Pass v. Pass

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED

February 24, 1999

Cecil Crowson, Jr.

Appe llate Court

KATHIE LYNN PASS, )

Clerk

)

Plaintiff/Appellant, ) Blount Circuit No. 7845

)

v. )

) Appeal No. 03A01-9710-CV-00493

LEE ROY PASS, )

)

Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT OF BLOUNT COUNTY

AT MARYVILLE, TENNESSEE

THE HONORABLE W. DALE YOUNG, JUDGE

For the Plaintiff/Appellant: For the Defendant/Appellee:

Lance A. Evans Charles Dungan

Maryville, Tennessee Maryville, Tennessee

REVERSED AND REMANDED

HOLLY KIRBY LILLARD, J.

CONCURS:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.

OPINION

This is an action to collect child support arrearages involving an issue of first impression in

Tennessee. The parties divorced, remarried, and divorced a second time. The wife seeks to collect

child support which accrued after the first divorce and prior to the parties’ remarriage. The trial

court found that the remarriage of the parties rendered the prior divorce decree void with regard to

child support and dismissed the wife’s motion to collect the arrearage. We reverse, holding that

claims for arrearages which accrued after the first divorce and prior to the remarriage are not barred

as a matter of law.

Kathie Lynn Pass (“Wife”) and Lee Roy Pass (“Husband”) were married on March 2, 1979.

The parties divorced for the first time on August 31, 1984. The final decree of divorce granted

custody of the couple’s child to Wife and required Husband to pay child support of $40 per week

until August 1, 1985, when the weekly amount increased to $50. Husband failed to pay the required

child support. On April 20, 1993, Wife received a default judgment against Husband in the amount

of $21,000 for unpaid child support. By agreement of the parties, this judgment was vacated on June

14, 1993. The parties remarried on November 4, 1994. They divorced for the second time on

September 20, 1996.

In a motion filed after the second divorce, Wife sought to collect arrearages in child support

which accrued after the first divorce and prior to the remarriage, and excluding the period of time

in which the parties cohabitated prior to the remarriage. The trial court dismissed the motion,

holding “that the remarriage of the parties annulled and rendered void the prior judgment of divorce

insofar as the custody and support of the minor child is concerned.” From this decision, Wife now

appeals.

On appeal, both parties assert that there are no controlling Tennessee decisions on this issue.

Both cite caselaw from other states in support of their positions.

This appeal involves only a question of law; there are no disputed facts pertinent to the issue

brought before this Court. Consequently, we review the trial court’s conclusions of law de novo,

with no presumption of correctness. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

In Watkins v. Watkins, 1998 WL 704516 (Tenn. App. 1998), this Court addressed the effect

of remarriage on a custody provision in a prior divorce decree. The facts in Watkins are quite

complicated and involved several states; however, the facts pertinent to this case will be briefly

outlined. The parties in Watkins married in December 1984, and in January 1990, the husband

obtained an ex parte divorce decree and was awarded custody of the parties’ two children. Watkins,

1998 WL 704516, at *1. Later that same year, the parties remarried. Id. However, in February

1991, the wife filed for a second divorce, and the court entered a divorce decree granting her custody

of the children. Id. at *1-*2. Subsequently, the husband attempted to enforce the first divorce

decree which granted him custody of the children. Id. at *3. This Court held that the remarriage of

the parties rendered the prior custody decree void and unenforceable, in line with the majority of

jurisdictions that had considered the issue. Id. at *5 (citing Ex parte Phillips, 95 So. 2d 77 (Ala.

1957); Oliphant v. Oliphant, 7 S.W.2d 783 (Ark. 1928); Warren v. Warren, 97 S.E.2d 349 (Ga.

1957); In re Parks, 630 N.E.2d 509 (Ill. App. 1994); Rasch v. Rasch, 168 So. 2d 738 (Miss. 1964).

Likewise, most courts that have considered the issue hold that the remarriage of the parties

renders the child support provisions of the initial divorce decree void and unenforceable, at least

prospectively from the date of the remarriage. See Davis v. Davis, 437 P.2d 502, 503 (Cal. 1968)

(“[T]he rule as developed in other jurisdictions is that if the parties again intermarry child custody

and support orders as between themselves are thereupon terminated, as well as the jurisdiction of the

court to enforce such orders, and that this is true whether or not the parents subsequently divorce

again.”); In re Doria, 855 P.2d 28, 29-30 (Colo. Ct. App. 1993) (“As a general rule, when the parties

to a divorce remarry each other, the court’s jurisdiction over the parties is terminated and the

provisions of the prior decree for matters of child support, custody, and maintenance are nullified.”);

Warren v. Warren, 97 S.E.2d 349, 350 (Ga. 1957) (“The remarriage of the parties nullified the

[divorce] decree . . . and restored the parental rights of the parties to the same extent as if no divorce

had ever been granted.”); In re Root, 774 S.W.2d 521, 523 (Mo. App. 1989) (“It would be absurd

to hold that once parents remarry each other and the family is again intact and residing in the same

household, the former noncustodial parent must pay future installments of child support to the other

parent per the past divorce decree.”); Schaff v. Schaff, 446 N.W.2d 28, 31 (N.D. 1989)

(“Accordingly, we hold that when parents of a child born out-of-wedlock marry each other, the child

custody and future support provisions of the paternity judgment are nullified and replaced by the law

governing the rights and obligations of married parents to their children.”); Thomas v. Thomas, 565

P.2d 722, 724 (Okla. App. 1976) (“Once the parties remarry the jurisdiction of the court with respect

to maintenance of their children terminates because the divorce is annulled and the rights and duties

of the parties with regard to their children are as if they had never been divorced.”).

