Hailey v. Holden, 54179

• Decision Date: 10 October 1984
• Docket Number: No. 54179,54179
• Citation: 457 So.2d 947
• Parties: Mildred H. Holden HAILEY v. Norman O. HOLDEN.
• Court: Mississippi Supreme Court

Page 947

457 So.2d 947

Mildred H. Holden HAILEY v. Norman O. HOLDEN.

No. 54179.

Supreme Court of Mississippi.

Oct. 10, 1984.

John A. Scafide, Jr., Favre, Genin & Scafide, Bay St. Louis, for appellant.

Aaron D. Adams, Gex & Adams, Waveland, for appellee.

Before ROY NOBLE LEE, DAN M. LEE and PRATHER, JJ.

PRATHER, Justice, for the Court:

This is an appeal from a final decree of the Chancery Court, Hancock County, dismissing Mildred H. Holden Hailey's claim against her former husband, Norman O. Holden, for past due child support payments. Hailey appeals and assigns as error:

(1) The admission of testimony by the appellee as to representations allegedly made by attorneys representing the appellant.

(2) The chancellor's finding that appellant was equitably estopped to claim any past due child support from the appellee.

(3) The chancellor's finding that a Louisiana judgment which reduced by half the amount of child support was entitled to full faith and credit in the present action.

I.

Mildred H. Holden Hailey, appellant, and Norman O. Holden, appellee, were divorced on June 29, 1969 by decree of the Superior Court of Fulton County, Georgia. The divorce decree granted custody of the parties' eight year old child, Tracy Robbin, to Mrs. Hailey and ordered Mr. Holden to pay $50.00 a week child support.

In early 1971, proceedings were instituted against Mr. Holden, who was then living in Baton Rouge, Louisiana, for extradition to Georgia for nonpayment of child support. According to Mrs. Hailey, these proceedings were instituted by the Adult Probation Department of Atlanta which supervises child support payments under the Uniform Reciprocal Enforcement of Support Act (hereinafter called URESA). The chancellor, however, found as a matter of fact that the proceedings were instituted by Mrs. Hailey. The present record does not contain any copy of these proceedings.

On April 20, 1971, Mr. Holden petitioned the Family Court of East Baton Rouge Parish, Louisiana for a reduction of his child support payments as ordered under the Georgia decree of 1969. Pursuant to Louisiana law, an attorney, as curator ad hoc, was appointed by the court to represent Mrs. Hailey who was then living in Kinston, North Carolina. This attorney notified Mrs. Hailey of the action by registered mail, return receipt requested, on May 7, 1971 and enclosed a copy of the petition. An answer was filed on behalf of Mrs. Hailey by her curator on May 25, 1971. The answer does not challenge the jurisdiction of the Louisiana court. Mrs. Hailey did not personally appear in the family court action. Judgment was entered on June 29, 1971 reducing Holden's child support payments to $100.00 a month. The record does not reflect whether this modification petition was filed within the URESA proceeding. The chancellor's opinion found that the URESA action was terminated.

In January of 1972, attorneys representing Mrs. Hailey sent Mr. Holden a "consent to adoption" form for Tracy Robbin. Mr. Holden signed the form and mailed it back to Mrs. Hailey's attorneys. Holden testified that it was his understanding that upon signing the form he was relieved of any further obligation to support Tracy Robbin; accordingly, he stopped making child support payments.

According to Mrs. Hailey, in August of 1973 she contacted Mr. Holden by telephone, explained that the adoption was never completed, and asked him to send money to help pay Tracy Robbin's school expenses. Mrs. Hailey testified that Mr. Holden told her and Tracy Robbin at that time that as far as he was concerned they were both dead. According to Mr. Holden, he received no communication from either his ex-wife or Tracy Robbin until after the present action was initiated.

Mrs. Hailey filed the present petition on April 14, 1981 seeking past due child support of $28,150.00 and attorneys' fees. At this time Tracy is a twenty-year old, working to earn money to attend college.

The chancellor found as a matter of law that the Louisiana court order reducing child support was entitled to full faith and credit. The chancellor further found that Mrs. Hailey was equitably estopped to claim any past due child support based upon Holden's reliance upon the representation that Tracy Robbins was being adopted by Roger Wilson, Hailey's then husband. The chancery court dismissed her complaint, giving rise to this appeal.

I.

