Chitwood v. Chitwood

• Decision Date: 29 June 2005
• Docket Number: No. CA 04-996.,CA 04-996.
• Citation: 211 S.W.3d 547
• Parties: Jane CHITWOOD, Appellant, v. Gordon CHITWOOD, Appellee.
• Court: Arkansas Court of Appeals

211 S.W.3d 547

Jane CHITWOOD, Appellant, v. Gordon CHITWOOD, Appellee.

No. CA 04-996.

Court of Appeals of Arkansas, Divisions I, II, III.

June 29, 2005.

Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., by: Curtis E. Hogue, Fayetteville, for appellant.

Matthews, Campbell, Rhoads, McClure, Thompson & Fryauf, P.A., by: David R. Matthews and Sandra L. Waddoups, Rogers, for appellee.

DAVID M. GLOVER, Judge.

Appellant, Jane Chitwood, and appellee, Gordon Chitwood, were divorced by decree entered on October 21, 1993. They had two children, A.C. and K.C. Appellant subsequently moved with the children to Tulsa, Oklahoma, and visitation problems ensued. In a February 19, 1999 letter to appellant, appellee wrote: "I give up. As per your request, my parental rights are hereby surrendered and child support payments are terminated. You and the children will never see or hear from me again." For the next five years, appellee did not see the children nor pay support after that date until the current proceedings were initiated. On April 21, 2003, appellant filed a motion for contempt and complaint for money damages in which she sought to have appellee held in contempt and ordered to pay back child support. Appellee counter-petitioned to modify the support order. At the hearing, it was stipulated that the amount of accrued arrearage was $189,226 and that the amount of child support to be paid by appellee to appellant, beginning June 1, 2004, was $4,512 a month. Following the hearing on the matter the trial court found that appellant was prohibited by the doctrine of equitable estoppel from seeking to collect child-support arrearages or to enforce any child-support judgment that had accrued through the date of May 25, 2004. For her sole point of appeal, appellant contends that the trial court erred in finding that appellee proved the elements of equitable estoppel and thus erred in barring her from recovering the child-support arrearage on that basis. We disagree and affirm.

At the hearing in this matter, appellant testified that appellee paid his child support in a timely fashion until January 1999. She stated that on or about February 24, 1999, she received a letter dated February 19, 1999, from appellee, which stated that he was surrendering his parental rights and that child-support payments would be terminated per her request, and further that neither she nor the children would ever see or hear from him again. She explained that she sent the letter to her attorney and that, in return, she received from her attorney "some research regarding Arkansas law as it pertained to voluntary termination of parental rights and release of child-support obligations." She testified that based upon the legal research that she received, she believed at the time that appellee owed a continuing obligation of child support and that he continued to be entitled to visitation, but that she never told him either of these things. She stated that she changed her tax returns to claim both children as dependents after the child-support payments ceased.

Appellant testified that she did not file a contempt action for child support in 1999 because her children were "emotionally drained" and she felt as if she had to choose between money and her children's mental well-being. She stated that she borrowed money from the bank to make ends meet.

Appellant acknowledged that on August 24, 2001, she sent a letter to appellee's parents, and she described her letter as stating that she did not think appellee was serious and that he could show up at any time to visit the children. She told the grandparents that the children could visit with them overnight only if there would be no contact with appellee. She stated that she filed the contempt action in April 2003 primarily for financial reasons to recover child support, but also because the children were older and mature enough to handle a relationship with their father. She stated that she had never refused appellee's visitation.

