Gilbow v. Travis

2010 Ark. 9, 372 S.W.3d 319, 2010 Ark. LEXIS 12
CourtSupreme Court of Arkansas
DecidedJanuary 14, 2010
DocketNo. 09-438
StatusPublished
Cited by6 cases

This text of 2010 Ark. 9 (Gilbow v. Travis) 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
Gilbow v. Travis, 2010 Ark. 9, 372 S.W.3d 319, 2010 Ark. LEXIS 12 (Ark. 2010).

Opinion

ELANA CUNNINGHAM WILLS, Justice.

liThis court granted appellant Kathy Travis Gilbow’s petition to review the court of appeals’s decision in Gilbow v. Travis, 2009 Ark. App. 254, 2009 WL 936945, which she contends is inconsistent with Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000). As an issue of first impression, this case requires us to determine whether a trial court has the authority to order that an arrearage resulting from a retroactive increase in child support be placed in an account in the noncustodial parent’s name to provide for the future needs of the children.

Gilbow and appellee Patrick Travis were divorced in 1999. Gilbow received custody of the parties’ two children, and Travis was ordered to pay alimony for five years and child support. In November 2006, Travis filed a petition in the Benton County Circuit Court seeking an order to enforce mid-week visitation rights with the children. Gilbow filed a Rcounter-petition on December 20, 2006, seeking an increase in child support. On October 29, 2007, the circuit court entered an order that granted Gilbow’s petition for an increase in child support, increasing the amount of support from $6,500 to $10,317 per month. The amount awarded was a downward deviation from the child support chart provided by Arkansas Supreme Court Administrative Order No. 10, and disallowed certain items in Gilbow’s “proposed budget.” The circuit court awarded the increase effective as of the date of the petition, which resulted in a ten-month arrearage in the amount of $38,170.00.

Travis filed a motion for a new trial, asserting that the increase in child-support payments should have been effective as to the date of the October 29, 2007 order, rather than retroactive to the date Gilbow filed her petition. Alternatively, at the end of his brief in support of the motion, Travis requested that the circuit court order the retroactive award be placed in a trust or “college fund” to be maintained by himself, or under court control with funds to be dispersed upon court approval. Gil-bow responded to Travis’s motion by asserting that Travis had not stated any grounds for a new trial and that the award was properly made retroactive.

The circuit court entered a November 30, 2007 amended order, again finding that the increase in child support should be retroactive to the date Gilbow filed her petition. But in order to avoid a “windfall” to “Gilbow’s household,” the circuit court ordered Travis to place the $38,170 arrearage into an account “to address any needs of the children that may arise between now and the time the youngest child reaches the age of 18.” The amended order |3further stated that, although the account would be held in Travis’s name, he must “provide an accounting upon request to Ms. Gilbow, and proof that the account is still intact.”

In her appeal from the original and amended orders to the court of appeals, Gilbow argued that the circuit court erred by (1) ordering that the child support ar-rearage be placed into an interest-bearing account controlled by Travis that she could not access; and (2) deviating from the child-support chart provided by Administrative Order No. 10 by refusing to consider Gilbow’s proposed budgeting for $3,000 per month for “mom care,” which “would allow her to work part-time or not at all,” in order for her to be “a stay at home mother for the parties’ children.” The court of appeals affirmed the circuit court’s decision to create the account to hold the retroactive increase but reversed the portion of the trial court’s order that required Travis to set up the account in his name. Instead, the court of appeals instructed that the trial court on remand must modify its order to require that an interest-bearing account be created in Gilbow’s name and “require the chosen financial institution to file with the clerk of the circuit court an agreement not to permit any withdrawal from the account except on authority of the circuit court’s order.” Id. The court of appeals affirmed the circuit court’s deviation from the child-support chart, holding that there was no abuse of discretion on that point.

In her petition for review, Gilbow specifically asserts that the court of appeals’s decision “approving the establishment of a fund by the circuit court to remain under the control of the circuit court,” effectively created a guardianship contrary to “the principals of Smith. ” |4Further, she contends that “our system does not provide for advance court management” of child support funds, which are required to be “spent by the custodial parent to benefit the minor,” and, accordingly, the actions of the circuit court and court of appeals “have changed the nature of the arrearage of child support from child support to something else.”

Upon a grant of a petition for review, we consider the case as though it had originally been filed in this court. Tucker v. Office of Child Support Enforcement, 368 Ark. 481, 247 S.W.3d 485 (2007). The standard of review for an appeal from a child-support order is de novo, and this court will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Ward v. Doss, 361 Ark. 153, 158, 205 S.W.3d 767, 770 (2005). In reviewing a circuit court’s findings, the appellate court gives deference to the circuit court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. As a rule, when the amount of child support is at issue, this court will not reverse the chancellor absent an abuse of discretion. Id. However, a circuit court’s conclusion of law is given no deference on appeal. Id.

The general assembly amended Ark. Code Ann. § 9-14-107 by enactment of Act 337 of 2003 to provide that, “Any modification of a child support order that is based on a change in gross income of the noncustodial parent shall be effective as of the date of filing a motion for increase or decrease in child support unless otherwise ordered by the court.” Ark.Code Ann. § 9 — 14—107(d) (Supp.2009). Here, the circuit court ordered the increase to be retroactive to the date Gilbow filed her petition. However, citing Smith, supra, Gilbow | .^contends that “there is no basis in the statutes or guidelines” for the circuit court to order the retroactive increase in child support be deposited in an interest-bearing account. Gilbow further asserts that “establishing such a fund is contrary to the purposes of the child support statute and guidelines, which is to provide for the needs of the child,” and that the effect of the circuit. court’s order was to find “a particular amount of support was appropriate, and then deny it.”

In Smith, the noncustodial parent brought an appeal that challenged the amount of child support awarded by the trial court. He also argued that the trial court erred by refusing to order that a trust be created, and for a portion of the awarded child support to be placed in the trust and set aside for the future needs of the child. This court affirmed the trial court, holding that there was no “authority to designate portions of the child-support award for that purpose,” and stated that “child support is not to provide for the accumulation of capital by children, but is to provide for their reasonable needs.” Smith, 341 Ark. at 596, 19 S.W.3d at 594-95.

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Bluebook (online)
2010 Ark. 9, 372 S.W.3d 319, 2010 Ark. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbow-v-travis-ark-2010.