Delacey v. Delacey

155 S.W.3d 701, 85 Ark. App. 419, 2004 Ark. App. LEXIS 219, 2004 WL 575027
CourtCourt of Appeals of Arkansas
DecidedMarch 24, 2004
DocketCA 03-685
StatusPublished
Cited by25 cases

This text of 155 S.W.3d 701 (Delacey v. Delacey) 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
Delacey v. Delacey, 155 S.W.3d 701, 85 Ark. App. 419, 2004 Ark. App. LEXIS 219, 2004 WL 575027 (Ark. Ct. App. 2004).

Opinion

Larry D. Vaught, Judge.

Appellant Norbert Delacey and appellee Martha Delacey were divorced on March 4, 2003. The trial court divided the parties’ property and awarded appellee custody of the couple’s two children, child support, alimony, and attorney fees. Appellant argues on appeal that the trial court erred in calculating his income for child-support purposes; in fading to consider his work schedule in setting visitation; in awarding alimony to appellee; in dividing, as marital property, his ownership interest in two businesses; in fading to divide appedee’s retirement account as marital property; and in awarding appedee $7,000 in attorney fees.

Calculation of Income for Child Support

Appellant is employed as an obstetrician/gynecologist at the Northeast Arkansas Clinic in Jonesboro. He is paid pursuant to the Clinic’s income distribution plan, as modified for the Women’s Clinic in which he works. The plan pays appellant a percentage of the professional revenues generated by the doctors at the Women’s Clinic, less a percentage of the Clime’s expenses and overhead, to arrive at a Total Net Income figure. The Clinic then deducts certain expenses attributable directly to appellant, such as insurance; dues, membership, and licenses; meeting, travel, and entertainment; payroll taxes; and profit-sharing contributions. This results in a figure called Net Physician Pay, for which appellant receives a paycheck from the Clinic. This figure is appellant’s gross income for tax purposes.

Trial exhibits showed that the Clinic paid appellant $244,291.93 in 2002 and $246,424 in 2001. However, the trial court did not use these figures to calculate appedant’s income for child-support purposes. Instead, the court relied on a calculation made by appellee’s expert, CPA David Worlow. Worlow’s calculation was derived by taking appellant’s Net Physician Pay for the month of November 2002, which was $21,667.02; deducting federal, state, and medicare taxes from that figure; adding back certain expenses directly attributable to appellant, other than insurance and payroll tax; and arriving at a figure of $16,995.68. The trial court adopted this figure as appellant’s monthly income and awarded appellee twenty-one percent of that amount — $3,569.09 — as child support. Appellant now argues that the calculation was erroneous.

Child-support cases are reviewed de novo on the record. Paschal v. Paschal, 82 Ark. App. 455, 117 S.W.3d 650 (2003). It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003). This income may differ from income for tax purposes. See Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002). As a rule, when the amount of child support is at issue, the appellate court will not reverse the trial judge absent an abuse of discretion. McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Paschal v. Paschal, supra.

When awarding child support, the trial judge is required to refer to the child-support chart, and the amount specified in the chart is presumed to be reasonable. Paschal v. Paschal, supra. The version of the child-support chart applicable when this case was tried is found at In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. 1064 (2003), which became effective on February 11, 2002. Section II of the order defines income as:

any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for:
1. Federal and state income tax;
2. Withholding for Social Security (FICA), Medicare, and railroad retirement;
3. Medical insurance paid for dependent children; and
4. Presently paid support for other dependents by court order.

The definition of income included in the Administrative Order is intentionally broad and designed to encompass the widest range of sources for the support of minor children. McWhorter v. McWhorter, supra; Paschal v. Paschal, supra.

Appellant argues that the trial court erred in calculating his monthly income by using his November 2002. earnings as a representative figure, and he points out that November was his second-highest producing month of 2002. He contends that his income is based on production, which varies from month to month and therefore the court should have used a monthly average of his 2002 or 2001 yearly income rather than relying on one particular month. Had the court done so, he says, the court would have arrived at an average monthly income of either $13,009.45 for 2002, which is the $244,291.93 that the Clinic paid him that year, less state and federal withholdings and divided by twelve, or $14,241 for 2001, which is the $246,424 that he received in taxable income, less state and federal income taxes and divided by twelve.

We agree with appellant that the trial court erred in calculating his income by reference to November 2002 only. Appellant’s income fluctuates considerably from month to month over the course of a year. For example, his Total Net Income in 2001 ranged between $19,389 per month and $30,418 per month. In 2002, it ranged between $20,970 and $26,454. Thus, the income generated by appellant in one particular month does not give an accurate picture of his income generally for child-support purposes.

As for what method would give an accurate picture of appellant’s income, our research has revealed no Arkansas case, and the parties have cited none, in which our courts have either approved or disapproved a method for calculating income in the case of a payor whose income fluctuates from month to month. Administrative Order No. 10 does not address this situation, although it does require use of a two-year averaging method in the case of self-employed payors. 1 The case of Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000), cited by appellant, is not on point because it involves the question of whether a bonus may be considered as income for child-support purposes; it does not involve a fluctuating pay schedule. But, despite the lack of precedent on this matter, we conclude that appellant’s income for child-support purposes should have been calculated by averaging his monthly earnings. Cases from other jurisdictions have approved this method when faced with a payor whose income fluctuates. See, e.g., Yerrington v. Yerrington, 933 P.2d 555 (Alaska 1997); In re: Marriage of Nelson, 297 Ill. App. 3d 651, 698 N.E.2d 1084 (1998); Lloyd v.

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Bluebook (online)
155 S.W.3d 701, 85 Ark. App. 419, 2004 Ark. App. LEXIS 219, 2004 WL 575027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delacey-v-delacey-arkctapp-2004.