Appellant testified that there was a contempt action against her in 1997 and that it was settled by her agreeing not to prevent visitation with appellee and to use her best efforts to facilitate visitation. She stated that she allowed appellee overnight visitation with the children until an incident on December 18, 1998, which occurred in Tulsa, Oklahoma. She explained that appellee came to Tulsa to exercise his visitation for Christmas and that she would not allow the children to go with him. She denied that she discussed with appellee at that time "doing away with visitation and child support." She acknowledged, however, that during a prior incident in 1997, when appellee was angry because the children's suitcases were not ready when he came to get them, that she said, "Why don't you just give them up?" She testified that when she received appellee's February 1999 letter that began, "Per your request," she "did not have any idea what he was talking about." She denied discussing with her attorney, prior to receiving appellee's letter, whether she and appellee could make a deal whereby appellee agreed not to exercise visitation in exchange for not paying child support.

Appellant stated that both children had problems seeing their father. She said that A.C. had panic attacks and that visiting with his dad made his anxiety worse, "although he had anxiety as a little boy and had continued to have anxiety." She explained that she had just bought a new house in 1999 and that she was able to make house payments by borrowing money at first and that she then inherited around $350,000. She stated that once most of the inheritance money was depleted, she initiated the action to recover the outstanding child support from appellee. She stated that by the time the action was filed, she did not have enough money to take care of the children. She acknowledged that when that fact was communicated to appellee, he began paying child support again. She also acknowledged that in the opinion letter that she received in 1999 from her attorney, one of the available options that was noted was for appellee "to pay no child support and in return, exercise no visitation."

With respect to the events of December 1998, appellant testified that around the first of December 1998, she received a letter from appellee in which he stated that he would exercise his Christmas visitation and that he would pick up the children on December 18 for eight days of visitation. She stated that prior to that time, appellee had not exercised overnight visitation with the children for the previous seventeen months and that he had only exercised daytime visitation on limited occasions. She stated that she pleaded with him not to take the children for eight days and nights, but that he told her he would be there to pick them up on Friday for eight days of visitation. She stated that on Friday, December 18, she was driving up to the house with the children in the car when she noticed that appellee was backing out of the driveway. She stated that she continued to drive to a friend's house and that she and the children went into the friend's house. She explained that appellee followed them and came to the front door of the house. She stated that he was not allowed in and that she did deny him visitation. She stated that he filed a contempt action against her the following Monday.

Appellee also testified at the hearing in this matter. He explained that following his divorce from appellant, he was never able to exercise visitation with the children without there being some controversy. He stated that those controversies caused him to return to court on occasions between 1994 and 1999. He explained that there was a period of approximately seventeen months prior to December 1998 when he did not exercise overnight visitation with the children. He testified that many times he would attempt to exercise visitation, but for different reasons would be unsuccessful. He stated that sometimes he would drive to Oklahoma and there would be no one at home, and that at other times, appellant would tell him that the children were not feeling well and did not want to come for a visit. He explained that his son, A.C., was being seen by a psychologist for his anxiety and that the doctor had asked that visitation cease for a period until the doctor completed her sessions with A.C. Appellee stated that he was not informed by appellant until December 1998 that the sessions had ended in May 1998, accounting for the approximate seventeen-month period where he exercised limited visitation.

Appellee testified that appellant called him after she received his letter concerning Christmas 1998 visitation and that she wanted to modify visitation from eight days and nights to one day and one night. He said that he told her such a modified arrangement was not acceptable and that she became angry. He testified that she asked him, "Why don't you give up your visitation, stop paying child support, and leave us alone," and then she hung up.

Appellee explained that he arrived at appellant's house on December 18 at five minutes before six o'clock in the evening. He stated that he sat in his car until 11:00 p.m. when he decided that he would leave to use the bathroom, get something to eat, and then come back. He stated that as he was pulling out of the driveway, he saw appellant and the children drive by the house. He said that he followed her car to a friend's house, which was about three miles away. He explained that he went to the front door and told her that he was there to exercise his visitation, that she told him he was not taking the children, and that there was nothing he could do about it. He stated that he called the police, that they arrived, and that they told him because his papers were from Arkansas, there was nothing they could do. He said that he drove home and had a contempt action filed.

Appellee explained that the contents of the ...