                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-CA-00064-SCT
RONALD KENNETH VICE
v.
DEPARTMENT OF HUMAN SERVICES, STATE OF
MISSISSIPPI

DATE OF JUDGMENT:                             12/18/95
TRIAL JUDGE:                                  HON. PAT WISE
COURT FROM WHICH APPEALED:                    HINDS COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                       GARY DALE THRASH
ATTORNEY FOR APPELLEE:                        HERMINE WELCH PEEL
NATURE OF THE CASE:                           CIVIL - DOMESTIC RELATIONS
DISPOSITION:                                  AFFIRMED - 11/6/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                               12/1/97




     EN BANC.


     BANKS, JUSTICE, FOR THE COURT:




¶1. In this case the Court considers the question of whether a statute of limitations bars the
enforcement of a foreign child support judgment. Because we find that the time limitation was tolled
during the minority of the children, we affirm the chancery court's disposition.

                                                 I.

¶2. Ronald Vice and Pamela Smith were divorced in Louisiana on April 9, 1981. They had two
children, and Mr. Vice was subsequently ordered to pay child support of $200 per month beginning
April 15, 1981. Ms. Smith eventually sued Mr. Vice in Louisiana for arrearage in child support for
their two children, and a judgment was entered against him on April 2, 1987 for $14,000. Following
his failure to pay that judgment, she filed a Uniform Reciprocal Enforcement of Support Action
(hereinafter "URESA") in the Hinds County Chancery Court on November 22, 1994.(1)

¶3. On December 20, 1995, the chancery court entered a judgment against Ronald Vice for $17,042,
the sum of his arrearage in child support payments.(2) This judgment was entered pursuant to a trial
before a Family Master and, following Mr. Vice's objection to the Master's report, another trial
before the chancery court. Prior to the decision, Mr. Vice made an oral motion of an affirmative
defense in which he argued that the 1987 Louisiana judgment was unenforceable in Mississippi
because it was barred by the Mississippi statute of limitations, codified at Miss. Code Ann. § 15-1-45.

¶4. The trial court, adopting the recommendation of the Special Master, overruled the motion and
entered a judgment against Mr. Vice in the amount of the full arrearage, enforcing the Louisiana
judgment and adding on the arrearage that had subsequently accrued. In its Memorandum and
Opinion which preceded the entry of judgment, the chancery court opined that Ms. Smith could
choose to apply the law of Louisiana, the jurisdiction in which she resided during the period of the
failure to pay the support, pursuant to Miss. Code Ann. § 93-11-15. The Louisiana statute of
limitations on actions to enforce the unpaid child support was ten years from the entry of judgment,
and thus her action would not have expired under this rule until April 2, 1997. La. Rev. Stat. Ann.
§ 3501.

¶5. The chancery court also noted that any statute of limitations was tolled during the period of the
children's minority pursuant to Miss. Code Ann. § 15-1-45 since they could not have sued in the
Mississippi chancery court during that period. Since the youngest child did not reach majority until
July 18, 1992, Ms. Smith's filing suit in Mississippi in 1994 was nevertheless within the three year
limitation that commenced at the time of the child's majority.

¶6. Mr. Vice presently appeals the judgment with respect to that portion which enforces the
Louisiana judgment. He reiterates his contention that the statute of limitations precludes any
enforcement of the Louisiana judgment in Mississippi:

     THE STATUTE OF LIMITATIONS IMPOSED BY § 15-1-45 MCA 1972 BARS THE
     ENFORCEMENT, IN MISSISSIPPI, OF A LOUISIANA JUDGMENT RENDERED
     AGAINST APPELLANT IN 1987 WHILE HE WAS A RESIDENT OF THE STATE OF
     MISSISSIPPI.

He does not appeal that portion of the final judgment that addressed his arrearage which accrued
after the entry of the Louisiana judgment.

                                                   II.

