Evans v. Tillery

204 S.W.3d 547, 361 Ark. 63
CourtSupreme Court of Arkansas
DecidedMarch 3, 2005
Docket04-688
StatusPublished
Cited by32 cases

This text of 204 S.W.3d 547 (Evans v. Tillery) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. Tillery, 204 S.W.3d 547, 361 Ark. 63 (Ark. 2005).

Opinion

Robert L. Brown, Justice.

Appellant Floyd Evans appeals from the circuit court’s order modifying his monthly child-support obligation to a payment of $390.00 per month and ordering him also to pay as child support a one-time lump-sum amount of $31,195.95, representing fifteen percent of two judgments he received. He asserts three points on appeal. We disagree that the circuit court committed reversible error, and we affirm the court’s order.

On August 25, 2003, appellee Catherine Tillery filed a motion to modify a 1996 order of child support. In her motion, she alleged that she was awarded custody of the couple’s daughter, M.E., in 1996, and that Evans had originally been ordered to pay $350.00 each month in child support. She further alleged that since that time, there had been a change in circumstances in that (1) Evans had increased his employment income through regular employment, and (2) he had been awarded two judgments, totaling approximately $435,000.00. Tillery requested an increase in her monthly child-support award and also fifteen percent of Evans’s judgment awards.

Evans responded and denied any substantial change in circumstances and also denied that his income had increased since the entry of the 1996 order. He admitted that while he had been awarded a judgment for $35,000.00, he had settled for $20,000.00. He further admitted that while he was awarded a separate judgment for $400,000.00, he only received $280,000.00 of that amount. Evans denied that either judgment was subject to levy for child support.

The circuit court held a hearing on Tillery’s motion. After hearing testimony from both Evans and Tillery, as well as arguments of counsel, the circuit court made the following ruling:

The Court: But, at any rate, in my judgment, Mr. Evans, you’re going to have to pay child support, based upon the net amount that you relieved [sic] from the malicious prosecution suit and from the assault suit. And that net amount, as I understand it, is $207,973. That’s taking into account the $6,000 that was paid previously.
The child support formula is 15 percent of that amount. And, Counselor, you need to check my arithmetic, because I didn’t have a calculator up here, and I sort of hurriedly figured that. But, if my arithmetic is correct, the amount of the child support is $31,195.95. A judgment shall be entered for that amount.
Ms. Lindsey, as I said earlier, that’s not money that you can take and go out and spend on Christmas presents. 1 That’s for the benefit of your child, and the Court directs that you account for the expenses for this — of all this money, because it’s over and above what else you have.
And so, you’ll need to do that. Mr. Davis will advise you how you need to handle that. I notice now that the net amount of Mr. Evans’ income today is — he’s making $15 an hour. According to his Affidavit of Financial Means, he gets $464.10 a week, net. Have I picked up the right figure on that?
Evan’s Counsel: That’s right, your Honor.
The Court: Again, figuring four and a third weeks a month, the monthly amount is $1,996.63. The child support chart reflects that a child support amount should be $383 per month, so the reoccurring child support, from this day forward then, shall be $383 per month. ...

An order was then entered, memorializing the circuit court’s decision. However, the circuit court’s order reflects the following rulings: 2

3) That the Court finds that the Plaintiff/Respondent received by way of settlement of judgments against a banking institution and an individual, sums totaling Three Hundred Thousand Three Hundred Thirty Four Dollars ($300,334.00), from which medical, lost wages, State and Federal taxes in the sum of Ninety Eight Thousand Three Hundred Sixty One and 90/100 Dollars ($98,361.90) was deducted leaving Two Hundred Seven Thousand Nine Hundred Seventy Three Dollars ($207,993.00) for total net judgment.
4) That over Plaintiffs stated objections the Court finds no merit in Plaintiffs arguments as annunciated in his pre-trial brief filed of record and therefore the Court finds that the Defendant/Petitioner shall be entitled to judgment against the Plaintiff/Respondent in the sum of Thirty One Thousand One Hundred Ninety Five and 95/100 Dollars ($31,195.95), equating to fifteen percent (15%) of the net of the net [sic] judgment for a one time child support award on said judgments. Further, Defendant is to provide a monthly itemization to Plaintiff as to how the money is expended with invoices to substantiate.
5) That Plaintiffs current support, based on his Affidavit of Financial Means submitted in this cause, shall be set at Three Hundred Ninety Dollars ($390.00) per month. 3

Evans urges, as a point on appeal, that the circuit court wrongly concluded that there was a material change in circumstances which warranted a change in his child-support obligation. He recites case law dealing with the required change in circumstances but neglects to make any arguments in support of that point in his brief other than a conclusory statement that a change had not occurred.

Tillery responds that Evans’s brief does not set forth an argument other than the bare allegation that there was not a material change of circumstances. Nonetheless, Tillery asserts that since the previous award of child support, Evans had an increase in income, as well as a change in his financial condition, which are material changes of condition warranting a change in Evans’s child-support obligation.

In McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001), this court set forth its standard of review in child-support cases:

We review chancery cases de novo on the record, and we will not reverse a finding of fact by the chancery court unless it is clearly erroneous. Ark. R. Civ. P. 52(a); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). In reviewing a chancery court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Hunt v. Hunt, 341 Ark. 173, [15 S.W.3d 334]. As a rule, when the amount of child support is at issue, we will not reverse the chancellor absent an abuse of discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). However, a chancellor’s conclusion of law is given no deference on appeal. City of Lowell v. M & N Mobile Home Park Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).

346 Ark. at 480, 58 S.W.3d at 843 (quoting Kelly v. Kelly, 341 Ark.

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Bluebook (online)
204 S.W.3d 547, 361 Ark. 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-tillery-ark-2005.