Irvin v. Irvin

883 S.W.2d 862, 47 Ark. App. 48, 1944 Ark. App. LEXIS 1
CourtCourt of Appeals of Arkansas
DecidedOctober 5, 1994
DocketCA 93-610
StatusPublished
Cited by11 cases

This text of 883 S.W.2d 862 (Irvin v. Irvin) 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
Irvin v. Irvin, 883 S.W.2d 862, 47 Ark. App. 48, 1944 Ark. App. LEXIS 1 (Ark. Ct. App. 1994).

Opinions

Judith Rogers, Judge.

This is an appeal from an order increasing appellant’s child support obligation and awarding appellee an attorney’s fee. For reversal, appellant contends that the chancellor erred in increasing child support; that the chancellor erred by not excusing his failure to attend the hearing; and, that the chancellor erred in concluding that appellee was entitled to an attorney’s fee of $1,500. Because we agree with appellant’s final issue, we affirm with modification.

The parties in this case were divorced in November of 1991. Pursuant to a child custody and property settlement agreement, appellee, Rhonda Irvin, was awarded custody of their twin sons who were born on March 25, 1989. According to the agreement, appellant, Frankie Gene Irvin, was obligated to pay the sum of $250 a month in support of the twins, and he was to be responsible for one-half of all medical expenses incurred on behalf of the children which were not covered by medical insurance.

On January 12, 1992, appellee petitioned the court for an increase in child support and the designation of a specific visitation schedule. Appellant responded to the petition, and on July 22, 1992, the court entered an order setting a hearing on September 23, 1992, at 9:30 a.m. Notice of the hearing was received by the parties’ attorneys. Neither appellant nor his attorney, however, appeared at the scheduled hearing. Nevertheless, the chancellor proceeded with the hearing, and after listening to the testimony offered by appellee, the chancellor announced an increase in appellant’s child support obligation to $505 a month. The chancellor also awarded appellee an attorney’s fee of $1,500.

Before this decision was entered of record, appellant filed an objection to the entry of the proposed order, contending that his failure to appear at the hearing should be excused. After a hearing, the chancellor denied appellant’s request for a new trial, and an order setting forth the chancellor’s decision on appellee’s petition was filed on January 28, 1993. This appeal followed.

As his first issue, appellant contends that the chancellor erred in increasing the child support payments in that there was no showing of a material change in circumstances since the entry of the original decree. He also argues that the chancellor erred in setting the amount of support based on an estimated income of $25,000.

At the hearing, appellee testified that appellant had constantly harassed and threatened her since the divorce. She related that the harassment had culminated in an incident wherein she shot the appellant in defense of herself and the children after appellant had forced his way into her apartment at 2:00 a.m. She said that the authorities had determined that the shooting was justified, but she stated that the children needed counselling as a result of the shooting, which she could not afford. She also testified that the cost of medical insurance coverage for the children had increased, that both children now wear glasses, and that one child had undergone eye surgery the previous month. Appellee added that the cost of clothing the children had increased as they had grown older. She further related that, because of the persisting problems with appellant, her husband from a previous marriage had filed for a change of custody of their child and that he was seeking the payment of child support from her.

Appellee also testified that appellant never held a job when they were married, but that he, nevertheless, had always had money to spend. She said that during the marriage appellant paid cash for the purchase of such things as a $7,500 Firebird, a $13,000 mobile home, a $2,000 air conditioner, a living room suite, dishwasher, microwave, stereo and other various household items. She also stated that appellant had paid a $10,000 fine in Tennessee in connection with a charge of conspiracy to manufacture marijuana, as well as a related $5,000 attorney’s fee. She further testified that appellant continued to have money to spend after the divorce. She said that appellant had purchased a Nissan Maxima, like the one she had bought at a price of $18,000. Appellee related that appellant had also boasted of purchasing his girlfriend a diamond ring for Christmas.

Based on this testimony regarding appellant’s spending habits, the chancellor estimated that appellant had an income of at least $25,000. In accordance with the applicable child support chart, he increased appellant’s child support payment to $505 a month.

Ordinarily, the amount of child support lies within the sound discretion of the chancellor. Belue v. Belue, 38 Ark. App. 81, 828 S.W.2d 855 (1992). The chancellor’s findings as to child support will not be disturbed on appeal unless it is shown that the chancellor abused his discretion. Id. A chancellor’s decision on whether to impute income must be based on the facts and circumstances of each case. Grable v. Grable, 307 Ark. 410, 821 S.W.2d 6 (1991).

A change in circumstances must be shown before a court can modify an order regarding child support; the assumption is that the chancellor correctly fixed the proper amount in the original decree. Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993). A chancellor’s determination as to whether there are sufficient changed circumstances to warrant an increase in child support is a finding of fact, and this finding will not be reversed unless it is clearly erroneous. Id. In making this decision, the chancellor must consider the needs of one party as compared to the ability of the other to pay. Hunt v. Hunt, 40 Ark. App. 166, 842 S.W.2d 470 (1992).

In this case, the chancellor had evidence before him that the needs of the children had increased since the entry of the divorce, as well as evidence demonstrating that appellant maintained the ability to provide for his children even though it would appear that he was not employed. In making our review, we observe that the original amount of support was set by agreement, and not by determination of the chancellor. We also observe, as the chancellor must have, that appellant was ostensibly without a job when the original provision was made for him to pay child support, and note that appellant has not sought abatement of his obligation upon any claim of hardship. The guidelines in the supreme court’s per curiam on child support suggest that, when calculating income, it is appropriate to consider the amount a payor is capable of earning or a net-worth approach based on property, lifestyle, etc. In Re: Guidelines for Child Support Enforcement, 305 Ark. Appdx. 613 (1991). Given the testimony demonstrating that the children’s needs have increased, we cannot say that the chancellor’s finding of changed circumstances is clearly against the preponderance of the evidence. And, under the particular circumstances of this case, we find no abuse of discretion in setting the amount of support at $505 by imputing an income of $25,000 based on the evidence of appellant’s spending habits.

Next, appellant contends that the chancellor erred by overruling his objection to the entry of the order.

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Irvin v. Irvin
883 S.W.2d 862 (Court of Appeals of Arkansas, 1994)

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Bluebook (online)
883 S.W.2d 862, 47 Ark. App. 48, 1944 Ark. App. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/irvin-v-irvin-arkctapp-1994.