John B. Robbins, Judge.
This is an appeal regarding a reduc-J tion in child support. Appellant Vicki McKinney and appel-lee Randall McKinney are the parents of a son who was ten years old when they divorced on October 3, 2003. Per their agreement, which was approved by the Washington County Circuit Court, Vicki retained custody, while Randall was granted visitation and was obligated to pay $1000 per month in child support, one-half of his son’s extracurricular expenses incurred through high school, one-half of any medical expenses for the child not covered by insurance, and one-half of his college expenses. Randall had been unemployed since September 2003, but he had been approved to receive $1000 in monthly unemployment benefits until he retained gainful employment, but for no longer than six months. The agreed order read in pertinent part that:
This [$1000 child support] amount is a deviation from the child support guidelines and is based upon the accustomed standard of living of the child and that husband has assets in addition to his monthly net income which has recently been approximately $4,800.00. It is agreed that this amount shall be paid directly to the wife by the fifth of every month.
In the divorce, the parties approximated an even division of the marital assets, resulting in Vicki retaining the home and furnishings. Randall moved into a one-bedroom apartment in Rogers, Arkansas. Each party retained their own retirement accounts. Vicki was employed as a professor at the University of Arkansas, earning about $90,000 annually.
On November 19, 2003, Randall moved to vacate or modify the agreed order pursuant to Ark. R. Civ. P. 60(a), stating that he agreed to this provision while acting pro se, that he had not found a job as he had expected to, that he was approved for but had not received the unemployment benefits in a timely manner, and that the October 3 order represented a miscarriage of justice. This petition was heard and denied in December 2003, though the trial court stated that if in the future there was a change in circumstances regarding income, the trial court could take evidence at that time.
Onjanuary 16, 2004, Vicki moved for contempt on the basis that Randall had not yet paid child support for the months of December and January. Randall responded and filed a counterclaim in May 2004, petitioning for a reduction in his child support.1 Randall stated that as of March 12, 2004, he was no longer receiving any unemployment benefits and that despite diligent efforts he had not found employment. Vicki resisted Randall’s petition, arguing that there was no material change in circumstances since the time of their divorce.
Both Vicki’s request to hold Randall in contempt and Randall’s petition to modify child support were heard on October 1, 2004. Vicki testified that since the filing of her petition for contempt, Randall was current on his child support, and he even overpaid her $500 in July 2004. Nonetheless, Vicki complained that the child support was not always paid on or before the fifth of the month. She said that in the previous year, only four months of support was either paid or postmarked by the due date. Vicki testified that she and her son lived in the house she and Randall bought in 2002 in Fayetteville, Arkansas. She estimated her expenses for herself and her son at $6300 per month, though she stated that her take-home income as Assistant Professor of Information Systems was $5300 per month. She also said that she had earned another $4200 in summer 2004 for research that was not listed on her Affidavit of Financial Means. Vicki explained that she had $1537 per month taken out of her paycheck for pension benefits and stock purchase plans. Vicki, a woman in her late forties, presently had about $56,000 in her retirement account. In order to keep their son in the lifestyle to which he had become accustomed, which included several summer camps, sports activities, and music lessons, she said she had taken funds from her savings account but not from her retirement accounts. Vicki agreed that Randall had paid about $800 in extracurricular expenses thus far.
Randall testified that their son was presently eleven years old. He agreed that he wanted to continue to support his son to the best of his ability, and that he was not asking to be excused from responsibility for half of other expenses listed in the agreed order (extracurricular activities, medical expenses over insurance, college). Fifty-seven-year-old Randall held a degree in mathematics, but he suffered from an arthritic back, which prevented him from being able to stand for long periods of time. Randall said that though he was unemployed in September 2003, he knew that unemployment benefits were forthcoming, he expected to use those benefits to pay child support for his son, and he felt sure he would quickly find gainful employment. He sent out approximately 300 letters seeking employment, and he sought professional recruiter services in Fayetteville, Little Rock, and Dallas. He was also working with the Employment Security Department of Arkansas, and he had searched through a temporary agency in Rogers. All of those efforts were unsuccessful to date.
