her conduct when Kylie was a minor. The mother’s action and Kylie’s action are distinct from one another.
Second, the majority relies on Chunn and Clemmons in support of its interpretation that Ark.Code Ann. § 9-14-236 allows only for a singular obligation. However, both cases are distinguishable. Chunn is distinguishable from the present case because in Chunn, the mother was barred, not estopped, by a five-year statute of limitations, in place at that time. In that case, when the Chunn children reached majority, they timely filed an action to collect the arrearages that had accrued from the time the support order was entered to the time their | father’s parental rights were terminated. Our holding was specific to the question of finality and the statute of limitations. We held that a noncustodial parent had a “vested right to rely on the statute of limitations as a defense, and that could not be changed by subsequent legislation.” Chunn,
Clemmons is also distinguishable and does not support the majority’s opinion. In Clemmons, we addressed who was entitled to bring an action for arrearages after a child has reached majority. In Clem-mons, the mother had assigned her right to collect to appellee, Office of Child Support Enforcement. The chancery court held that the Office of Child Support Enforcement was estopped because the mother had concealed the child, barring visitation. In an earlier related case, the court of appeals reversed this decision, holding that refusal to allow the collection of past-due support based on a failure to allow visitation contravenes the purpose of the Uniform Interstate Family Support Act. Office of Child Support Enforcement v. Clemmons,
In Clemmons, we held that either the custodial parent, the Office of Child Support Enforcement, or the child, having reached majority, was entitled to petition for arrearages under § 9-14-236. We stated that “as we read the statute [Ark. Code Ann. § 9-14-236] it contemplates one support obligation which may be pursued by different persons at different
Looking at the plain meaning of Ark. Code Ann. § 9-14-236, Kylie could not pursue arrearages before she reached majority. Chunn and Clemmons contemplate only one support obligation if an action is brought after the child reaches majority. In this case, Kylie’s action is the only action that was brought after she had reached majority. Thus, the circuit court erred in finding that Kylie’s action was barred as a matter of law.
The majority places much emphasis on the circuit court’s decision that because Kylie’s mother was estopped, there are no arrearages. Although the court of appeals ruled that Kylie’s mother was estopped, the court did not hold there were no ar-rearages. Chitwood v. Chitwood,
The circuit court also held in its order granting summary judgment that to allow Kylie to collect the unpaid child support would be inequitable. Because Kylie’s mother was estopped | ^from prevailing in her attempt to collect the support, I fail to see how it would be inequitable for Appel-lee to pay his obligation. This is not an instance in which Appellee would have paid the support twice. The circuit court erred in granting summary judgment based on inequity.
The majority chose not to address Ky-lie’s second point on appeal, that although it is undisputed that Kylie’s needs were met, they were not met by Appellee. The majority holds that “summary judgment was appropriate because there were no material facts in dispute and the claim was barred as a matter of law.” Therefore, “whether Appellant’s needs had been met is of no effect.” However, the majority goes on to hold that the decision of the circuit court finding that Kylie’s needs were met was not clearly erroneous.
However, the majority ignores our case law, which provides that “the parent must furnish the support and maintenance himself and the duty is a personal one, and he may not rely upon the assurance that someone else is properly supporting and maintaining the child.... ” Pender v. McKee,
The court of appeals’ reasoning in Lee is persuasive and I would adopt it. In Lee, the children received a large personal-injury settlement as a result of an accident and a special trust provided for their needs. The appellant argued that the circuit court erred in not crediting the amount that the children received from a
Additionally, in Fonken v. Fonken,
Fonken is on point but in addition, here, Appellee’s support order was never abated by a court order. Further, as in Lee, Appellee cannot claim credit for Kylie’s needs having been met by her mother’s inheritance. Appellee had a legal and moral duty to support Kylie. Thus, the circuit court erred in granting summary judgment to Appellee. Accordingly, I would reverse and remand this matter for trial.