¶7. Miss. Code Ann. § 15-1-45 provides as follows:

     All actions founded on any judgment or decree rendered by any court of record without this
     state shall be brought within seven years after the rendition of such judgment or decree, and not
     after. However, if the person against whom such judgment or decree was or shall be rendered,
     was, or shall be at the time of the institution of the action, a resident of this state, such action,
     founded on such judgment or decree, shall be commenced within three years next after the
     rendition thereof, and not after.(3)

¶8. As has been noted, Mr. Vice suggests that this provision precludes Ms. Smith's claim in
Mississippi, since it was filed more than three years after the entry of the Louisiana judgment. He
cites in further support of this position Davis v. Davis, 558 So. 2d 814 (Miss. 1990), in which this
Court held § 15-1-45 applied to the enforcement of child support judgments that originally arose in
Texas.

¶9. In response, Ms. Smith (through the Mississippi Department of Human Services) argues that this
statute is inapplicable, since Miss. Code Ann. § 93-11-15 provides that:

     Duties of support enforceable under this law are those imposed or imposeable under the laws of
     any state or jurisdiction where the alleged obligor was present during the period for which
     support commenced, at the election of the obligee. Awards of custody and orders regarding
     visitation rights are not contestable under the provisions of this law.

Ms. Smith argues that this section entitles her to elect to apply the Louisiana statute of limitations,
which she did during the argument of the proceeding and presently reiterates in this appeal.

¶10. Alternatively, she argues that even if the Mississippi time bar applies, it was tolled during the
children's minority pursuant to § 15-1-59, which provides that any person entitled to bring an action
who is under the disability of infancy at the time at which the cause accrued may bring the action
within the time bar after the removal of the disability. Since their youngest child reached majority (18
years in Louisiana) on July 18,1992,(4) Ms. Smith argues that her petition, filed in November 1994,
was well within the statute of limitations, which did not terminate the cause of action until July 18,
1995.

                                                    a.

¶11. The Mississippi time bar governs this action. The plain text of the statute upon which Ms. Smith
relies in asserting her option to utilize the Louisiana law speaks only to her option to choose the law
in regard to assessing the obligor's duties of support to be imposed:

     Duties of support enforceable under this law are those imposed or imposeable under the laws of
     any state or jurisdiction where the alleged obligor was present during the period for which
     support commenced, at the election of the obligee . . . .

§ 93-11-15 (emphasis added).

¶12. The statute makes no mention of an obligee's option to choose a particular state's law regarding
the enforcement of child support judgments. There is no caselaw that addresses whether this statute
was intended to provide an obligee with the choice of law of enforcement of judgments, and we find
plainly that the text of the statute does not do so on its face.

¶13. Thus, Miss. Code Ann. § 15-1-45, the Mississippi law regarding the enforcement of foreign
judgments, controls this cause. That statute gave Ms. Smith three years from the rendition of the
foreign child support judgment to seek its enforcement in this state, since Mr. Vice was a resident of
Mississippi. Davis v. Davis, 558 So. 2d 814 (Miss. 1990) (applying time limitations of § 15-1-45 to
judgments of unpaid child support which were rendered in Texas but eventually enrolled in
Mississippi).

                                                    b.

¶14. Nonetheless, Ms. Smith correctly notes, and the chancery court correctly held, that the time in
which the suit to enforce the judgment could be filed was tolled by the minority of the parties'
children pursuant to § 15-1-59. In Wilson v. Wilson, 464 So. 2d 496, 498-99 (Miss. 1985), this
Court noted that where a minor holds the legal right, such as to child support from a parent, the
statute of limitations does not begin to run until the disability of minority is removed.

¶15. Mr. Vice has replied to this argument that, even if the time bar was tolled during the minority of
the children, the savings clause of § 15-1-59 does not save Ms. Smith's right to assert her children's
claim because she was not under the disability of minority. Mr. Vice further asserts that any monies
awarded to Ms. Smith at this point would constitute unjust enrichment since both of the children
were emancipated at the time of the petition for enforcement.(5) Mr. Vice cites no authority for his
first proposition, and indeed it is incorrect.

