By Alex Tresniowski, Steve Helling, Linda Marx and Kathy Enrich Dowd People Magazine 03/01/2010
His lawyers asked state high court to review order that client pay $3,000 per month and fund a $250,000 trust
By Andy Peters
It’s not uncommon for judges handling child-support cases to order the noncustodial parent to establish a trust from which the other parent can make monthly withdrawals. But a lawyer for former NFL running back Travis Henry thinks DeKalb County Superior Court Judge Clarence F. Seeliger went too far in 2007 when he ordered Henry to pony up $250,000 to create a trust for one of his children and to make monthly $3,000 payments.
Seeliger said Henry’s history of delinquent payments despite making a huge salary made the trust necessary in case he is late again paying for the child—one of nine he has fathered with nine women, according to Seeliger’s final judgment of paternity and legitimation.
“This is double-dipping,” said Randall M. Kessler, Henry’s lawyer. His client has “to find a way to pay child support and fund this trust. It’s a double payment.”
A three-judge panel of the Court of Appeals disagreed with Kessler’s argument and upheld Seeliger’s order last month. Kessler and attorney David A. Webster on Dec. 9 filed a petition for certiorari with the state Supreme Court.
“The precedent that concerns me as a divorce lawyer is that a judge is seizing assets ‘just in case,’” Kessler said. “Even if [Henry] is current on child support, there is that $250,000 that has been seized and can’t be used for other things.
“If I have a client who’s going to receive child support from a rich husband, now I can say to a judge, ‘Why don’t you seize his $250,000 and create a trust just in case he ever misses a child-support payment.”
Henry, who is serving a 37-month sentence for a federal cocaine trafficking conviction, grew up in Frostproof, Fla. After starting at the University of Tennessee he was drafted by the Buffalo Bills in the second round of the 2001 NFL draft. Henry was chosen for the NFL’s Pro Bowl in 2002, but lost his job as the Bills’ starting running back during the 2004 season. He was traded to the Tennessee Titans in 2005, but was later released.
In 2007 he signed a five-year, $22.5 million deal with the Denver Broncos. But during his time with the Broncos, Henry ran into trouble off the field, in 2008 earning a one-year suspension from the NFL for a positive marijuana test.
“Even upon entering into his large contract [with the Denver Broncos],” Seeliger wrote in his order, “Defendant displayed bad judgment in his spending habits, purchasing a $100,000 car and a large amount of gold jewelry costing $146,000.”
Because of his spending habits and repeated late payments, the trust was necessary to provide financial security for the child, Seeliger wrote. The money placed in the trust, including interest and subtracting any funds deducted to cover for late child-support payments, will be returned to Henry after the child reaches the age of majority.
Henry made good on funding the trust, according to Kessler. But in July, about two years after Seeliger’s order, Henry was sentenced to 37 months in federal prison for his participation in a cocaine-trafficking scheme. Henry was charged with moving up to 11 pounds of cocaine between Colorado and Montana.
Being behind bars makes it impossible for Henry to meet his monthly child-support obligations, since he’s not earning income, Kessler said.
“What does Travis use to pay his other eight children, given the circumstances?” Kessler said.
Jameshia Beacham, the mother of Henry’s 5-year-old son at the center of the DeKalb County dispute, would have preferred that Seeliger had created a routine trust, from which she could draw money on a monthly basis, said her attorney, Robert G. Wellon. But in light of Henry’s federal drug conviction, Seeliger’s order seems prescient, Wellon said.
“If she had her druthers, she’d rather draw down from the trust,” Wellon said. “We would rather have had the entire amount of child-support over an 18-year period placed in the trust.
“This trust was not our first preference, but it’s certainly a method that ensures that the payments are made on time,” Wellon said. “It has worked out at least to this point to [Beacham’s] advantage” since Henry is in prison and unable to earn income.
“But in terms of whether Travis got in a situation where he was not generating income, that’s exactly a valid reason for having this trust in place,” Wellon said. “And he’s not generating income right now because he’s in jail.”
After Henry’s sentencing on the drug charges, Kessler asked the DeKalb Superior Court to modify Henry’s child-support obligations in light of his inability to earn income.
But Seeliger erred in establishing the trust as a security device for “child support payments that were not even due, and may never be due,” Kessler and Webster wrote in the petition for certiorari. They cited O.C.G.A. § 9-5-6, which says, “Creditors without liens may not, as a general rule, enjoin their debtors from disposing of property nor obtain injunctions or other extraordinary relief in equity.”
But the Court of Appeals panel rejected that argument, saying trial court judges have broad discretion when ruling on child-support obligations. Writing for the panel, Judge Sara L. Doyle said Seeliger was justified in creating the trust because of Henry’s “waste or mismanagement of assets.”
“The trial court was presented with numerous facts that even in the face of large debts, Henry spent exorbitant amounts of money on cars and jewelry, had amassed no savings over the course of a lucrative seven-year career, and had been in arrears to Beacham several times under the temporary child support order,” Doyle wrote, joined by Presiding Judge G. Alan Blackburn and Judge A. Harris Adams.
Atlanta attorney Keisha R. Lance Bottoms, who handled Beacham’s appeal with Wellon, agreed with the panel’s assessment.
“The trial judge is to take all things into consideration as it relates to child support and what’s in the best interest of the child,” she said. “That’s exactly what happened here.”
Kessler also argued that Seeliger’s order jeopardizes the child-support payments that Henry’s other children are due to receive.
“This shortchanges his other kids,” Kessler said.
But Seeliger “considered the other child support orders when [he] calculated the support award,” the Court of Appeals panel said. Additionally, the panel said “although it is true that the trust protects the interests of only one child, the trial court did not have the authority to enter trust awards to any of the other children, most of whom do not reside in Georgia.”
According to attorneys, the Henry trust may be the first such trust established in Georgia, although they have been used in other states.
“I know that other states do this as a matter of course, either by statute or by case law,” said Melody Z. Richardson, a family law partner at Pachman Richardson, who is not involved in the Henry case.
“I think it’s a wonderful idea,” Richardson said. “It provides security for the child in a situation where the parent who is to pay is not a good money manager and has demonstrated a history of failure to pay or late payments.”
Stern & Edlin partner Shiel G. Edlin represented Henry in proceedings in DeKalb Superior Court.
The original child-support petition in DeKalb County Superior Court is Beacham v. Henry, No. 04CV10967. Henry’s petition to modify the child-support obligation is Henry v. Beacham, No. 08CV7692. The Court of Appeals opinion is Henry v. Beacham, No. A09A1129.