Moreland v. Hortman

39 S.W.3d 23, 72 Ark. App. 363, 2001 Ark. App. LEXIS 47
CourtCourt of Appeals of Arkansas
DecidedFebruary 7, 2001
DocketCA 00-527
StatusPublished
Cited by1 cases

This text of 39 S.W.3d 23 (Moreland v. Hortman) 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
Moreland v. Hortman, 39 S.W.3d 23, 72 Ark. App. 363, 2001 Ark. App. LEXIS 47 (Ark. Ct. App. 2001).

Opinion

JOSEPHINE Linker Hart, Judge.

In this case, appellant, Marilee Moreland, argues that it was improper for the chancellor to consolidate the child-support case involving her child by her former spouse, appellee, Robert J. Hortman, with a child-support case involving appellee’s child by another woman. Further, appellant argues that the chancellor erred in determining appellee’s child-support payment for her child by considering appellant as having two dependents. Finally, she argues that the chancellor erred in finding a change of circumstances supporting a reduction in child support. We reverse and remand.

Appellee is the father of five children born to three different women. Appellee was married to appellant and had two children, Robbie J. Hortman, now emancipated, and Christina A. Hortman. Appellant and appellee were divorced in 1985. Appellee then married Petheia Hortman and had one child, Chelseia Hortman. They divorced in 1992. Appellee then married Julie D. Hortman, who bore him two children.

In an order filed December 1, 1997, the chancellor ordered appellee to pay to appellant child support in the amount of $1,680 for her two children based on the chancellor’s finding that appel-lee’s net monthly income was $8,000, having been reduced from $8,903.97 by credits for current and future increases in child support for his child by Petheia Hortman. 1 The child-support amount was to be reduced to $1,200 a month when their older child graduated from high school in June 1998. The chancellor also found that appellee was in arrears in the amount of $5,320 for past due child support and $4,738.36 for unreimbursed medical expenses. He was ordered to pay the arrearages in twenty-four equal monthly installments of $419.09. On July 6, 1998, following a hearing on appellant’s petition for a contempt citation, appellee stipulated to an arrearage of $6,526.63, and he was ordered to pay an additional amount of $100 a month in arrearages. Appellee’s total payments, including arrearages, was $1,719.09.

On April 30, 1999, appellee initiated an action by filing a motion to consolidate his case for the support of appellant’s child with a child-support case for his child by Petheia Hortman. Appel-lee’s current wife was also named as a necessary third party. Appel-lee’s petition sought reduction of his child-support obligation for his child by appellant and his child by Petheia Hortman by counting the children in his current household and distributing in equal portions the amount of support for five children. Appellee also alleged that there had been a substantial change in circumstances in that he now has two additional children by his current wife, that he had incurred large medical bills concerning the birth of one of those children, and that he had suffered a decrease in income. Petheia Hortman, who, prior to this petition, received an increase in child support to $714 per month, argued that appellant’s child-support obligations should be based on two children, her child and the unemancipated child of appellant. Appellant objected to the consolidation, arguing that for the court to apply the chart based on all of appellee’s dependents would be improper under Arkansas case law.

In her order filed November 10, 1999, the chancellor granted appellee’s request that the cases be consolidated for the purpose of determining child support and considered both appellee’s child by appellant and appellee’s child by Petheia Hortman as before the court. She further concluded that there had been a change in appellant’s income due to the loss of a car allowance and other compensation and that the child-support award should be reduced “based upon [appellee’s] net monthly income of $6,854.” The chancellor refused to consider children in appellant’s household with his current wife and referred to Administrative Order No. 10 (2000) for the amount of child support to be paid for two dependents. The chancellor then took this amount and divided it equally between the two children.2

Appellant first contends that the trial court erred in consolidating the case involving the determination of the amount of child support for appellant’s child with the case involving the determination of the amount of child support for Petheia Hortman’s child. Under a separate point, appellant further contends that under the Administrative Order No. 10 (2000), appellee’s dependents should not be counted together for the purposes of determining the amount of child support. We agree that the chancellor erred in both matters.

“When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delays.” Ark. R. Civ. P. 42(a) (2000). A court’s decision to consolidate cases will not be reversed absent a showing of abuse of the court’s discretion. See Pennington v. Harvest Foods, Inc., 326 Ark. 704, 716, 934 S.W.2d 485, 491 (1996).

Here, appellee initiated a petition to consolidate the cases when there was no pending litigation in either case. In conjunction with this petition, he further sought to reduce the child support he paid to appellant. “[A] statute or per curiam order of the Arkansas Supreme Court that is in effect at the time of the hearing on the request for modification of child support is the applicable law pertaining to the modification.” Heflin v. Bell, 52 Ark. App. 201, 204, 916 S.W.2d 769, 770 (1996). Thus, we apply Administrative Order No. 10 (2000).

As is apparent from that order, the method of application of the administrative order is not to count the total number of the payor’s dependents and divide the amount of child support recommended by the administrative order by the number of dependents. Rather, in determining income as defined by Section II, the order provides that “[presently paid support for other dependents by Court order,” is deducted from the payor’s income. Furthermore, under the considerations for deviation from the administrative order under Section V(b)(7), the court may consider “[t]he support required and given by a payor for dependent children, even in the absence of a court order.” Moreover, we have previously noted in other cases that the amount set forth in the family support chart in the administrative order should be applied to the child that is before the court, and in applying the family support chart, it is improper for the chancellor to have determined the amount of child support to be paid based on the payor’s total number of dependents and then divide that amount by the total number of dependents. See Arkansas Dep’t of Human Servs. v. Forte, 46 Ark. App. 115, 877 S.W.2d 949 (1994); Waldon v. Waldon, 34 Ark. App. 118, 123-24, 806 S.W.2d 387, 390 (1991).

Even if we considered it proper to consolidate the two cases, we note that the two children were members of separate households.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mainerich v. Wilson
373 S.W.3d 923 (Court of Appeals of Arkansas, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
39 S.W.3d 23, 72 Ark. App. 363, 2001 Ark. App. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moreland-v-hortman-arkctapp-2001.