Overpayment of Arrearage Divides Court in Loudon County, Tennessee Child-Support Case: Love v. Clark

FactsWhen the parents of three children divorced in 1992, Father was ordered to pay child support.

Nine years later, while Father no longer had a continuing child-support obligation, he owed past-due child support. Mother obtained a default judgment that included amounts for child-support arrearages, unreimbursed medical expenses for the children, Mother’s portion of a lump-sum payment owed to her because of Father’s early military discharge, and attorney’s fees.

Tennessee child support voluntaryAn income assignment was issued to Father’s employer directing it to deduct $136.50 per week from Father’s salary to satisfy the judgment.

In 2015, Father moved to allege that the garnishments of his income had continued long after the judgment was satisfied. He sought to stop the income assignment and receive a judgment for the overpayment.

The trial court determined that the original judgment had been satisfied in December 2008, 7 ½ years after the judgment was entered. Father was awarded a judgment against Mother for nearly $25,000 plus statutory postjudgment interest.

Mother appealed.

On AppealIn a 2-1 decision, the Court of Appeals affirmed the trial court.

Mother argued that Father’s child-support overpayments were voluntary and his recovery prohibited by the voluntary payment doctrine.

The voluntary payment doctrine holds that a person cannot, either by way of setoff or counterclaim, or by direct action, recover back money which he or she has voluntarily paid with a full knowledge of all the facts, and with no fraud, duress, or extortion, although no obligation to make such payment existed.

Here, applying the doctrine turned on whether the deductions from Father’s pay per the court order were voluntary. While the trial court found Father’s overpayments were made with full knowledge of the facts chargeable to him, it also found the payments were not voluntary.

An involuntary payment is made against the will of the person who pays. It implies there is some fact or circumstance that overcomes the will and imposes a necessity of payment to escape further ills.

In cases of payments compelled by courts, courts typically deem such payments involuntary. This includes wage assignments.

The majority of the Court agrees with the trial court that Father’s overpayments were involuntary:

[W]e sustain the trial court’s determination that the payments taken from [Father’s] pay were involuntary. The amount of time [Father] took to seek a stop to the wage assignment is concerning. But as the court’s final order made clear with its attached tables, determining when the default judgment was satisfied was not as simple as finding a calculator. The default judgment awarded interest at a statutory rate, without specifying that rate. As the trial court correctly concluded, two different statutory rates applied to the judgment. The court then determined that payments from the wage assignment should be applied first to the child-support arrearage, which further impacted the date the default judgment was satisfied. . . . Thus, we agree with the trial court that the voluntary payment doctrine did not apply to bar [Father’s] recovery.

Dissent: Judge Susano believes the recovery of Father’s overpayments should be barred as voluntary:

In the present case, there is no claim of fraud, duress, compulsion, or improper conduct by [Mother]. [Father] cites no legal authority in his brief to support his argument that his overpayments should be considered as being involuntarily made. As the trial court correctly found, [Father] knew, or is charged with knowledge of, the amount of the default judgment, the amount of his weekly payments, and that they were being automatically deducted by his employer pursuant to court order. All that he needed to do to protect his interest was to spend a few minutes with a calculator. Unfortunately for him, he did not do this until more than four years of making overpayments.

Judge Susano also argues that his interpretation follows these equitable maxims:

Equity aids the vigilant, not those who sleep on their rights.

When one of two persons must suffer a loss, that one shall suffer it whose act, or neglect, occasioned it.

Where a party’s remedy was in his own hands and he fails to protect his interests, as a general rule, neither a court of law nor equity will intervene on his behalf.

K.O.’s Comment: (1) Compare this case with In re Andrea R., where the voluntary payment doctrine barred recovery of a child-support overpayment.

(2) I’ve seen nothing like this introductory passage from Judge Susano’s dissent until this opinion:

Originally, I was assigned the task of drafting an opinion in this case. I circulated my draft to the other panel judges, the Honorable W. Neal McBrayer and the Honorable Arnold B. Goldin. Judges McBrayer and Golden do not agree with me “that the voluntary payment doctrine barred recovery.” I have read the majority opinion drafted by Judge McBrayer and concurred in by Judge Golden. I now formally dissent from that majority opinion.

In order to bring into sharp focus my differences with the majority, I now set forth the entirety of my original draft.

Love v. Clark (Tennessee Court of Appeals, Eastern Section, May 17, 2018).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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