1 Ru le 10 (C ourt of Ap pea ls). Mm eorandum Opini on . – (b) The Court, with the concurr ence of alljudges

part ici pati ng in the case , may aff irm, rever se ormodify t he act ions of the tri al c ourt by memorandum opinion when a formal opini on would have no pr ecedential value . When a cas e is deci ded by memorandum opinion i t s hall be designate d “MEM ORAN DUM OPINION,” shal l not be publi shed, and shal l not be cit ed or r eli ed on forany rea son in a subsequent unrel ated case

.



### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON FEBRUARY 20, 2002 Session STATE OF TENNESSEE, EX REL MAE CLARK v. CHARLE S CLARK

Direct Appeal from the Circuit Court for Haywood County No. 2566; The Honorable Clayburn S. Peeples, Judge

No. W2001-01896-COA-R3-CV - Filed May 13, 2002

This appeal involves an obligor parent’s failure to comply with court ordered child support obligat ions. The State of

Tenness ee, on be

half of a cust odial par ent, soug ht to redu ce arr

earag e in the obligations to judgment. The State was succe ssful and the custodial parent was awarded $14,000.00 in arrearage. The obligor parent appealed and, for the following reasons, we affirm the lower court’s decision. Tenn. r. App. P. 3; appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and W ILL IAM B. A CREE , J R ., S.J., joined. Marcus M. Reaves, Jackson, TN, for Appellant
Paul G. Summers, Attorney General & Reporter; Stuart F. Wilson-Patton, S enior Counsel, Nashville , TN, for Appellee
MEMORAN DUM OP

INION 1

Charles Clark (Appellant) and Mae Clark

(Ms. Clark) were granted a divorce on August 25, 1972. Ms. Clark was granted custody of the parties’ four minor children and Appellant was ordered to pay $25.00 pe

r week in child supp ort. Appe

llant, how ever, f

ailed to r emit a ny child s upport payments to the Circuit Court Clerk’s office as required by

the court’s order.2 App ellant’s statemen t of the evide nce m erely states, “Comes the De fend ant, C harle s Clark , and here by sta te

[sic ] the f

oll owing: 1. That t

here i s nota Trans cri pt of the hear ing to be fil ed. 2. That no Technical Record is to be fi led with t he Courtof Appeal s.” A brief tec hnical

recor d, however , was f il ed. -2- On September 5, 2000, the State of Tenness ee (App ellee), on behalf of Ms. Clark, petitioned the court to have $14,000.00 in child support arrearag e reduced to a jud gment a

gainst A ppellant

. Hearin gs were hel d on Septe mb er 5, 2000, November 6, 2000, and Februar y 12, 2001. At the hearing s, Appellant alleged that he had paid at least $25.00 per week to Mulligan’s Store for food and groceries for the minor children i nstead o f paying money to the clerk’ s office. The parties stipu lated that Appe

llant did in deed pa

y th is money to Mulliga

n’s until so me time in

1976

. Appella nt also alleged that he continued to reside with Ms. Clark after the divorce and offered sufficient financial support for the children. Fina ll y, Appellant claimed that he was not the biological father

of the ch ild ren and demande d that a paternity test be given. His request was denied. Appellant

filed a Moti on to Set As ide Or der and Declar e All A rrearage Paid. The c ourt, however, refused to grant the motion. On May 3, 2001, the court entere d a jud gm ent aga inst Appellant in the amount of $14,000 for the child support arrearag e. Appellant filed this appeal and

now raises two issues, as we perceive them, for our review

. First, Appellant asserts that the trial court should not have reduced to judgment Appellant’s alleged arreara ge in chi ld su pport obli ga tions. Second, Appellant asserts that the trial court should have granted his Motion to Set Aside Order and Declare All Arrearage Paid. When a civil action is heard by a trial judge sitting without a jury, our review of the matter is de novo on the record, accompanied by a presumption of correctness of the findings below. Foster v. Bue , 749 S.W.2 d 736, 741 (Tenn. 198 8); T ENN
. R. A PP
. P. 13(d). We may not reverse the findings of fact made by the trial judge unless they are contra ry to the preponderance

of the evidence. Jahn v. Jahn , 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996). In the case sub judice , however, Appellant has failedto file a transcript of the proceedings or a sufficient statement of the evidence 2 as required under Tennessee Rule of