Appellant first assigns as error the admission, over objection, of Mr. Holden's testimony as to his understanding of the effect of his consent to the adoption of Tracy Robbin. Appellant argues that any understanding would be based upon the out-of-court statements of Mrs. Hailey's attorneys and thus constitutes inadmissible hearsay, relying upon Pevey v. Alexander Pool Co., Inc. 244 Miss. 25, 139 So.2d 847 (1962). In Pevey a witness read from an advertising brochure which explained the function of a swimming pool valve. This Court held that the advertisement constituted inadmissible hearsay. 139 So.2d at 849. This case is factually distinguishable.

In the case sub judice, Mr. Holden was not permitted to testify as to the statements of Mrs. Hailey's attorneys. The question then is whether testimony as to an understanding based upon those statements constitutes hearsay.

In order to constitute hearsay the statement must be offered to prove the truth of the matter asserted. McCormick, Evidence Sec. 246. Mr. Holden's testimony was not offered to prove the actual legal effect of his signature on the consent to adopt form. Nor was it offered to prove the substance of his conversation with Mrs. Hailey's attorneys. See Young v. State, 146 Ga.App. 167, 245 S.E.2d 866, 868 (1978) (in action by mother to recover past due child support, defendant father's testimony that "he didn't think he was supposed to continue paying child support after he signed the adoption agreement" was admissible hearsay).

We conclude that Holden's testimony as to his understanding of the effect of his signature is admissible for the purpose of stating his understanding, but not for the purpose of proving the truth of the matter asserted. This Court finds no merit in appellant's first assignment of error.

II.

Appellant's second assignment of error challenges the chancellor's finding that appellant is equitably estopped to claim any past due child support.

The chancellor concluded that attorneys for Mrs. Hailey obtained Mr. Holden's consent to the adoption of Tracy by Mrs. Hailey's then husband, Roger Wilson; that Mrs. Hailey "did not meet the burden of proof to show that she did in fact contact Mr. Holden and inform him that the adoption had not taken place"; and that Mrs. Hailey was equitably estopped from claiming child support payments.

The question presented is whether the consent of a natural father at the request of the mother for the adoption of his child estops the mother from recovering child support arrearages where the adoption in fact never took place.

We consider first the legal obligations involved in this question. Mississippi statutory enactments provide that both separated or divorced parents who have separate incomes or estates may be required to support children according to their relative financial ability. Miss.Code Ann. Sec. 93-5-23 (Supp.1983) and Sec. 93-11-65 (1972). Reimbursement for welfare expenditures for children receiving aid to dependent children is permitted. Miss.Code Ann. Sec. 43-19-35 (Supp.1983). Additionally Miss.Code Ann. Sec. 97-5-3 (1972) provides for criminal liability against parents for non-support of minor children under sixteen years of age. In Mississippi the duty to support is a statutorily imposed duty on parents.

A child support judgment is awarded to the custodial parent for the benefit and protection of the child. Miller v. Miller, 29 Or.App. 723, 565 P.2d 382, 100 A.L.R.3d 1120 (1977). There is a public policy consideration involved because of the interest of society to provide for its children's needs and to decrease society's financial burden when a child is supported through public assistance. The underlying principle here is the legal duty owed to the child for the child's maintenance and best interest. McManus v. McManus, 428 So.2d 854 (La.Ct.App.1983).

We, therefore, conclude that since both the child's interest and society's interest are involved, both interests are to be considered in resolution of any dispute involving child support. The child's maintenance and best interest are to be satisfied; on the other hand, the parties cannot undermine the state's interest. Of equal importance in this situation is the inherent power of the court to enforce its own orders and decrees.

In Mississippi judicial interpretation of this legal duty to support minor children has firmly established that, once ordered, installment of child support become fixed and vested when due and unpaid. Cunliffe v. Swartzfager, 437 So.2d 43 (Miss.1983); Duncan v. Duncan, 417 So.2d 908 (Miss.1982); Hambrick v. Prestwood, 382 So.2d 474 (Miss.1980); Howard v. Howard, 191 So.2d 528 (Miss.1966).

Additionally, a court cannot relieve the civil liability for support payments that have already accrued. Cunliffe, supra; Duncan, supra; Howard, supra.

The chancery court may enforce the support obligations by contempt proceeding and may modify the order on proper proof. Miss.Code Ann. Sec. 93-5-23 (Supp.1983). It follows, therefore, that if the order is not terminated by the court, the liability may continue to accrue and contempt may lie for non-payment.

We are faced with the announced rule that this Court is without authority to reduce the amounts of accrued child support as they constitute a civil liability. Cunliffe, supra, Howard, supra. The application of equitable estoppel would be a departure from this rule.

We reverse the chancery court in his finding that Mrs. Hailey was not entitled to a judgment for vested child support payments. We hold that equitable estoppel did not terminate her right to...