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Rule 10 (Court of Appeals). Mmeorandum Opinion. – (b) The Court, with the concurrence of all judges

participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a

formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be

designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in

a subsequent unrelated case.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY 20, 2002 Session

STATE OF TENNESSEE, EX REL MAE CLARK v. CHARLES 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

obligations. The State of Tennessee, on behalf of a custodial parent, sought to reduce arrearage in

the obligations to judgment. The State was successful 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

ALAN E.HIGHERS,J., delivered the opinion of the court, in which W.FRANK CRAWFORD, P.J.,W.S.,

and WILLIAM B. ACREE, JR., S.J., joined.

Marcus M. Reaves, Jackson, TN, for Appellant

PaulG. Summers, Attorney General & Reporter; Stuart F. Wilson-Patton, SeniorCounsel,Nashville,

TN, for Appellee

MEMORANDUM OPINION1

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 per week in child support. Appellant, however, failed to remit any child support

payments to the Circuit Court Clerk’s office as required by the court’s order. 
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Appellant’s statement of the evidence merely states, “Comes the Defendant, Charles Clark, and hereby state

[sic] the following: 1. That there is not a Transcript of the hearing to be filed. 2. That no Technical Record is to be filed

with the Court of Appeals.” A brief technical record, however, was filed.

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On September 5, 2000, the State of Tennessee (Appellee), on behalf of Ms. Clark, petitioned

the court to have $14,000.00 in child support arrearage reduced to a judgment against Appellant.

Hearings were held on September 5, 2000, November 6, 2000, and February 12, 2001. At the

hearings, Appellant alleged that he had paid at least $25.00 per week to Mulligan’s Store for food

and groceries for the minor children instead of paying money to the clerk’s office. The parties

stipulated that Appellant did indeed pay this money to Mulligan’s until some time in 1976.

Appellant also alleged that he continued to reside with Ms. Clark after the divorce and offered

sufficient financial support for the children. Finally, Appellant claimed that he was not the

biological father of the children and demanded that a paternity test be given. His request was

denied. 

Appellant filed a Motion to Set Aside Order and Declare All Arrearage Paid. The court,

however, refused to grant the motion. On May 3, 2001, the court entered a judgment against

Appellant in the amount of $14,000 for the child support arrearage. 

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

arrearage in child support obligations. 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.2d 736, 741 (Tenn. 1988); TENN.R.APP.P. 13(d). We may not reverse the findings

of fact made by the trial judge unless they are contrary 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

failed to file a transcript of the proceedings or a sufficient statement of the evidence2 as required

under Tennessee Rule of Appellate Procedure 24. Without a transcript or sufficient statement of

the evidence, “we must conclusively presume that every fact admissible under the pleadings was

found or should have been found favorably to the appellee.” King v. King, 986 S.W.2d 216, 220

(Tenn. Ct. App. 1998) (quoting Leek 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. Appellant first argues that he should be

given credit for the payments he made to Mulligan’s Store from 1972 to 1976. In support of this

argument, Appellant cites Acree v. Acree, 462 S.W.2d 870 (Tenn. 1971). In Acree, our supreme

court reviewed a chancery court’s refusal to modify an order that directed the obligor spouse to make

child support payments to the court clerk along with a $50.00 monthly commission for the clerk’s

services. Id. at 871. Even though both the father and mother had requested the modification, the

chancery court had denied their request. Id. Apparently, the parties wanted the payments to be made
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directly to the mother to avoid the clerk’s fee. The Acree court held that the chancery court’s

decision was unreasonable given that the statutes governing child support obligations did not require

payments to be set up through the court clerk. Id. at 871-72.

Here, however, we have a very different situation. Appellant never attempted to alter the

court’s order that required him to pay $25.00 each week to the court clerk. Instead, Appellant

ignored this requirement and allegedly paid Mulligan’s Store on a weekly basis. As correctly pointed

out by Appellee, child support orders are judgments entitled to be enforced as any other judgment.

TENN.CODE ANN. § 36-5-101(a)(5) (2001). Further, no credit should be given to an obligor spouse

for payments that were not made in accordance with the support order. Id. at § 36-5-101(a)(4)(A)(ii).

Because Appellant failed to comply with the order, he should be held liable for the arrearage.

Accordingly, we find Appellant’s argument to be unpersuasive.

We further find that the “necessaries rule” as espoused by Tennessee courts also fails to apply

in this case. Under the necessaries rule, courts have held that “non-custodial parents may be given

credit against their child support obligation for payments made on behalf of their children if such

payments are for necessaries that the custodial parent either failed to provide or refused to provide.”

Castle v. Baker, No. E2000-02772-COA-R3-CV, 2001 Tenn. App. LEXIS 709, at *9 (Tenn.Ct.App.

August 2, 2001) (citations omitted). Here, even if we were to assume that Appellant’s payments to

Mulligan’s store were used for the purchase of necessaries, Appellant has not contended that Ms.

Clark ever failed or refused to provide for the minor children. Accordingly, this argument is without

merit.

Finally, Appellant argues that his child support obligations should have been considered

tolled from 1972 to 1976 because he continued to reside with Ms. Clark and the children. Appellant

makes this broad assertion with no citation 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 without merit.

Based on the foregoing conclusions, we hereby affirm the decision of the trial court. Costs

on appeal are assessed against the Appellant Charles Clark and his surety for which execution may

issue if necessary. 

___________________________________ 

ALAN E. HIGHERS, JUDGE