                                                                                         05/17/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                        Assigned on Briefs November 1, 2017

      MICHELLE KAY (CLARK) LOVE v. JAMES TERRILL CLARK

            Appeal from the General Sessions Court for Loudon County
                       No. 5195     Rex Alan Dale, Judge


                            No. E2017-01138-COA-R3-CV




CHARLES D. SUSANO, JR., J., dissenting.

      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 Goldin 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 Goldin. 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.

                                            I.

       Michelle Kay Love, formerly Clark, obtained a default judgment against her
former spouse, James Terrill Clark, in the amount of $36,994.83 for child support
arrearage, among other things. The trial court entered orders of income assignment to
Clark’s employer, directing it to deduct $136.50 per week from Clark’s salary to satisfy
the default judgment. Nine and a half years later, Clark asked the trial court to terminate
the garnishment of his income. Clark alleged he had overpaid Love more than $28,000
because he continued to have his income garnished for over four years after he had paid
enough to satisfy the judgment. The trial court found that Clark’s “overpayments were
made with full knowledge of the facts chargeable to him,” but that they “were not
voluntary payments.” The trial court entered judgment against Love in the amount of
$24,895.09 plus statutory post-judgment interest. We hold that the voluntary payment
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doctrine applies to bar the recovery of overpayments by Clark, who was guilty of
“sleeping on his rights,” with knowledge of all the pertinent facts, for over four years.
We reverse the judgment of the trial court.

       The parties were divorced on February 10, 1992. Three children were born to
their union. Clark was ordered to pay child support. On June 22, 2001, the trial court
entered a default judgment against Clark for unpaid child support, unreimbursed medical
expenses for the children, a portion of Clark’s lump sum severance pay for his early
military discharge, and attorney’s fees. The default judgment in Love’s favor totaled
$36,994.83. Pursuant to the orders of income assignment, Clark’s employer began
deducting $136.50 per week to satisfy the judgment. These orders informed the
employer that “[t]his income assignment is binding upon you until further notice by this
Court.”

        By mid-2001, one of the parties’ children had reached the age of majority, and
Clark had voluntarily surrendered his parental rights with respect to the other two.
Consequently, Clark did not have a continuing child support obligation after the entry of
the default judgment. This case involves only his overpayment of his arrearages as set
forth in the default judgment.

       On December 4, 2015, Clark filed a “motion to stop income assignment and for
judgment of overpayment,” alleging that the garnishments of his income had continued
long after the default judgment was satisfied. In response, Love invoked the voluntary
payment doctrine, which has been expressed by the Supreme Court as follows:

              A person cannot, either by way of setoff or counterclaim, or
              by direct action, recover back money which he has
              voluntarily paid with a full knowledge of all the facts, and
              without any fraud, duress or extortion although no obligation
              to make such payment existed.

Still v. Equitable Life Assur. Soc. of U.S., 54 S.W.2d 947, 948 (Tenn. 1932) (quoting
Standard Oil Co. of La. v. Petroleum Prods. Storage Co., 44 S.W.2d 317, 320 (Tenn.
1931)).

        Following a hearing, a transcript of which is not in the record, the trial court found
the following pertinent facts in its final judgment:

              Clark did not file any pleading to terminate the garnishment
              of his income until the motion of December 4, 2015, nine and
              one-half years after the last [n]otice and [o]rder of [i]ncome
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                [a]ssignment was ordered. Clark claimed he called the
                Clerk’s office three times in the five years preceding the
                hearing to try and check on his child support payments.
                However, he could not remember when he called or who he
                had spoken to in the Clerk’s office. He could not remember
                the questions he asked, nor any responses given by the
                Clerk’s office. He admitted he knew the payments being
                taken out of his pay were sent to the Child Support Receipting
                Office, but offered no proof of any contact with that office.
                He claimed that he did not intend to pay anything more than
                what he owed on the judgment. However, he presented no
                testimony that would demonstrate to the court that he took
                any affirmative steps to keep himself apprised of how much
                he owed or had paid until the filing of his motion on
                December 4, 2015.

