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IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN



INA FAITH KELMAN



Plaintiff FAM. NO. D188/84



Ve



SANFORD KELMAN

Defendant



eee See et Neuer Set Semi meet Set Smet



INA FAITH CAMPBELL, Esquire



P. 0. Box 878



St. Thomas, Virgin Islands 00801

Pro Se



ANDREW CAPDEVILLE, Esquire



P. O. Box 6576



St. Thomas, Virgin Islands 00801

(Attorney for Defendant)



FEUERZEIG, J



MEMORANDUM OPINION

(May 73, 1985)



The court is required to determine whether the plain~

tiff is entitled to interest on child support arrears, and,

if so, whether her claim is barred by laches. The court

concludes that the plaintiff's claim is both valid and

timely.



I.



By an October 25, 1972 divorce decree, the defendant



Sanford Kelman was ordered by the District Court of the



Virgin Islands to pay child support of $200 per month.

PAGE: 2



Mr. Kelman quickly fell behind in his payments and the

Government of the Virgin Islands moved to hold him in

contempt. In lieu of finding him in contempt, Judge Eileen

R. Petersen, sitting as a district court judge by *

designation, on April 23, 1975 found Mr. Kelman $3,700 in



1/



arrears and granted Ina Campbell -" a judgment in that

amount. Mr. Kelman did not pay the judgment until September

12, 1983, and Mrs. Campbell now seeks interest on the $3,700

from the date of the 1975 judgment until it was paid.

Ir.

Mrs. Campbell bases her claim on 5 V.I.C. §426 (1984

Supp.), which states:



The rate of interest on judgments and decrees

for the payment of money shail be 9 percent per

annum.



The April 23, 1975 judgment clearly was for the payment of

money; therefore, section 426 applies.



Mr. Kelman's only argument for exempting child support

arrears from the statute's coverage is that “child support

is substantially different from transactions in which one



could normally expect to pay interest." He offers no case



or statutory support for this contention, nor has the



l/ Mrs. Kelman by the time of the April 23, 1975 hearing

remarried. She now goes by the name Ina Campbell.



2/ Defendant's Memorandum of Law in Opposition to Assess-

ment of Interest.

PAGE: 3



court's independent research disclosed any support for his

position. In fact, the court's research indicates that

interest may be recovered on child support arrears.

Moreover, this court has held that interest is recoverable



for arrears in child support. Watlington v. Canton, 18 V.I.



204, 209 (Terr. Ct. 1982) (drawing an analogy between

support arrears and alimony arrears, where interest

generally has been allowed). Other courts have reached the



same conclusion. E.g., Sutton v. Leib, 199 F.2d 163 (7th



Cir. 1952); Finley v. Finley, 410 N.E.2d 12 (Ill. 1980);



Loomis v. Loomis, 255 S.W.2d 671 (Ark. 1953), and Burke v.



Burke, 255 P.2d 740 (Colo. 1953). Consequently, the court

can find no justifiable reason for distinguishing child

support awards from other types of judgments in awarding

statutory interest.



Iit.



Mr. Kelman next argues that even if child support

arrears do bear interest, Mrs. Campbell's claim should be

barred by laches. The court disagrees.



This issue is controlled by the Restatement of Restitu-



tion §148 (1937). 2 v.r.c. §4 (1967) 2/ and Brandy v.



’



3/ Title 1 V.1I.C. §4 (1967) provides:

The rules of the common law, as expressed in the



restatements of the law approved by the American Law

Institute, and to the extent not so expressed, as

generally understood and applied in the United States,

shall be the rules of decision in the courts of the

Virgin Islands in cases to which they apply, in the

absence of local laws to the contrary.

PAGE: 4

Brandv, Fam. No. D46/79 (Terr. Ct., February 27, 1985)

Section 148 provides:



(1) In proceedings in equity, a person other-

wise entitled to restitution is barred from recovery

if he has failed to bring or, having brought has

failed to prosecute, a suit for so long a time and

under such circumstances that it would be inequitable

to permit him now to prosecute the suit.



For a claimant's delay to be inequitable it must have

been unreasonable and must have caused a hardship to the

debtor. Id. Comment a. Mr. Kelman's failure to pay child

support has been a continuing problem, one that Mrs.