He said that he retained one retirement account valued at approximately $133,500, but he had liquidated his other smaller retirement accounts, stocks, and some of his deceased mother’s assets to pay for child support and living expenses. He incurred a ten-percent penalty on each retirement account withdrawal. Including the unemployment checks, his bank account deposits for the last year totaled approximately $45,000. Bank statements and financial documents supported those figures. Randall requested that his child support obligation be reduced to $500 per month, given his current circumstances. Randall said that if he found a job, he should pay $1000 per month child support.
Randall testified that he wanted to support his son, but he did not want to spend all of his retirement to that end. Randall said that he presently drove a 1996 Toyota Canary with 160,000 miles on it. Randall’s one-bedroom apartment in Rogers cost $395 per month rent. He expressed a desire to eventually move into a two-bedroom apartment so that their son would not have to sleep on the couch when he visited. He said that his only recreation that did not involve his son was a trip to see relatives in Houston for Thanksgiving.
The trial court took the case under advisement and conducted a hearing on November 18, 2004, to announce her decision. The trial judge explained that she had observed the parties and their demeanor, and she had studied the exhibits carefully, resulting in her ability to make conclusions regarding credibility of the parties and the reasonableness and consistency of their positions. The trial judge found credible that Randall lived a modest lifestyle; that he had actively sought employment as he testified; that he agreed in the divorce to pay in excess of the family support chart based upon his former income despite his unemployment at the time; that Vicki received a net income in excess of her stated monthly expenses; that the child was not being neglected in any manner; that Randall was capable of earning an imputed monthly income of $3500; and that the family support chart on that amount would be $525 per month retroactive to the date of his request for a modification.
Free access — add to your briefcase to read the full text and ask questions with AI
John B. Robbins, Judge.
This is an appeal regarding a reduc-J tion in child support. Appellant Vicki McKinney and appel-lee Randall McKinney are the parents of a son who was ten years old when they divorced on October 3, 2003. Per their agreement, which was approved by the Washington County Circuit Court, Vicki retained custody, while Randall was granted visitation and was obligated to pay $1000 per month in child support, one-half of his son’s extracurricular expenses incurred through high school, one-half of any medical expenses for the child not covered by insurance, and one-half of his college expenses. Randall had been unemployed since September 2003, but he had been approved to receive $1000 in monthly unemployment benefits until he retained gainful employment, but for no longer than six months. The agreed order read in pertinent part that:
This [$1000 child support] amount is a deviation from the child support guidelines and is based upon the accustomed standard of living of the child and that husband has assets in addition to his monthly net income which has recently been approximately $4,800.00. It is agreed that this amount shall be paid directly to the wife by the fifth of every month.
In the divorce, the parties approximated an even division of the marital assets, resulting in Vicki retaining the home and furnishings. Randall moved into a one-bedroom apartment in Rogers, Arkansas. Each party retained their own retirement accounts. Vicki was employed as a professor at the University of Arkansas, earning about $90,000 annually.
On November 19, 2003, Randall moved to vacate or modify the agreed order pursuant to Ark. R. Civ. P. 60(a), stating that he agreed to this provision while acting pro se, that he had not found a job as he had expected to, that he was approved for but had not received the unemployment benefits in a timely manner, and that the October 3 order represented a miscarriage of justice. This petition was heard and denied in December 2003, though the trial court stated that if in the future there was a change in circumstances regarding income, the trial court could take evidence at that time.
Onjanuary 16, 2004, Vicki moved for contempt on the basis that Randall had not yet paid child support for the months of December and January. Randall responded and filed a counterclaim in May 2004, petitioning for a reduction in his child support.1 Randall stated that as of March 12, 2004, he was no longer receiving any unemployment benefits and that despite diligent efforts he had not found employment. Vicki resisted Randall’s petition, arguing that there was no material change in circumstances since the time of their divorce.