                                         *        *       *

                Clark was credited for payments of $80,533.64 and $58.50 in
                fee payments from August 27, 2001, through January 2, 2016.
                By stipulation of the parties, Clark was credited with an
                additional $760[.]

                Love testified that Clark had asked her at one point in time,
                “Do you know when the judgment will be paid in full?” She
                responded that [s]he1 did not know, and that he needed to call
                the (Loudon County) Justice Center. She did not recall
                exactly when this conversation took place. She also testified
                that she never knew when or if the balance had been paid in
                full.

                                         *        *       *

                His child support related judgment obligations were paid off
                in December 2008 (seven and one-half years after entry of
                Judgment). His non-child support judgment obligations were
                paid off in November, 2011 (ten years and five months after


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          The trial court’s order states “he” did not know. However, the context of the statement in the
order, other documents in the record, and both parties’ briefs all suggest that this is a typographical error
and the statement was intended to read that “she” did not know.
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              entry of Judgment). His motion was filed four years and one
              month after his payments satisfied the judgment.

(Term “Father” in original replaced with “Clark” throughout; “Mother” replaced with
“Love”; italics in original omitted; footnote added).

       On appeal, neither party disputes any of the trial court’s findings of fact. The trial
court’s judgment contains these findings and conclusions of law:

              From the proof presented before this court, the court agrees
              that Clark’s overpayments were made by mistake or
              ignorance of the law.         The court also finds Clark’s
              overpayments were made with full knowledge of the facts
              chargeable to him. All payments were made as a result of the
              2006 Wage Assignment Order. Clark knew the amount of the
              Judgment of June 2001, knew the amounts that were being
              garnished out of his paychecks from his paystubs, knew where
              the payments were going, yet he failed to keep himself
              informed as to remaining balance of the judgment and failed
              to take any action to stay the wage assignment order once the
              judgment was satisfied until after four years had passed from
              the satisfaction of the judgment.

              The court also finds that Love was also chargeable with full
              knowledge of these same facts as well. . . . As a result, the
              court finds that the overpayments began and continued as a
              result of the inaction of both parties to keep themselves
              apprised of the declining balance of the Judgment and take
              affirmative action to end the garnishment of Clark’s
              paychecks after the Judgment had been satisfied.

                                   *      *       *

              The court finds that Clark’s overpayments were not voluntary
              payments, in that all overpayments made were pursuant to the
              2006 Order of Income Assignment. The court also finds that
              the 2006 Order of Income Assignment created a legal
              obligation to surrender those payments even though the
              underlying judgment had been satisfied.



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(“Father” in original replaced with “Clark” throughout; “Mother” replaced with “Love”;
emphasis added). The trial court ordered Love to pay $24,895.09 plus statutory post-
judgment interest of 5.5% per annum until she paid the judgment in full. Initially, Love
appealed to the Loudon County Circuit Court. By agreement of the parties, that court
entered an order transferring jurisdiction of her appeal to this Court.

                                           II.

       The issue is whether the trial court erred in ruling that Clark’s overpayments were
not voluntary and in ordering Love to repay the overpayments with post-judgment
interest.

        As previously noted, the facts found by the trial court are undisputed. We review
a trial court’s conclusions of law under a de novo standard with no presumption of
correctness attaching to the trial court’s legal conclusions. Campbell v. Florida Steel
Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993).

                                           III.