¶16. Our analysis in Wilson dictates a contrary result. In that case, this Court applied the savings
clause to actions for unpaid child support, the result of which was to allow the mother of two
emancipated children to enforce a judgment that held her former husband in contempt of his duty to
pay support during the minority of the children. Neither child was a party to the contempt action
against their children's father, although they both had been emancipated for three and five years,
respectively, at the time their mother filed the contempt suit. The chancery court in that case had
erroneously limited the mother's recovery to those monies that had accrued within seven years prior
to the date on which she filed the contempt action, on the theory that the recovery of monies that had
accrued in the thirteen years before that, during which support was due, was barred by the seven-year
statute of limitations on enforcement of domestic judgments.

¶17. In reversing that holding, we noted that "the custodial parent is not a real party in interest
sufficient to bar the child's recovery of past-due support payments." Wilson, 464 So. 2d at 499. Thus,
we concluded that it would "defy reason" to allow the statute of limitations to run during the
disability of the child. Id. at 498. In reversing the chancery court, we quite clearly affirmed the
mother's standing to assert the child's claim to the past-due support payments, insofar as the claims
were saved from any time bar in light of the disability-through-infancy provision of the savings
clause. Miss. Code Ann. § 15-1-59. Thus, Mr. Vice's argument that the savings clause does not save
Ms. Smith's right to assert her children's interest in the past-due support is without merit.

                                                   c.

¶18. Mr. Vice's second proposition, that Ms. Smith would be unjustly enriched by the enforcement of
the Louisiana judgment, is also without merit. He relies upon the language of a special concurrence in
Williams v. Rembert, 654 So. 2d 26 (Miss. 1995), wherein we expressed concern that a mother who
was suing for child support arrearage ought not be unjustly enriched by receiving monies that accrued
after the emancipation of the child in question. The mother in that case was suing for monies that had
accrued after the child had allegedly moved out of her home, and this Court noted that "a parent's
receipt of child support when the child [was] self-sufficient was unjust enrichment." Id. at 30. The
case was remanded to the chancery court with an order to determine the date of the child's
emancipation and to thereafter assess the appropriate amount of arrearage. The majority opinion did
not address the standing of the child's mother to bring suit for the child support arrearage, but only
addressed her interest in the monies that had accrued after the child's possible emancipation.

¶19. In a special concurrence joined in part by Justice Smith, then-Presiding Justice Lee noted that
the child support arrearage properly belonged to the child, not the mother who had brought the
suit.(6) Chief Justice Lee opined that:

     By the time [the mother] brought this suit, [the child], had reached the age of twenty-one and
     was clearly emancipated. Consequently, under the facts of this case, [the child] was the only
     party who could sue her father to collect back child support payments owed her.

Id. at 32 (emphasis original). Chief Justice Lee expressed concern that the child had not been joined
in the lawsuit as a necessary party pursuant to Miss. R. Civ. P. 19.

¶20. Mr. Vice's reliance on this authority, however, is misplaced. In Williams, the child's custodial
parent was suing for arrearages that had accrued after the child left home and was possibly
emancipated. The potential for unjust enrichment arose because the child's mother was seeking
unpaid child support for a period of time in which it was unclear that she had actually been
supporting the child, since the child had left home. In light of this concern, the cause was remanded
for a determination of the date of the child's emancipation so as to properly assess the amount of the
arrearage: "The record is simply devoid of any proof that [the mother] supported [the child] in any
way after [the child] left [the mother]'s home." Id.at 31 (Lee, P.J., specially concurring).

