DOTTLEY v. Miller

276 S.W.3d 729, 101 Ark. App. 323, 2008 Ark. App. LEXIS 135
CourtCourt of Appeals of Arkansas
DecidedFebruary 20, 2008
DocketCA 07-426
StatusPublished
Cited by3 cases

This text of 276 S.W.3d 729 (DOTTLEY v. Miller) 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
DOTTLEY v. Miller, 276 S.W.3d 729, 101 Ark. App. 323, 2008 Ark. App. LEXIS 135 (Ark. Ct. App. 2008).

Opinions

Sam Bird, Judge.

The issue in this case is whether the trial court erred in on a for modification of child support without hearing any testimony or receiving any evidence. We hold that the trial court did err, and we reverse and remand for a hearing on the petition.

Appellant Paul Lewis Dottley, Jr., and appellee Melanie Beth (Dottley) Miller were divorced on October 2, 2000. On January 15, 2006, appellant filed a petition for modification of child support, alleging a change in circumstances justifying a decrease in child support. Appellee answered, requested an increase in child support, and filed a counterclaim for contempt. The trial court set the case for a hearing on December 21, 2006.

The record reflects that on December 21, 2006, the trial court requested the attorneys to identify themselves and the parties they represented. The court then explained that there were two matters before the court: a petition to modify support and a motion for contempt. The following includes the remainder of the proceedings:1

The Court: ... I visited with the attorneys in the back and received some indication of what the anticipated testimony might be. And from that I reached a decision. Mr. Harper, would you announce it?
Mr. Harper: Yes, sir, Your Honor. Mr. Dottley owes to my client the sum of $800.00 in back child support. In addition he owes the sum of $185.00 for school fees, which he has not paid. That total is $985. That amount will be paid within ninety days of today’s date.
In addition, my client will be awarded attorney’s fees of $500.00 for Defendant’s failure to follow the previous orders of the court. That fee will be paid within ninety days.
The Plaintiffs petition for increase is denied. The Defendant’s petition for a decrease is denied. The tax deduction will continue to be carried by my client.
During the summer months when the Defendant has the child for at least fourteen days he will be entitled to a reduction of one-half of his child support obligation. The child support will continue to be $400.00 per month.
The parties previously in a property settlement agreement provided that they would each be responsible for one-half of private school tuition and expenses. That agreement was entered into during the divorce and the Court finds it shall continue to be enforced. Therefore, they will both continue to be responsible for half of the tuition and fees for the private school the child is attending.
The Court: Okay. Very well. And this is the ruling of the court. Is there anything further, Mr Haddock?
Mr. Haddock: Excuse me, Your Honor?
The Court: I said that’s the ruling of the Court.
Mr. Haddock: Just note our objection, Your Honor, that the Court ruled without taking any evidence, any testimony, looking at none of the evidence to be presented in this case. That he ruled basically on all the representations ofMs.Dottley’s attorney and to that we object.
I’ve tried about a thousand of these cases and this is the first time I’ve ever had a ruling without any evidence. To that we object and to that we’re going to appeal.
The Court: Well, you know, while we’re here you can
Mr. Haddock: The Court’s announced [its] ruHng. If we’re going to have a hearing I’m going to ask the Court to recuse, because the Court’s already decided what he’s going to do without the first witness taking the stand.
The Court: Okay. Well, yeah, that’s my ruling based upon the proposed facts as I appreciate them to be if this matter was presented to the Court.

The trial court entered an order on January 31, 2007, denying appellant’s request for a decrease in child support and essentially incorporating the rulings set forth above in its oral pronouncement. Appellant filed a timely appeal from the order.

Appellant’s argument on appeal is that the trial court erred by, in essence, granting a summary judgment when it ruled without allowing testimony or receiving any evidence. Appellant claims that summary judgment is an extreme remedy; that this case is fact intensive; and that summary judgment was therefore inappropriate. Appellee responds, arguing that this court’s review is limited to the record, and that appellant’s failure to proffer evidence or testimony precludes our review on appeal, citing Duque v. Oshman’s Sporting Goods, 327 Ark. 224, 937 S.W.2d 179 (1997), and other cases standing for this proposition. Appellee claims that it is apparent that the trial court was attempting to offer appellant an opportunity for a hearing when it said, “Well, you know, while we’re here you can —” and that appellant’s counsel declined the offer. Appellee also argues that the record does not contain any evidence or testimony upon which a request to reduce child support could be granted, that the appellant offered nothing to meet his burden of showing that a change in circumstances had occurred, and that evidence and testimony not proffered will not be considered on appeal.

A change in circumstances must be shown before a court can modify an order for child support, and the party seeking modification has the burden of showing a change in circumstances. Reynolds v. Reynolds, 299 Ark. 200, 771 S.W.2d 764 (1989). In determining whether there has been a change in circumstances warranting adjustment in support, the supreme court has held that the trial court should consider remarriage of the parties, a minor reaching majority, change in the income and financial conditions of the parties, relocation, change in custody, debts of the parties, financial conditions of the parties and families, ability to meet current and future obligations, and the child-support chart. Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005).

On appeal, we review child-support awards de novo on the record. Martin v. Scharbor, 95 Ark. App. 52, 54, 233 S.W.3d 689, 692 (2006). A trial court’s determination regarding whether there are sufficient changed circumstances to warrant a modification in child support is a question of fact that we will not reverse unless it is clearly erroneous. Woodson v. Johnson, 63 Ark. App. 192, 975 S.W.2d 880 (1998). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Martin, 95 Ark. App. at 54, 233 S.W.3d at 692.

In order for the trial court to make the factual determination of whether there have been sufficient changed circumstances to warrant a modification of child support, the trial court must consider evidence.

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DOTTLEY v. Miller
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Cite This Page — Counsel Stack

Bluebook (online)
276 S.W.3d 729, 101 Ark. App. 323, 2008 Ark. App. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dottley-v-miller-arkctapp-2008.