       In Newman v. Aluminum Co. of Amer., 643 S.W.2d 109, 112 (Tenn. Ct. App.
1982), this Court, applying the voluntary payment doctrine espoused by the Supreme
Court in Still, stated as follows:

             It has been said that the trend of modern authority is strongly
             in favor of the rule that money voluntarily paid on a claim of
             right, with full knowledge of all the facts, in the absence of
             fraud, duress, or compulsion, cannot be recovered merely
             because the payor at the time of payment was ignorant of or
             mistook the law as to his liability. In other words, it is
             generally well settled that where a person with full knowledge
             of the facts voluntarily pays money under a mistake of law on
             a demand not legally enforceable against him, he cannot
             recover it in the absence of unjust enrichment, fraud, duress,
             or improper conduct by the payee.

(quoting 79 A.L.R.3d 1113, Health Insurer—Restitution of Payments, § 2[a] at 1117).
We have applied this principle to deny recovery of voluntary payments on a couple of
recent occasions. See Cole v. Caruso, No. W2017-00487-COA-R3-CV, 2018 WL
1391625, at *6 (Tenn. Ct. App., filed Feb. 20, 2018); Thomas v. Thomas, No. W2016-
01412-COA-R3-CV, 2017 WL 1404353, at *6 (Tenn. Ct. App., filed Apr. 4, 2017).
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       In the present case, there is no claim of fraud, duress, compulsion, or improper
conduct by Love. Clark 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, Clerk 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. We have observed that,
“generally, the burden [is] on the obligor to come into court and seek any current or
prospective relief to which he may be entitled, by means of a formal court order.”
Corder v. Corder, 231 S.W.3d 346, 359 (Tenn. Ct. App. 2006) (internal quotation marks
omitted). Under the circumstances presented here, we are of the opinion that Clark’s
overpayments should be deemed voluntary.

      Several equitable maxims are helpful and applicable to guide this decision. In
Lebo v. Green, 426 S.W.2d 489, 492-93 (Tenn. 1968), the Supreme Court said:

             Gibson’s Suits in Chancery, First Edition 1891, teaches us,
             consistent with the writings of John Norton Pomeroy, LLD.,
             that there are certain maxims which lie at the foundation of
             universal justice. That these maxims are in the strictest sense
             the beginnings or principles out of which has developed the
             entire system of equity jurisprudence. One of these maxims
             is, ‘Equity aids the vigilant, not those who sleep upon their
             rights’.

In Brown v. Ogle, 46 S.W.3d 721, 727 (Tenn. Ct. App. 2000), we stated:

             Equity never interferes in behalf of a party whose negligence,
             or delay, has caused, occasioned, or contributed to, the injury
             of which he complains. No one can take advantage of his
             own wrong; and when one of two persons must suffer a loss,
             that one shall suffer it whose act, or neglect, occasioned it.
             Clean hands, a pure heart and swift feet are required of him
             who seeks the aid of a Court of Conscience. If, in any case, if
             (sic) appears that the injury complained of might not have
             happened had the plaintiff, or his agents, or attorneys, been
             duly diligent, the Court will stay its hand and decline to
             interfere.



                                           6
(Quoting William H. Inman, Gibson’s Suits in Chancery, § 94, p. 90 (7th ed. 1988);
emphasis added). Finally, we have also observed that “[g]enerally ‘where a party’s
remedy was “in his own hands” and he fails to protect his interest, as a general rule,
neither a court of law nor equity will intervene on his behalf.’ ” Bankers Trust Co. v.
Collins, 124 S.W.3d 576, 579 (Tenn. Ct. App. 2003) (internal brackets omitted); Leeper
v. Cook, 688 S.W.2d 94 (Tenn. Ct. App. 1985). Under the undisputed facts of this case,
both law and equity demand that Clark, not Love, should bear the consequences of his
own unfortunate delay.

                                           IV.

        The judgment of the trial court is reversed, and Clark’s complaint is dismissed.
Costs on appeal are assessed to the appellant, James Terrill Clark. The case is remanded
to the trial court for collection of costs below, which are also assessed to Clark.

      I respectfully dissent from the majority opinion.




                                         _______________________________
                                         CHARLES D. SUSANO, JR., JUDGE




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