¶21. Here, in contrast, Ms. Smith is suing to enforce a judgment for child support arrearage that had
accrued while the children were living with her between 1981, the date of the divorce and child
support decree and 1987, the date of the Louisiana judgment. The fact that the children were
emancipated at the time of the suit to enforce that judgment does not necessarily mean that Ms.
Smith will be unjustly enriched by the enforcement of the $14,000 arrearage that the Louisiana court
adjudicated against Mr. Vice in 1987. In Varner v. Varner, 588 So. 2d 428, 433 (Miss. 1991), this
Court noted:

     That the child has been emancipated does not pretermit recovery of vested but unpaid child
     support. Either the child or the former custodial parent may bring an action against the
     defaulting parent, although the latter receives any recovery in his/her continuing fiduciary
     capacity subject to all of the duties and strictures thereof. If by reason of the supporting parent's
     default, the custodial parent is forced to dip into her own resources beyond what would
     otherwise be expected of her, she may recover and retain amounts so proved, subject to
     equitable adjustment should the child's prior needs so suggest.

Id. at 433 (citations omitted). We also noted in that case that the mother, who was suing for unpaid
child support, could recover on behalf of her children but must pay such recovery directly to them,
"save only that she may reimburse herself for sums she may be able to prove she paid to or for her
daughters during the months and years in issue over and above her own support obligations." Id. at
432; see also Wilson, 464 So. 2d at 499 (allowing mother to recover for total of unpaid child support
that accrued while the children were in her custody and during their minority, where children had
reached majority at time of her contempt action).

¶22. In light of this authority, Ms. Smith clearly has standing to lawfully sue to enforce the Louisiana
judgment, which awarded her the child support that Mr. Vice failed to pay during a six-year period in
which the children were both minors and living with her. Her recovery would not constitute any
unjust enrichment in the manner that has previously alarmed this Court, since she was indeed
supporting the children during the entire period that the monies in the subject judgment accrued. We
have plainly allowed parents to sue to obtain unpaid child support where the children have been
emancipated at the time of the suit. See, e.g., Wilson, 464 So. 2d at 496; Varner, 588 So. 2d at
428.(7) The children in this case are not precluded from asserting a claim against Ms. Smith, following
any recovery she may obtain, for monies that they feel are rightfully theirs. See, e.g., Trunzler , 431
So. 2d at 1116. Thus, we conclude that any recovery for Ms. Smith will not work any unjust
enrichment and that her action is not thereby barred.

                                            CONCLUSION

¶23. We hold that the applicable statute of limitations was tolled during the minority of the parties'
children, and thus had not expired at the time of Ms. Smith's claim. Furthermore, Ms. Smith was
entitled to sue to enforce the judgment in her fiduciary capacity to their children's interest in the
monies, since they had accrued while she was the custodial parent and during their minority. Thus, to
the extent that the chancery court's decision relied upon this ground, it is affirmed.

¶24. AFFIRMED.

PRATHER AND SULLIVAN, P.JJ., PITTMAN, ROBERTS, SMITH AND MILLS, JJ.,
CONCUR. DAN LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
McRAE, J. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
LEE, C.J.




     DAN LEE, CHIEF JUSTICE, DISSENTING:




¶25. Under the facts of this case, Ronald Vice's oral motion for an affirmative defense, arguing the
Louisiana judgment for back child support was unenforceable in Mississippi because the filing of the
judgment was barred by the Mississippi statute of limitations, should have been granted. The statute
of limitations at issue is codified at Miss. Code Ann. § 15-1-45. In Davis v. Davis, 558 So. 2d 814
(Miss. 1990), we discussed that Section of the Code, stating that "[t]he statute of limitations for filing
a foreign judgment for enforcement in Mississippi is § 15-1-45, M.C.A. (1972): seven (7) years after
the rendition of the judgment, or three (3) years if the judgment [was against] a resident of
Mississippi . . . ." Id. at 817. There is no question as to Ronald's residency. At all relevant times he
resided in Mississippi, thereby invoking the three-year statute of limitations. Pamela Danos Smith
("Pamela") did not file for enforcement of the foreign judgment within the prescribed three-year
period; therefore, her filing for the enforcement of a foreign judgment is barred by the statute of
limitations.