Campbell repeatedly brought to the court's

attention. A/ The parties appeared in court on numerous

occasions since the 1975 judgment, particularly during the

period immediately after the judgment was rendered. On all



occasions, Mrs. Campbell referred to her claim for the



$3,700 due under the judgment as well as new claims for



current support. Since she encountered such difficulty in

getting Mr. Kelman to pay his obligation of $200 -- which

was reduced on July 6, 1977 to $130 per month ~- Mrs.



Campbell reasonably may have believed it was impossible to

compel him to pay $3,700 in arrears. In fact, she secured

payment of the judgment only by placing a lien on Mr.

Kelman's property. Under these circumstances, the court



cannot find that Mrs. Campbell's delay was



4/ See, e.g., The order of February 28, 1977 finding Mr.

Kelman in contempt and in arrears $1,055 due to his failure

to make payments between September of 1976 and January of

1977, and the order of August 21, 1984 granting Mrs. Campbell

a judgment of $1,190.00 for unpaid child support between



July of 1983 and August 1, 1984.

unreasonable.



The court also cannot find that her delay will cause

Mr. Kelman hardship. Mr. Kelman claims that had he known he

would be assessed interest on his arrears, he might very

well have paid them earlier just “to keep the interest at a

manageable level." This argument only begs the question.

If he was able to pay his arrears earlier, why didn't he?

He knew he had an obligation to do so. Yet, the record is

void of Mrs. Campbell taking any action that would permit

Mr. Kelman reasonably to assert that he was led to believe

that he had been released from that obligation. In fact,

Mrs. Campbell not only secured a judgment against him for

that obligation but has continued to assert it through the

years. Moreover, Mr. Kelman has enjoyed the use and

benefits of that $3,700 for at least 10 years. Conversely,

Mrs. Campbell has been denied the use of that money for the

same period.



Interest represents an attempt to have Mr. Kelman pay

the true value of what he owes Mrs. Campbell. It is

intended as neither a bonus to her nor a penalty to him.



Interest merely will confer on Mrs. Campbell approximately



the same benefits she would have enjoyed had the debt been



paid on time. Accordingly, Mr. Kelman cannot reasonably

claim that Mrs. Campbell's delay caused him hardship. 5/

Those courts that have denied interest because of

laches have done so only where the claimant acted so as to



lead the debtor to believe his duty of support had terminat-



ed. For example, in Atwater v. Atwater, 18 I1ll.App.3d 202,



309 N.E.2d 632 (1974), the husband believed the wife's

remarriage terminated his duty of support and he stopped

paying from that moment. His former wife appeared to

acquiesce and did not seek support for many years after her



remarriage. In Sutton v. Leib, supra, the wife not only did



not seek support, but her attorney wrote letters to the

ex-husband suggesting she would not be seeking it. As noted,

Mrs. Campbell's actions permit no such conclusion. [In fact,

the opposite is the case. Therefore, her claim for interest

should not be barred by laches.



Iv.



One final point deserves mentioning. In Watlington v.



Canton, supra, this court held that it would calculate



5/ . Indeed, the court takes judicial notice of the fact that

during the almost 10 year period that the judgment remained

unpaid, the rate of inflation has averaged 8.17 per cent

annually, reaching 13.52 per cent in 1980. U.S. Department

of Labor, Bureau of Labor Statistics, Consumer Price Index

(Urban), Monthly Labor Review. Consequently, even after

paying the statutory interest to Mrs. Campbell, Mr. Kelman

still will enjoy some of the benefits of his delay.

PAGE:



7



interest on unpaid support



nstallments



from the date each



installment became due, but would do so only prospectively.



In this case Mrs



Campbell



eeks interest only from the date



of the 1975 judgment



Since she has asked for interest only since 1975 and



since almost all of the period in which support remained



unpaid predates Watlington, the court will award Mrs.



the date the



Campbell interest solely from April 23



1975,



judgment was entered, until the judgment was paid.



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“JUDGE



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ATTEST



VIOLA E. SMITH



Administrator/Clerk of the Court



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SENIOR DEPUTY- CLERK,



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CERTIFIED A TRUE COPY



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Vio” E. Smith



Clerk y the Court



BY Dat. 2c VOM



Deputy