Ap pellate Procedure 24. Without a transcript or sufficient statement of the evidenc e, “we m

ust concl usively presume that eve ry fact ad missible un der the p leadin gs wa s found or should ha ve been foun d favorably to the appellee.” King v. King , 986 S.W.2d 216, 220 (Tenn . Ct. App. 1 998) ( quot ing Lee k v. Powell , 884 S.W.2d 118, 121 (Tenn. App. 1994)). Instead of setting out distinct

arguments for each of

his issues, Appellant has made several general arguments with regard to both issues in his brief. Appe llantfirst argues that he should be given credit f

or the pa yme nts he ma de to Mullig an’s Stor e from 19 72 to 1976. In su pport of t his argume nt, Appellan

t cites Acree v. Acr ee , 462 S.W.2d 870 (Tenn. 1971). In Acree , our supr eme court reviewed a chancery

court’s refusal to modify

an order that

directe d the oblig or spouse to make child supp ort pay

ments to the court clerk along with a $50.00 monthly commission for the clerk’s se rvices. Id. at 871. Even though both the father and mother had re quested the modification, the chancery court had denied their request. Id. Apparently, the pa rties wanted the pay

ments to be made-3-

directly to the mother to avoid the clerk’s fe e. The Acreecourt held that the chancery court’s decision was unreasonable given that the statutes g overning child support obligations did not require payments to be set up throug h the court clerk. Id. at 871-72. Here, however, we have a very different situation. Appe l lant never attempted to alter the court’s ord er t hat req ui red hi m t o pa y $25 .00 eac h we ek t o t he c our t cl erk . In stead, Appe llant ignored this requirement and allegedly paid Mulligan’s Store on a weekly basis. As correctly

pointed outby Appellee, c

hild support orders are judgments entitled to be enforced a s any other jud gment. T ENN
. C ODE A NN . § 36-5-1 01(a)( 5) (2001) . Furthe r, no cre dit should

be given to

an oblig or spouse for payments that wer

e not made in a ccorda nce with the support order. Id. at § 36-5-101(a)(4)(A)(ii). Becau se Appellant failed to co mpl y with the order, he should be held liable for the arrearage. Accordingly , we find Appellant’s argument to be unpersua sive.
We further find

that the “necessaries rule” as espouse d by Tennesse e courtsalso fail s to apply in this case. Under the necessaries rule, c ourts have held that “non-custodial parents may be given credit against their child support obligation for pay ments made on behalf of their children if such pay ments are for

necessa ries that the custo dial par

ent eithe r failed to provide

or refu sed to provide.” Cas tle v. Baker , No. E2000-02772-COA-R3-CV, 2001 Tenn. App. LEX IS 709, at *9 (Te nn. Ct. App

. August 2, 2001) (citations omitted). Here, even if we were to assume

that Appe

llant’s pa yme nts to Mulligan’s store were used for the purchase of necessaries, Appellant has not co ntended that Ms. Clark ever failed or refused to provide for the minor children. Accordingly , this argument is without merit.
Fi na ll y, Appellant argues that his child support obl igations should have been considered tolled from 1972 to 1976 because he continued to reside with Ms. Clark and the children. Appellant makes this broa

d assert ion wit h no ci tation to any precedent in support thereof. Our review finds no relevant

case law supporting Appellant’s position either. Accordingly , we also find this argument to be witho

ut merit. Based on the for

egoing co nclusions , we hereby affirm the decision of the trial cou rt. Costs on appeal a

re asse ssed aga

inst the Ap

pellant Charles Clark

and his surety for which execution may issue if necessary.

___________________________________ ALAN E. HIGHERS, JUDGE