¶26. The majority attempts to make an argument for applying the savings clause codified at Miss.
Code Ann. § 15-1-59 to the instant case by misconstruing Wilson v. Wilson, 464 So. 2d 496 (Miss.
1985), a factually and statutorily dissimilar case. A close reading of this Section indicates otherwise:

     If any person entitled to bring any of the personal actions mentioned shall at the time at which
     the cause accrued, be under disability of infancy or unsoundness of mind, he may bring the
     actions within the times in this chapter respectively limited, after his disability shall be removed
     as provided by law.

Miss. Code Ann. § 15-1-59 (emphasis added). Clearly, the statute of limitation in Section 15-1-45 is
tolled only for the one under disability: in the instant case, the emancipated children, Devon and
Keely, not Pamela. Had the children filed for the enforcement of the foreign judgment, or had they
been joined as necessary and proper parties by Pamela, pursuant to Miss. R. Civ. P. 19(a), the
decision of the lower court would have been correct. Obviously, the children were not parties in the
instant case; therefore, the decision of the lower court was incorrect.

¶27. For the foregoing reason, I would reverse. Accordingly, I respectfully dissent.

McRAE, J., JOINS THIS OPINION.


     McRAE, JUSTICE, DISSENTING:




¶28. I disagree with the majority's conclusion that the statute of limitations was tolled during the
minority of the children. Were this action brought by either of the children against their father or had
either child joined the mother in her effort to recoup support payments that should have been made
during the years prior to their emancipation, the savings clause provided by Miss. Code Ann. § 15-1-
59 (1995) would be applicable. Accordingly, I dissent.

LEE, C.J., JOINS THIS OPINION.




1. URESA is codified at §§ 93-11-1 through 93-11-63.

2. Mr. Vice conceded an additional $3,042 of arrearage since the entry of the Louisiana judgment in
1987, thus producing the judgment's total of $17,042.

3. Both parties agree that Mr. Vice was a resident of Mississippi at the time of the judgment.

4. Notwithstanding Ms. Smith's argument, the record is rather unclear about which of the parties' two
children is the youngest. The age of Devon, the other child, is listed in the original URESA filing as
May 15, 1975, which would make him younger than Keely (the other child), who was born on July
18, 1974. Keely, however, is identified in Mr. Vice's (the appellant's) reply brief as the parties'
youngest child, which further states that both children had reached 21 years of age by the time that
the Mississippi suit was filed. Reply Brief of Appellant at 6. Keely is also identified in Ms. Smith's
(the appellee's) brief as the youngest child. Brief of Appellee at 10. The chancery court did not
address Devon's age in her order, and neither party noted it in the record of the hearing.

If the original URESA petition has the correct age, Devon's cause of action (or Ms. Smith's
derivative cause of action as his mother) with regard to the arrearage adjudicated in the Louisiana
judgment would not have expired until May 15, 1996, under the combined limitations of Miss. Code
Ann. §§ 15-1-45 and 15-1-59 (statute of limitations on enforcement of foreign judgments and savings
clause for infancy). If Keely is indeed the younger child, then it is not known whether Devon's cause
of action (and Ms. Smith's derivative action) had expired at the time Ms. Smith filed the petition in
Mississippi. In any event, Mr. Vice did not raise at the hearing below nor does he raise in this appeal
any issue that the time bar precluded the claim with regard to Devon's portion of the child support, if
not to Keely's portion.

5. One of the parties' children did live with Mr. Vice for some period of his childhood, but not during
the time when these contested child support duties accrued.

6. This concurrence was not controlling, as the majority opinion was joined by six justices.

7. This Court has held that a custodial parent has no standing to bring an action or seek additional
support for a child after the child attains majority, such as where the child is an incapacitated adult
who cannot support himself. See Taylor v. Taylor, 478 So. 2d 310, 313 (Miss. 1985). We have also
held that only the child (not a noncustodial parent) has standing to sue a custodial parent for an
accounting of the appropriation of their child support monies. See Trunzler v. Trunzler, 431 So. 2d
1115, 1116 (Miss. 1983). In this case, of course, Ms. Smith is seeking to enforce a judgment of child
support monies that accrued during the minority of the parties' children, an action that is well within
her right.