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However, in this case, Wife seeks child support payments which accrued prior to the parties’

remarriage, and excluding the period of cohabitation. This is an issue of first impression in

Tennessee. However, the issue has been addressed in a number of other jurisdictions.

A minority of courts have held that child support arrearages which accrued after the first

divorce and prior to remarriage may not be collected. In Ringstrom v. Ringstrom, 428 N.E.2d 743,

744 (Ill. App. Ct. 1981), the court held that a remarriage voids the prior divorce decree. Ringstrom

reasoned that the court lacked jurisdiction to reexamine the prior divorce decree after the parties’

remarriage; therefore any claim based on a prior divorce decree became barred once the parties

remarried. Ringstrom, 428 N.E.2d at 746. Likewise, in Palacci v. Palacci, 613 A.2d 951, 953 (Ill.

App. 1981), the court held that arrearages which accrued after the first divorce and prior to

remarriage may not be collected, reasoning that “on remarriage, a prior order of child support

becomes unenforceable.”

However, a majority of courts considering the issue have reached a contrary result. The

Supreme Court of Nebraska in Scheibel v. Scheibel, 284 N.W.2d 572, 573 (Neb. 1979), addressed

the issue of whether the remarriage of the parties barred an action to collect child support which

accrued during the period of time between the first divorce decree and the remarriage. The Scheibel

court held that remarriage did not bar a claim to collect child support arrearages which accrued

before the remarriage. Scheibel, 284 N.W.2d at 573. In addition, the husband asserted the equitable

defense of laches in an attempt to bar the wife’s claim. Id. at 573. In response, the court held, in

part:

In the absence of any evidence whatever that the appellant was materially prejudiced

by the delay in the assertion of the claim for support, we decline to hold that the

remarriage of the parties will operate as a matter of law to prohibit the party for

whose benefit the support was ordered from instituting [an] action to collect the

arrearages.

Id.

The Supreme Court of Appeals of West Virginia in Griffis v. Griffis, 503 S.E.2d 516, 528

(W. Va. 1998), reviewed in detail decisions from other states addressing the issue and noted that the

majority held that the remarriage of the parties does not as a matter of law bar a claim for child

support arrearages which accrued prior to remarriage. Relying on these authorities, the Griffis court

held that when a divorce decree orders one parent to pay child support to the other, and the obligor

parent fails to make payments, then a remarriage of the parties does not nullify the arrearages which

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accumulated prior to the remarriage. Griffis, 503 S.E. at 528. The Griffis court relied in part on

West Virginia case law which prohibited courts in West Virginia from modifying and canceling

accrued child support, on the basis that such payments vest as they accrue. Id. see also Vail v. Vail,

240 N.E.2d 519, 520 (Ill. App. Ct. 1968); Wren v. Wren, 127 N.W.2d 643, 646 (Iowa 1964).

The Iowa Supreme Court in Greene v. Iowa Dist. Court, 312 N.W.2d 915, 917 (Iowa 1981),

addressed the issue of a mother seeking to recover child support which accrued between the divorce

and remarriage. The court concluded that each installment of child support becomes a money

judgment when due. Greene, 312 N.W.2d at 918. Thus, accrued installments become the vested

right of the spouse entitled to the child support payments. Id.

Greene involved an additional element. The mother in Greene had assigned her right to the

support payments to the Iowa Department of Social Services, in exchange for welfare benefits. Id.

at 916. Greene held that “[a]ccrued installments thus become the vested right of the spouse entitled

to the support and may not be taken away.” Id. at 918 (citing In re Evans, 267 N.W.2d 48, 52

(1978)). Greene recognized the general principle that accrued child support payments are

enforceable judgments and cannot be extinguished by a subsequent remarriage. Id. Its holding was

not limited to the particular facts in that case, in which an assignment of child support payments was

made to a state agency.1

Likewise, the Missouri Court of Appeals in the case of In re Root, 774 S.W.2d 521 (Mo. Ct.

App. 1989), held that the mother was not barred from collecting child support which accrued prior

to the remarriage of the parties. The court thoroughly analyzed the issue and reviewed cases

espousing both the majority and minority view. In re Root, 774 S.W.2d at 524-527. The Root court

did not follow Ringstrom and held that the remarriage of the parties failed to discharge husband for

child support arrearages which accrued between the divorce and subsequent remarriage. Id. at 526.

