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VOL. 124 | NO. 190 | Monday, September 28, 2009

Herenton Faces Child Support Issues

By Bill Dries

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ABSENTEE DAD: Former Memphis Mayor Willie Herenton is going back to Juvenile Court as the mother of his 5-year-old son seeks to modify his child support payments. -- PHOTO BY BILL DRIES

Michael J. Herenton turned 5 over the weekend. It was a difficult transition.

He and his mother, Claudine Marsh, had to move out of their home in the Atlanta area because of flooding.

Meanwhile, Marsh has been talking by phone with her son’s father, former Memphis Mayor Willie Herenton, about his recent decision to quit his job. Herenton’s last day in office was July 31.

The child support dispute went back to Juvenile Court just before Michael’s birthday as a petition for contempt and to modify child support was filed Thursday against Herenton in Juvenile Court of Memphis and Shelby County.

The petition seeks to change the child support payments Herenton has been making since 2005.

Next steps

Marsh met Herenton in late 2003 while she worked at The Peabody hotel. Herenton acknowledged later he was the boy’s father. He agreed to pay $2,100 a month in child support and to provide health insurance for Michael as well as use any city pension benefits as security on future child support.

“He’s been paying his child support,” attorney Patricia A. Woods, who represents Marsh, told The Daily News. “It’s our position that the child support should be increased. The primary issue is that under terms of the 2005 order, Mr. Herenton was required and agreed to … take the city of Memphis pension and make those benefits payable to their minor child.”

The monthly child support payments were based on Herenton having 80 days of visitation a year with the child as well as his income as mayor.

“The more days you spend, obviously the lower the child support is,” Woods said. “In this case, there have been no days spent with the child.”

Woods said she and co-counsel, William W. Jones IV, filed the motion after repeated attempts to contact Herenton and his attorney. Herenton could not be reached for comment.

The first step in the matter will be a Juvenile Court hearing to freeze the $506,000 lump sum pension payment until there can be a hearing to determine how much should go to Michael. The motion also seeks $250,000 to be held in a trust fund for the child.

The civil contempt proceedings touch on some of the most controversial aspects of Herenton’s later years as mayor, his private business dealings.

“There are certainly political implications. We certainly understand that,” said Jones, who is serving as co-counsel because he lives in Mississippi. “We are not naïve enough to believe that there’s not going to be some blowback on this. … I don’t care if he’s running for anything. I care what kind of father he is.”

A federal grand jury has been investigating land deals as well as money from mayoral Christmas parties for about a year to determine if Herenton crossed the line separating public duties from private business.

Herenton repeatedly has denied any wrongdoing and has not been charged with any crime. He told The Daily News this month he has never been notified that he is the target of the grand jury probe. Herenton has also refused to talk in any detail about his outside business interests.

‘Legal responsibility’

In the Juvenile Court matter, Herenton might be forced to talk about those outside business interests in depositions that probably would be sealed.

“We’re not sure that the income was correct,” Jones said referring to the 2005 child support agreement and court order. “That’s all income. That’s income that should have been figured in. … And until we get a chance to depose him, we won’t know what his income is.”

Because the contempt proceedings are civil and not criminal, Herenton could not invoke his Fifth Amendment rights to refuse to testify if there was anything incriminating he didn’t want to admit to.

“If someone doesn’t answer the questions in a civil matter, then the court is allowed to assume that the answer would hurt whoever was supposed to be answering that,” Woods said. “And realistically we don’t want the court to put Mr. Herenton in jail.”

Herenton’s resignation to run for Congress in 2010 against incumbent Steve Cohen amounts to what is called “voluntary underemployment” in child support cases.

“You can’t willfully and voluntarily underemploy yourself,” Jones said. ”He can’t guarantee he’s going to win this election. There’s no income stream. And in light of that we’ve got to make sure these funds aren’t dissipated.”

Marsh has declined comment directly, Jones said. She has talked with Herenton in recent days, Woods said, and also has been forced to move because of flooding in the Atlanta area.

“Basically, what we’re asking the court is to treat Mr. Herenton the way they would treat any other non-custodial parent who quit their job without making provisions for their minor child,” Woods said. “He has a legal responsibility to this child and we’re asking the court to enforce it.”

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