Boudreaux v. Boudreaux

373 S.W.3d 329, 2009 Ark. App. 685, 2009 Ark. App. LEXIS 850
CourtCourt of Appeals of Arkansas
DecidedOctober 21, 2009
DocketNo. CA 08-1451
StatusPublished
Cited by6 cases

This text of 373 S.W.3d 329 (Boudreaux v. Boudreaux) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boudreaux v. Boudreaux, 373 S.W.3d 329, 2009 Ark. App. 685, 2009 Ark. App. LEXIS 850 (Ark. Ct. App. 2009).

Opinions

JOHN B. ROBBINS, Judge.

_JjIn this divorce case, appellant Troy L. Boudreaux challenges the amounts of child support and spousal support awarded by the trial court, as well as the trial court’s order making him responsible for appellee Ann McNulty Boudreaux’s attorney’s fees and expert witness fees. We agree with appellant’s argument that the trial court erred in the methodology it used in calculating his income for purposes of setting child support, and we reverse and remand for a redetermination of Mr. Boudreaux’s net monthly income and resulting child-support obligation under the family support chart. Because we remand on the first issue, we also direct the trial court to reconsider the issues of alimony and fees in light of its recalculation of Mr. Bou-dreaux’s income.

2The parties were married on November 14, 1996, and have one child together, Grace Ann Boudreaux, born on March 14, 1998. Ms. Boudreaux filed a complaint for divorce on June 29, 2007. Both parties agreed that Ms. Boudreaux would have temporary custody of Grace as well as permanent custody upon divorce. A temporary order was entered on August 30, 2007, wherein the trial court determined Mr. Boudreaux’s net monthly income to be $16,222 based on his affidavit of financial means. Pursuant to the family support chart, the trial court ordered Mr. Bou-dreaux to pay $2433 in monthly temporary child support, and the trial court further ordered him to pay $3244 per month in temporary alimony as well as other expenses. Prior to the final divorce hearing, Ms. Boudreaux filed a motion for contempt against Mr. Boudreaux because he was delinquent in paying his alimony, child support, and other ordered expenses. The trial court did not find Mr. Boudreaux in willful contempt, but did ultimately order him to satisfy the delinquency.

The final hearing was held on March 20, 2008. At the hearing, it was established that Mr. Boudreaux has been working with a company called Advanced Neuromodulation Systems (ANS) for the past several years. Mr. Boudreaux’s employment involves selling spinal-cord stimulators to physicians. Prior to 2008, Mr. Boudreaux was an independent contractor for ANS and was compensated solely on a commission basis receiving fifteen percent of his sales. However, according to both Mr. Boudreaux and a company vice president, as of January 1, 2008, Mr. Boudreaux was told he could no longer work as an independent contractor and had to become an ANS employee if he wanted to continue | ¡¡their relationship. As of that date, Mr. Boudreaux became an ANS employee and his compensation structure changed significantly. As an employee under the current plan, Mr. Boudreaux receives a base annual salary of $80,000, plus a five-percent commission on all sales. In addition, there are achievement bonuses that he becomes eligible for if he meets certain quarterly and annual goals. Mr. Bou-dreaux is also paid a $500 monthly car allowance.

According to Mr. Boudreaux, there has been a substantial decrease in his income beginning in 2008. He attributed this to a number of factors, including being forced to directly work for ANS, losing the business of three doctors constituting about twenty-five percent of his sales, and changes in reimbursement by government programs and private insurance. Mr. Boudreaux produced documentation that his production was down about seventy percent for the months of January, February, and March 2008 as opposed to the same months for 2007. With the help of an accountant, Steve Schroeder, Mr. Bou-dreaux produced estimates for his annual income for 2008 and corresponding average net monthly income. Based on his actual first quarter sales, Mr. Boudreaux calculated that his average net monthly income will be $6929.66. Mr. Boudreaux also calculated a “best case” scenario where, even if he met all of his quotas, he would earn a net monthly income of $11,892.33. While the record does not include an income tax return for 2007, his returns from 2005 and 2006 reflected monthly net incomes of $15,149 and $17,143. However, Mr. Boudreaux indicated that these figures are not appropriate for calculating his child support because his income has sharply decreased.

|4Patrick Tompkins, a vice president of ANS, also testified for Mr. Boudreaux. Mr. Tompkins acknowledged that Mr. Boudreaux was given a total sales target of $2,693,000 and quota of $2,746,000 in 2008, which was slightly higher than Mr. Bou-dreaux’s actual 2007 sales of $2,656,490. But despite the optimistic target, Mr. Tompkins testified that he did not expect Mr. Boudreaux to meet it in 2008 for a number of reasons, particularly in light of what he called a “rough first quarter.” Mr. Tompkins estimated that Mr. Bou-dreaux would probably take about a $100,000 gross pay cut from 2007 to 2008. However, he also acknowledged that the annual quotas were achievable and that it was conceivable that Mr. Boudreaux might make as much money in 2008 as he did in 2007.

Ms. Boudreaux presented the testimony of her accountant, Bruce Engstrom, who made calculations and estimates of Mr. Boudreaux’s anticipated 2008 income. Mr. Engstrom noted that Mr. Boudreaux’s sales totals from 2003 through 2007 were all in a range between $2,158,380 and $2,698,795, with his 2007 sales totaling $2,656,490. In arriving at Mr. Bou-dreaux’s expected net income for 2008, Mr. Engstrom applied Mr. Boudreaux’s 2007 sales total to his current payment structure as an ANS employee. After completing these calculations, Mr. Engstrom concluded that Mr. Boudreaux’s anticipated average monthly income over the course of 2008 will be $15,287. Mr. Engstrom also calculated the amount of Mr. Boudreaux’s income should he reach his 2008 sales quota of $2,746,000, and testified that in that case appellant’s average monthly net income would be $15,775.

I.Jn the trial court’s letter opinion, the trial court noted the parties’ competing projections for Mr. Boudreaux’s projected 2008 income, but stated, “All income information submitted regarding Defendant’s 2008 earnings are speculation or conjecture.” Rather than relying on any of the parties’ estimates, the trial court found that pursuant to Administrative Order Number 10, section (III)(c) it was required to calculate appellant’s income for child support purposes, as a self-employed pay- or, based upon his last two tax returns. The trial court noted that no quarterly estimates were provided for the current year.

Mr. Boudreaux’s two most recent tax returns were for 2005 and 2006, and reflected gross annual incomes of $273,818 and $313,056. The net monthly incomes for those years were $15,149 and $17,143. The trial court took the average of these figures and determined that Mr. Bou-dreaux’s net monthly income for child-support purposes is $16,146. Applying that amount to the family support chart, the trial court ordered Mr. Boudreaux to pay child support of $2363 per month commencing April 1, 2008, and continuing until further order of the court. In addition, the divorce decree ordered Mr. Boudreaux to pay $2750.00 in monthly alimony to Ms. Boudreaux over the next five years. Ms. Boudreaux subsequently filed a motion for fees, and the trial court entered an order requiring Mr. Boudreaux to pay $12,000 in attorney’s fees and $20,000 in expert-witness fees.

Mr. Boudreaux’s first argument on appeal is that the trial court erred in calculating his child-support obligation on income he received as a self-employed payor as opposed to what he currently receives as an employee. We agree.

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Cite This Page — Counsel Stack

Bluebook (online)
373 S.W.3d 329, 2009 Ark. App. 685, 2009 Ark. App. LEXIS 850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boudreaux-v-boudreaux-arkctapp-2009.