In so finding, the court found that the cases of Scheibel and Greene to be “better reasoned than

Ringstrom.” Id. at 527.

The Court of Civil Appeals of Alabama addressed this issue in Hardy v. Hardy, 600 So. 2d

1

Accord In re Root, 774 S.W.2d 521, 525-26 (Mo. Ct. App. 1989) (determining that

“[t]he holding in Greene . . . did not rest on the narrow ground that the agency’s rights under the

mother’s assignment could not be impaired by her subsequent remarriage to the father . . .

Greene squarely held that the parties’ remarriage did not nullify the claim for accrued

installments of child support.”); see also Griffis v. Griffis, 503 S.E.2d 516, 526 (1988).

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1013 (Ala. Civ. App. 1992). The Alabama court held that claims for child support payments become

final judgments when due and “[a] trial court may not modify, release, or discharge the obligor of

past-due child support once the obligation matures and becomes final under the original divorce

decree.” Hardy v. Hardy, 600 So. 2d at 1015.

Thus, the majority of courts from other jurisdictions that have considered the issue in this

case hold that child support arrearages which accrue after the first divorce and prior to remarriage

are not, as a matter of law, barred by the parties’ remarriage. Support for this view is found in

Tennessee law regarding child support arrearages. Tennessee Code Annotated § 36-5-101(a)(5)

provides in pertinent part:

Any order for child support shall be a judgment entitled to be enforced as any other

judgment of a court of this state and shall be entitled to full faith and credit in this

state and in any other state. Such judgment shall not be subject to modification as

to any time period or any amounts due prior to the date that an action for

modification is filed . . . .

Tenn. Code Ann. § 36-5-101(a)(5) (Supp. 1998).

The Tennessee Supreme Court in Rutledge v. Barrett, 802 S.W.2d 604 (Tenn. 1991),

addressed the issue of retroactive modification of a child support order. In this case, the mother, in

1975, secured a child support order which required the father to pay one-half of his income to the

court clerk for the support of his minor children. Rutledge, 802 S.W.2d at 605. In March 1988, the

mother sought a contempt order against the father and a judgment for $33,555 in child support

arrearages. Id. The trial court held the father in contempt of court and ordered him to pay $27,100

in arrearages. Id. The trial court reduced the amount of arrearage because the father was

unemployed for a period of time and the decree required the father to pay a percentage of his income.

Id. On appeal, the father sought additional modification of the trial court’s order and raised various

equitable defenses. Id. Citing Tennessee Code Annotated § 36-5-101, the Court held that the order

of child support was not subject to retroactive modification and that traditional equitable defenses

could not be raised against the 1988 judgment. Id. at 607. The Court noted that “[t]he legislative

history of this amendment reflects the General Assembly’s clear understanding that as a result of the

legislative action to bring Tennessee law in line with the federal requirement, the courts of this state

would lose their ability to forgive past arrearages in child support cases . . . .” Id. at 606. The Court

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indicated that the statute prohibited retroactive modification of child support orders. Id. see also

Ex rel. McAllister v. Goode, 968 S.W.2d 834 (Tenn. App. 1997); Brown v. Heggie, 876 S.W.2d 98

(Tenn. App. 1993).

As noted above, other courts holding that claims for child support arrearages which accrued

after the first divorce and prior to remarriage are not automatically barred by the parties’ remarriage

have relied in part on prior caselaw holding that accrued child support arrearages may not be

retroactively modified or canceled. See Vail, 240 N.E.2d at 520; Wren, 127 N.W.2 at 646; Griffis,

503 S.E.2d at 528.

Based on the reasoning in the cases espousing the majority view, as well as Tennessee law

proscribing the retroactive modification or forgiveness of accrued child support arrearages, we hold

that claims for child support arrearages based on the parties’ first divorce decree, which accrue prior

to the parties’ remarriage, are not as a matter of law barred by their remarriage. Since Wife in this

case did not seek arrearages for the period in which the parties cohabitated prior to remarriage, we

do not address whether arrearages for that time period are barred as a matter of law.2 The trial court

in this case ruled that Wife’s claims were barred as a matter of law and, consequently did not address

possible defenses such as laches which could be raised by Husband. Therefore, in this case, we do

not address such possible defenses.3 Moreover, the trial court did not address the effect of the

judgment for child support arrearages being vacated prior to the parties’ remarriage, and

consequently we do not address that issue. Therefore, the decision of the trial court is reversed and

the cause remanded for further proceedings consistent with this Opinion.

2

See Griffis v. Griffis, 503 S.E.2d 516, 524 (W.Va. 1998) (holding that cohabitation

without remarriage does not automatically nullify an existing court order on child support).

3

See Scheibel v. Scheibel, 284 N.W.2d 572, 573 (Neb. 1979).

6

The decision of the trial court is reversed, and the cause is remanded for further proceedings

consistent with this Opinion. Costs are taxed to the Appellee, for which execution may issue, if

necessary.

HOLLY KIRBY LILLARD, J.

CONCUR:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.

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