Appellant, mother of two minor children, was awarded custody of the children when the parties were divorced on September 14, 1965. In the decree of divorce, appellee was ordered to pay $20 a week in child support. On September 7, 1977, appellant filed a motion for citation for contempt for failure to pay support and for modification of the custody decree. She sought judgment for arrearages of $11,180 for the period of October 11, 1966 to August 11, 1977. She also asked that the weekly amount of child support not be reduced even though she did request the son’s custody be changed to his father. Appellee filed an answer generally denying the allegations and affirmatively pleading that he should not be held responsible for the arrearage accumulated during that period since appellant had not provided reasonable visitation as provided in the original decree and had removed the children from the jurisdiction of the court without notification to either him or the court. At the hearing on October 18, 1977, the court found appellant in contempt for failure to allow the children to visit with their father. The court found appellee in contempt for failure to pay child support for the past ten years. The chancellor awarded judgment to appellant of $3,096 for three years arrearage and back support. It was further ordered that the support and arrearage was to be paid at a rate of $5 a month and that execution was to be held in abeyance unless appellee failed to make prompt payments each month. The custody of the son was changed to his father and the weekly support payments were reduced to $10.
Appellant contends that the chancery court abused its discretion in finding that appellee had failed to support the children for 10 years, but only awarded $3,096 as arrearages for three years; that the court erred in limiting the arrearage to three years when the applicable statute of limitations, if it had been affirmatively raised, was five years; that the court abused its discretion by holding in abeyance execution on the judgment; and that the court abused its discretion by allowing the payment of thejudgment for the arrearages at a rate of $5 a month. We find merit in two of the points and reverse.
Appellant is right in her contention that the chancery court erred in ordering that execution on the judgment be held in abeyance so long as appellee pays $5 per month on thejudgment for arrearages. Entitlement to payment of child support installments vested in appellant as they accrued, and she was entitled to judgment as a matter of right, when they were not paid, except during such periods of time when she rendered appellee’s visitation rights nugatory. Riegler v. Riegler,
An execution may issue on any final judgment of any court of record for a liquidated sum of money. Ark. Stat. Ann. § 30-101 (Repl. 1962). The court rendering thejudgment has no power, in the absence of a stay or supersedeas pending appeal, to withhold execution beyond the ten day period fixed by Ark. Stat. Ann. § 30-102 (Repl. 1962). Taylor, State Bank Commissioner v. O’Kane,
*** But by still another section, 6299, a judgment of the Supreme, chancery, or circuit courts of this state, or the District Court of the United States in this state, becomes a lien on real estate owned by the defendant in the county where rendered from the date of thejudgment. If the court could stay or postpone execution, as, for example, in this case, the judgment debtor could make away with all chattels owned by him and any real estate outside the county, free from the judgment lien, because no execution could be issued and come to the officer’s hands until the period of the stay had elapsed. Courts have not been given such power. One of their functions is to aid in the collection of just debts by orderly process of law, and not to delay same.
Ark. Stat. Ann. §§ 30-101 and 30-102 (Repl. 1962) are part of the Civil Code, the provisions of which are applicable to circuit and chancery courts alike. Ark. Stat. Ann. §§ 27-102, - 103, -104, -106, -109, -204 (Repl. 1962). Thomas v. Dean,
Garnishment after judgment, rather than before judgment is, in effect, a form of execution. Probst v. Scott,
The provisions of the garnishment statutes also apply to actions and judgments in any court of record. Ark. Stat. Ann. § 31-501 et seq (Repl. 1962). Garnishment has been defined as a proceeding whereby a plaintiff seeks to subject to his claim property of the defendant in the hands of a third person or money owed by such person to the defendant, and it may be issued at whatever stage of a proceeding the statutes may authorize. First National Bank of Huttig v. Rhode Island Ins. Co.,
A court may not restrict the right of one parent to collect a judgment against the other for arrearages in child support payments by legal process; it may, however, if changed circumstances have rendered the payments inequitable, in its discretion, decline to enforce, by contempt proceedings, the payment of a greater sum than the circumstances warrant. Bachus v. Bachus, supra. See also, Griffith v. Griffith,
We do not understand the basis for the trial court’s requiring appellant to pay only $5 per month on the judgment for arrearages. There is no question about appellant’s entitlement to interest at the rate of 10% per annum. Ark. Stat. Ann. § 29-124 (Supp. 1977). All judgments bear interest under this statute, unless they are expressly excluded by the language of the statute itself. Shofner v. Jones,
Appellant argues that it was an abuse of discretion for judgment to be entered for only three years of arrearages when the proof showed that appellee had not paid support in the last ten years. This case was submitted to us on an abbreviated record. It consisted of the pleadings, the order, and that part of the testimony by both parties that appellee had not supported the children from October 11, 1966 to June 26, 1977. Appellee did not designate any additional parts of the record or favor us with a brief. Although we cannot presume that any portions of the record not designated support the trial court’s action, we also cannot reverse the lower court unless the record demonstrates apparent error. Holt v. Holt,
As has been stated above, a mother is not entitled to judgment for arrearages during the period when she has defeated the father’s visitation rights. Kirkland v. Wright,
A related argument is that the wrong statute of limitations was applied and that it was not affirmatively raised by appellee. While it is true that the correct statute of limitations in actions for accumulated arrearages is five years, there is no indication that the statute was the basis for the number of years awarded. Appellant was not entitled to support during the period when she was in contempt so that the chancellor had the option of awarding any amount that was justified by the evidence. There is no evidence in the record that reflects that the chancellor was basing her award on any, much less an erroneous, statute of limitations.
The decree is affirmed as to the judgment for arrearages, but reversed as to the withholding of execution. The cause is remanded to the chancery court for further proceedings consistent with this opinion.