Facts: Husband and Wife divorced in 1975. They had one child for whom Husband was ordered to pay child support.
Husband died in 2010. Ex-Wife filed a claim against Husband’s estate for unpaid child support and interest totaling $68,145.24. Husband’s widow asserted that Husband’s child support obligation had been satisfied either in full or in part.
Ex-Wife testified that she had never received any child support from Husband. She acknowledged that she had not attempted to recover the arrearage during Husband’s lifetime. Husband’s widow related her belief that Husband had assisted the child financially. She testified that Husband had provided spending money and helped pay for the child’s education and other expenses. However, Husband’s widow admitted having no knowledge regarding Husband’s child support payments to Ex-Wife or how much child support, if any, had been paid to Ex-Wife. She presented no documentation to evidence satisfaction of the child support obligation.
The now-adult child testified that Husband had given her financial assistance over the years, but she admitted having no knowledge regarding any child support payments made by Husband to Ex-Wife. No further testimony was given at the initial hearing, and the proof was closed by the trial court.
The trial court took it upon itself to review the original file from the 1975 divorce. That petition contained a petition for contempt filed by Ex-Wife in 1978 that alleged Husband “has quit making his child support payments and is more than four (4) months behind.” Husband filed a responsive pleading denying the allegation. The file included no final resolution to the 1978 contempt matter. Ex-Wife stated that nothing has been done to collect past-due child support since 1978 because no success resulted from the 1978 petition.
The trial court denied Ex-Wife’s claim against Husband’s estate, finding:
[Ex-Wife] is unreliable and is not able to offer competent testimony on whether, when, or how much child support was paid. She has contra[di]cted herself both in court and in her pleadings on those issues. . . .
Child support was paid by [Husband] to [Ex-Wife] in some amount.
The court would be required to speculate regarding how much child support was or was not paid.
There is no reliable proof that child support was not paid after 1978.
On Appeal: The Court of Appeals reversed the trial court.
Ex-Wife argued the trial court committed reversible error by taking judicial notice of disputed facts contained in the court file from the original divorce action.
Tennessee Code Annotated § 34-1-102(b) obligates parents to support a child until the child reaches 18 years of age. The fact that a child has reached the age of majority, however, does not relieve a obligor parent from liability for unpaid child support.
Tennessee Code Annotated § 36-5-101(f)(1) states:
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. . . . If the full amount of child support is not paid by the date when the ordered support is due, the unpaid amount is in arrears, shall become a judgment for the unpaid amounts, and shall accrue interest from the date of the arrearage. . . . All interest that accumulates on arrearages shall be considered child support.
Tennessee Code Annotated § 36-5-101(f)(3) provides that a child support arrearage in existence at the time an order for child support would otherwise terminate continues in effect until the unpaid arrearage and costs are satisfied. A court may enforce such orders for arrearage under its power to punish for contempt. Tennessee Code Annotated § 36-5-103(g) states: “Judgments for child support payments for each child subject to the order for child support pursuant to this part shall be enforceable without limitation as to time.” Tennessee Code Annotated § 36-5-101(f) further supports the conclusion that the parent to whom child support is owed is entitled to seek reimbursement for a child support arrearage even if the child has reached majority by the time the suit is filed.
The party seeking a judgment for delinquent child support has the burden of proving the amount due. The burden may be met by showing the order to pay and the fact of nonpayment. Once this burden is met, the burden shifts to the defendant. A petition to recover unpaid child support is essentially a proceeding to collect a judgment. In such cases, the plaintiff has the burden of proving the judgment and its validity, but the defendant has the burden of proving affirmative defenses, including payment.
Rule 201 of the Tennessee Rules of Evidence provides that a court may take judicial notice of any adjudicative fact “not subject to reasonable dispute” and “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” This limitation means, almost by definition, if a party offers anything other than dilatory or pretextual reasons for opposing the taking of judicial notice, the court should view the fact as subject to reasonable dispute and decline to take judicial notice of it.
After reviewing the record, the Court concluded:
In this action, it appears that the trial court took judicial notice from the original divorce file the fact that child support payments allegedly had been made, as asserted in the answer and letter to clerk, because there is no other direct evidence in the record demonstrating that child support payments had been made. Taking judicial notice of these disputed allegations from a prior, unresolved proceeding was improper. Ex-Wife offered more than “dilatory or pretextual reasons for opposing the taking of judicial notice.” The trial court abused its discretion when it took judicial notice of the disputed facts. . . .
Based upon the judicial notice, the trial judge made credibility determinations and decided the claim on its merits. Because he has made these finding and rulings, we believe it would be appropriate for another judge to hear this matter on remand.
Thus, the trial court was reversed and the case assigned to a different trial judge on remand.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.