Both Vicki’s request to hold Randall in contempt and Randall’s petition to modify child support were heard on October 1, 2004. Vicki testified that since the filing of her petition for contempt, Randall was current on his child support, and he even overpaid her $500 in July 2004. Nonetheless, Vicki complained that the child support was not always paid on or before the fifth of the month. She said that in the previous year, only four months of support was either paid or postmarked by the due date. Vicki testified that she and her son lived in the house she and Randall bought in 2002 in Fayetteville, Arkansas. She estimated her expenses for herself and her son at $6300 per month, though she stated that her take-home income as Assistant Professor of Information Systems was $5300 per month. She also said that she had earned another $4200 in summer 2004 for research that was not listed on her Affidavit of Financial Means. Vicki explained that she had $1537 per month taken out of her paycheck for pension benefits and stock purchase plans. Vicki, a woman in her late forties, presently had about $56,000 in her retirement account. In order to keep their son in the lifestyle to which he had become accustomed, which included several summer camps, sports activities, and music lessons, she said she had taken funds from her savings account but not from her retirement accounts. Vicki agreed that Randall had paid about $800 in extracurricular expenses thus far.
Randall testified that their son was presently eleven years old. He agreed that he wanted to continue to support his son to the best of his ability, and that he was not asking to be excused from responsibility for half of other expenses listed in the agreed order (extracurricular activities, medical expenses over insurance, college). Fifty-seven-year-old Randall held a degree in mathematics, but he suffered from an arthritic back, which prevented him from being able to stand for long periods of time. Randall said that though he was unemployed in September 2003, he knew that unemployment benefits were forthcoming, he expected to use those benefits to pay child support for his son, and he felt sure he would quickly find gainful employment. He sent out approximately 300 letters seeking employment, and he sought professional recruiter services in Fayetteville, Little Rock, and Dallas. He was also working with the Employment Security Department of Arkansas, and he had searched through a temporary agency in Rogers. All of those efforts were unsuccessful to date.
He said that he retained one retirement account valued at approximately $133,500, but he had liquidated his other smaller retirement accounts, stocks, and some of his deceased mother’s assets to pay for child support and living expenses. He incurred a ten-percent penalty on each retirement account withdrawal. Including the unemployment checks, his bank account deposits for the last year totaled approximately $45,000. Bank statements and financial documents supported those figures. Randall requested that his child support obligation be reduced to $500 per month, given his current circumstances. Randall said that if he found a job, he should pay $1000 per month child support.
Randall testified that he wanted to support his son, but he did not want to spend all of his retirement to that end. Randall said that he presently drove a 1996 Toyota Canary with 160,000 miles on it. Randall’s one-bedroom apartment in Rogers cost $395 per month rent. He expressed a desire to eventually move into a two-bedroom apartment so that their son would not have to sleep on the couch when he visited. He said that his only recreation that did not involve his son was a trip to see relatives in Houston for Thanksgiving.
The trial court took the case under advisement and conducted a hearing on November 18, 2004, to announce her decision. The trial judge explained that she had observed the parties and their demeanor, and she had studied the exhibits carefully, resulting in her ability to make conclusions regarding credibility of the parties and the reasonableness and consistency of their positions. The trial judge found credible that Randall lived a modest lifestyle; that he had actively sought employment as he testified; that he agreed in the divorce to pay in excess of the family support chart based upon his former income despite his unemployment at the time; that Vicki received a net income in excess of her stated monthly expenses; that the child was not being neglected in any manner; that Randall was capable of earning an imputed monthly income of $3500; and that the family support chart on that amount would be $525 per month retroactive to the date of his request for a modification.
The trial court explained that pursuant to statutory law, case law, and Administrative Order Number 10 issued by our supreme court, the parties could not make a permanently binding contract on the issue of child support. Instead, that was a matter over which the trial court retained jurisdiction as a matter of public policy. An order was entered on December 14, 2004, commemorating these findings. Appellant filed a timely notice of appeal.2
Appellant Vicki contends on appeal that the trial court erred in reducing appellee Randall’s child support obligation from $1000 to $525 per month because (1) it was clearly erroneous to find a material change in circumstances sufficient to modify child support, and (2) it was clearly erroneous to conclude that the chart amount was not rebutted by the child’s standard of living and appellee’s possession of assets other than regular income. We disagree with both of her assertions and affirm the trial court’s decision.
