Sharum v. Dodson

• Decision Date: 17 July 1978
• Docket Number: No. 78-42,78-42
• Citation: 568 S.W.2d 503,264 Ark. 57
• Parties: Darcie SHARUM (Dodson), Appellant, v. Jimmy DODSON, Appellee.
• Court: Arkansas Supreme Court

Page 503

568 S.W.2d 503

264 Ark. 57

Darcie SHARUM (Dodson), Appellant, v. Jimmy DODSON, Appellee.

No. 78-42.

Supreme Court of Arkansas, In Banc.

July 17, 1978.

Stephen M. Sharum, Fort Smith, for appellant.

Robert C. Marquette, Van Buren, for appellee.

FOGLEMAN, Justice.

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 the judgment for 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 the judgment 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, 246 Ark. 434, 438 S.W.2d 468; Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940; Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917; Kirkland v. Wright, 247 Ark. 794, 448 S.W.2d 19. A judgment for past due payments is like any other judgment, whether at law or in equity.

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 the judgment 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, 185 Ark. 782, 49 S.W.2d 400; International Shoe Co. v. Waggoner, Judge, 188 Ark. 59, 64 S.W.2d 82. The reason for the rule is aptly stated in Taylor thus:

* * * 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 the judgment. 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. §§ 31-101 and 31-102 (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, 245 Ark. 446, 432 S.W.2d 771; Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239.

Garnishment after judgment, rather than before judgment, is, in effect, a form of execution. Probst v. Scott, 31 Ark. 652. See also, Teague v. Fairchild, 15 S.W.2d 585 (Tex.Com.App., 1929); First National Bank in Bronte v. Little, 6 S.W.2d 819 (Tex.Civ.App., 1928). For this reason it behooves us to consider that process also, even though it was not specifically mentioned in the court's decree.

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., 184 Ark. 812, 43 S.W.2d 535. A chancery court, however, may only hold a parent required by decree to make support payment in contempt of court for wilful disobedience of the court's order and not because of his financial inability to make payment. Hervey v. Hervey, 186 Ark. 179, 52 S.W.2d 963. While restricting the ability of the parent to collect a judgment to installment amounts, in effect, to a retroactive modification of the decree making the allowance, it is proper for a chancery court to make such provision for payments of arrearages in installments as the circumstances warrant in order to allow the judgment debtor to avoid punishment for contempt. Jarvis v. Jarvis, 27 Ariz.App. 266, 553 P.2d 1251 (1970). Accord, Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439; Armstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660, 61 A.L.R.3d 511.

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, 225 Ark. 487, 283 S.W.2d...