Johnson v. Cotton-Johnson

194 S.W.3d 806, 88 Ark. App. 67, 2004 Ark. App. LEXIS 668
CourtCourt of Appeals of Arkansas
DecidedOctober 6, 2004
DocketCA 03-1224
StatusPublished
Cited by19 cases

This text of 194 S.W.3d 806 (Johnson v. Cotton-Johnson) 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
Johnson v. Cotton-Johnson, 194 S.W.3d 806, 88 Ark. App. 67, 2004 Ark. App. LEXIS 668 (Ark. Ct. App. 2004).

Opinions

Olly Neal, Judge.

Arthur and Renita Cotton-Johnson, both practicing physicians, were divorced by a decree entered on July 9, 2003.1 The decree, in relevant part, established Arthur’s annual income for child-support purposes, divided certain accounts receivable as marital property, awarded alimony to Renita, and ordered Arthur , to reimburse Renita for one-half of the money that he spent on gifts to other women during the marriage. Arthur contends that the trial court erred in its resolution of each of the above matters. We affirm but with modifications that we will explain hereafter.

Calculation of Income for Child-Support Purposes

The trial court ordered Arthur to pay $9,413 per month as child support for the couple’s two minor sons, of whom Renita had custody. The order was based on a trial exhibit, prepared by Renita’s expert, CPA Cheryl Shuffield, that calculated Arthur’s annual income as $894,433. Arthur argues that the computation of his income was erroneous. We disagree.

Arthur has been a neurosurgeon with the River Valley Musculoskeletal Center (hereafter “the Clinic”) since August 2001. He joined the Clinic after leaving his previous employment at Sparks Regional Medical Center. Clinic administrator Edward Hickman testified that the Clinic pays Arthur monthly in an amount that varies, depending on Arthur’s collected billings.2 To explain the payment system in the simplest manner possible, from the collection of fees attributable to Arthur, amounts are deducted for a percentage of the Clinic’s overhead expenses and Arthur’s individual expenses. The net result is paid to Arthur as though he were an employee, with federal and state tax, FICA, and Medicare withheld. Arthur receives a W-2 from the Clinic each year reflecting his salary and showing the amount of federal tax, FICA, Medicare, and state tax withheld.

In 2001, Arthur’s gross yearly salary was $1,056,906, which included his income from Sparks Regional Medical Center before leaving there; income from the Clinic after having joined the Clinic; and “tail” income that he continued to receive from Sparks Regional Medical Center after leaving his employment there. In 2002, his gross salary, which was totally attributable to the Clinic, was $830,499. His 2003 earnings, which were only a few months old at the time of the May 2003 divorce hearing, were annualized by Cheryl Shuffield to project a 2003 salary of $729,346. Shuffield averaged Arthur’s annual earnings for 2001, 2002, and 2003, along with other outside income, to establish Arthur’s gross annual income for child-support purposes as $894,433. The trial court adopted the $894,433 figure and ordered Arthur to pay $9,413 per month as child support, based on the family support chart percentage for payors whose income exceeds chart amounts.

Arthur’s first argument is that, by averaging his income over a three-year period, the trial court erroneously treated him as a self-employed payor rather than an employee whose income should be calculated based on his current earnings. Child-support cases are reviewed de novo on the record. Delacey v. Delacey, 85 Ark. App. 419, 155 S.W.3d 701 (2004). 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. Id.

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). Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. 1064 (2002), provides that all orders granting child support shall contain the court’s determination of the payor’s income. See Order No. 10, Section I. Section II of Order No. 10 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.

Section III(c) of the Order contains special provisions for calculating the income of “nonsalaried payors,” such as disability and unemployment-compensation recipients, members of the military, commissioned workers, or the self-employed. The provision regarding self-employed workers states in pertinent part: “For self-employed payors, support shall be calculated based on the last two years’ federal and state income tax returns and the quarterly estimates for the current year.”

In calculating Arthur’s income, the trial court determined that Arthur was in essence self-employed. The court cited such indicia of self-employment as the fact that Arthur’s paycheck varied from month to month and that, rather than being paid immediately upon starting work at the Clinic, Arthur received no income when he first began working there in order to allow his collections to begin accumulating. The court also observed that Administrative Order No. 10 distinguishes not so much between employees and self-employed payors as between payors whose income is steady and those whose income varies.

We believe that the trial court’s reasoning is correct and falls in line with our recent decision in Delacey v. Delacey, supra, which involved a physician who was compensated under a formula similar to the one in this case. In Delacey, we noted that, although Order No. 10 does not address the situation of a non-self-employed payor whose earnings fluctuate from month to month, in the case of such a payor, his income should be calculated by averaging his earnings over a period of time to give an accurate picture of his income for child-support purposes. Therefore, even if Arthur is considered an employee rather than self-employed, his income should be calculated based on an average over a period of time, given the variable nature of his earnings. Thus, the trial court did not abuse its discretion by employing an averaging method in this case.

Arthur argues further that his 2001 earnings of $1,056 million should not have been considered in calculating his income because, in 2003, he projected earnings of approximately $250,000 less than his 2001 income. He further argues that his income from 2001 was inflated because, for a period of time, he was receiving income from both the Clinic and from Sparks Regional Medical Center.

Even though Arthur’s 2001 income was much greater than his projected 2003 income, that disparity is taken into account by the very nature of the averaging method. Arthur’s ultimate income of $894,433, as calculated by the court, is an average of the higher-earning years of 2001 and 2002 and the lower-earning year of 2003. As for whether the 2001 income was atypical, the evidence showed that, for a period of time in 2001, Arthur was indeed receiving income from both his old employer, Sparks, and his new employer, the Clinic.

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Johnson v. Cotton-Johnson
194 S.W.3d 806 (Court of Appeals of Arkansas, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
194 S.W.3d 806, 88 Ark. App. 67, 2004 Ark. App. LEXIS 668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-cotton-johnson-arkctapp-2004.