We review child-support awards de novo on the record. Davie v. Office of Child Support Enforcement, 349 Ark. 187, 76 S.W.3d 873 (2002) (citing Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002)). In de novo review cases, we will not reverse a finding of fact by the trial judge unless it is clearly erroneous. Id. (citing Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000)). 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. Id. (citing Nielsen, supra). Further, we give due deference to the trial judge’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Id.
The amount of child support lies within the sound discretion of the trial judge', and the trial judge’s finding will not be reversed absent an abuse of discretion. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002) (citing McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999)). The trial judge is required to refer to the child-support chart, and the amount specified in the chart is presumed to.be reasonable. Id. (citing Smith v. Smith, supra).
Appellant first contends that appellee failed to show a material change in circumstances since the last order that would warrant a reduction in child support. Appellant acknowledges that the trial court retains jurisdiction over child support matters, but she asserts that at the time of the divorce, appellee was unemployed and receiving no income — just as when he petitioned for a reduction. It must be remembered that a trial court always retains jurisdiction over child support as a matter of public policy, and no matter what an independent contract states, either party has the right to request modification of a child support award. Alfano v. Alfano, 11 Ark. App. 62, 72 S.W.3d 104 (2002). At the time of the divorce, appellee had been approved for unemployment benefit payments that provided $1000 per month in income, despite their being tardy in their delivery to appellee. Arkansas Code Annotated section 9-14-107 (Repl. 2003) provides that any change greater than twenty-percent or $100 in the payor’s monthly gross income constitutes a material change in circumstances sufficient for a petition for modification of child support. Appellee’s unemployment benefits expired in March 2004, so his petition in May 2004 in which his income was shown to have decreased from $1000 per month to $0 per month was a material change in circumstances.
The present set of facts is markedly distinguishable from Schwarz v. Moody, 55 Ark. App. 6, 928 S.W.2d 800 (1996), which appellant cites. In Schwarz v. Moody, child support was not eliminated upon a request for modification because the mother was unemployed at both the initial setting of minimal child support required by law of an unemployed person and at her later request for an elimination of that duty. In this instance, the payor’s original obligation was set in excess of the child support chart based upon his expected acquisition of employment commensurate with his former income, with deviation upward for the child’s standard of living. Although he had unemployment benefits for a while, the income situation changed materially in the ensuing months. We affirm this point on appeal.
Appellant next contends that the trial court erred in modifying the child support obligation because the family support chart amount on the imputed income was rebutted by proof of the child’s standard of living and appellee’s possession of other assets with which he could satisfy his support obligation. Appellant argues that the evidence showed that appellee was able to deposit nearly $40,000 in monies from his other assets in the course of the year without making any appreciable reduction in the overall value of his retirement. Despite the trial court having imputed $3500 monthly income to appellee for purposes of child support, which the court translated into a $525 per month child support duty, appellant maintains that the child’s lifestyle requires $1000 per month support, which appellee has the ability to fund. In short, appellant contends that the trial court clearly erred by not deviating upward from the child support chart and leaving support at $1000 per month. We affirm the trial court.
The family support chart and statutory law set forth the presumption that the amount applicable under the chart is the correct amount. In particular, Arkansas Code Annotated section 9-12-312(a)(2) (Repl. 2002) provides:
In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.
We are hard pressed to hold that the trial court erred where it set an imputed income to appellee and then applied Administrative Order Number 10 to that amount.3 It was incumbent upon appellant to rebut that presumption, which she did not do. The trial court expressed her understanding of the applicable law, in particular Administrative Order Number 10. The trial judge specifically noted that the child’s accustomed fife style was being accommodated and that appellee was in fact earning no income whatsoever. Obviously, the chart amount was not deemed to be unjust or inappropriate based upon the criteria applied to these facts. Because the trial court followed applicable law in this instance in setting an equitable amount of child support, we affirm its order.
Bird, Crabtree, and Roaf, JJ., agree. Griffen and Baker, JJ., dissent.