Cite as 2020 Ark. App. 512 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-07-19 13:12:19 Foxit PhantomPDF Version: DIVISION II 9.7.5 No. CV-20-62
STATE OF ARKANSAS OFFICE OF Opinion Delivered: November 4, 2020 CHILD SUPPORT ENFORCEMENT APPEAL FROM THE JEFFERSON APPELLANT COUNTY CIRCUIT COURT [NO. 35DR-13-987] V. HONORABLE WILLIAM BENTON, TIMOTHY R. WELLS JUDGE
APPELLEE REVERSED AND REMANDED
MEREDITH B. SWITZER, Judge
In this one-brief case, the Office of Child Support Enforcement (OCSE) appeals
from an order denying its’s motion to modify appellee Timothy Wells’s child-support
obligation and a subsequent order denying its motion for new a trial. OCSE contends the
trial court erred (1) as a matter of law in denying OCSE’s motion to set child support based
on the noncustodial parent’s Veteran’s Administration disability benefits; (2) in finding there
was no material change in circumstances warranting a modification of the noncustodial
parent’s child-support obligation; and (3) in finding the motion for new trial was untimely.
We reverse and remand.
In 2013, OCSE sought child support from Timothy Wells as the noncustodial parent
of T.W. Wells’s child-support obligation was set at $474 a month by order entered on
November 25, 2013. In a January 13, 2016 order, the trial court modified Wells’s child-
support obligation, noting that the VA had apportioned $500 from Wells’s disability benefits for the support of T.W. and Essence Brandon, his wife at the time, “and for the reason that
the apportionment award exceeds the sum of $474.00 which is the presumptive amount of
child support based upon the Arkansas Family Support Chart, there will be no separate
award of child support in this proceeding.”
OCSE filed a subsequent motion to modify on January 23, 2019. At the June 10,
2019 hearing on the motion, Irish Warfield, an OCSE court liaison, testified that she
prepared an affidavit of support for Wells and Brandon. She explained that she obtained
information from the VA that Wells’s June 1 VA benefits check was for $3196.79. She was
not able to find that he received any income beyond his VA benefits. She stated that based
on that amount, the chart showed his obligation to be $537 a month, and the retroactive
amount from February 1 to June 1 to be $2685.
Wells testified that when the last order was entered, he and Ms. Brandon were
separated and going through a divorce but still legally married. He stated that the VA’s
apportionment at that time for the benefit of both Brandon and T.W. was $500. Following
the divorce, Brandon’s spousal apportionment ended. Brandon requested and received an
increase in apportionment from $200 to $300 from the VA for child support. Wells
recognized that Warfield calculated the $537 child-support amount by using his monthly
$3196.79 VA benefit and determining that the state child-support chart showed he should
pay $537 a month in child support on the basis of his monthly income. He further
understood that the net amount he would have to pay was $237 because he would get a
$300 credit for the VA apportionment. He testified that he would not be able to pay that
amount. He explained that he now has a new wife and two additional kids—a stepchild
2 and a biological child—to support. He also explained that he has unusual expenses,
including helping his mother, getting to and from the VA, car notes, utilities, and $600 rent
to his mother.
Upon further examination by the court, Wells confirmed that the VA benefits were
his sole source of income. He explained that a hearing was held a year prior concerning the
apportionment of benefits for T.W. and that the amount was raised from $200 to $300.
Brandon testified that she does not currently have any income because she is not
working but is getting ready to start a business. She has not remarried since the divorce
from Wells. Her itemized expenses on the affidavit of financial means amounted to $990 a
month just for herself; that amount did not include the expenses for her two children and
their extracurricular activities, needs, and clothing. She stated that the $300 she receives for
T.W. does not cover all his expenses.
On October 8, 2019, the court entered its order denying the motion. The court
found that there had been no change in circumstances since the January 13, 2016 order, that
the support issue had been decided in an apportionment proceeding before the VA, and that
the circuit court had no jurisdiction to modify a VA apportionment ruling. OCSE filed a
motion for new trial on October 22, 2019, and it was denied as untimely by order entered
October 30, 2019. The appeal of both orders was followed by notice filed on November
5, 2019.
For its first point of appeal, OCSE contends the trial court erred as a matter of law
in denying OCSE’s motion to modify child support based on the court’s conclusion that it
lacked jurisdiction because the VA had already apportioned benefits. We agree.
3 We begin with Administrative Order No. 10, section (III), which addresses “gross
income” and specifically includes “veterans’ administration benefits.” It provides in
pertinent part:
2. Gross Income Inclusions: “Income” is “intentionally broad and designed to encompass the widest range of sources consistent with the State’s policy to interpret ‘income’ broadly for the benefit of the child.”
....
Gross income includes, but is not limited to, the following:
iv. Military specialty pay, allowance for quarters and rations, housing, veterans’ administration benefits, G.I. benefits (other than education allotment), or drill pay.
(Emphasis added.)
OCSE contended that in light of Wells’s monthly income of $3196.79, his monthly
child-support obligation pursuant to Administrative Order No. 10 would be $537. Taking
into account his VA apportionment of $300, Wells would still owe $237 a month to fulfill
his total obligation. The trial court concluded it was without jurisdiction to, in effect,
modify the VA’s apportionment ruling of $300 and require Wells to pay the additional $237
a month.
OCSE does not offer, nor does our research reveal, an Arkansas case directly
addressing this jurisdictional issue as it relates to VA benefits. We note, however, that in
Belue v. Belue, 38 Ark. App. 81, 828 S.W.2d 855 (1992), while our court did not address
preemption or jurisdictional issues, we found no abuse of discretion in the trial court’s
considering VA disability benefits in calculating child support—even though VA benefits
4 were not specifically referenced in the child-support chart at that time and were not
considered to be income under federal income tax laws.
Specifically addressing preemption and jurisdiction, we find persuasive Alwan v.
Alwan, 830 S.E.2d 45 (Va. Ct. App. 2019), a recent Virginia case cited by OCSE involving
VA disability benefits as they relate to a motion to modify child support. The Virginia
appellate court applied the rationale from Rose v. Rose, 481 U.S. 619 (1987), in which the
United States Supreme Court held that VA benefits can be considered income for child-
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Cite as 2020 Ark. App. 512 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-07-19 13:12:19 Foxit PhantomPDF Version: DIVISION II 9.7.5 No. CV-20-62
STATE OF ARKANSAS OFFICE OF Opinion Delivered: November 4, 2020 CHILD SUPPORT ENFORCEMENT APPEAL FROM THE JEFFERSON APPELLANT COUNTY CIRCUIT COURT [NO. 35DR-13-987] V. HONORABLE WILLIAM BENTON, TIMOTHY R. WELLS JUDGE
APPELLEE REVERSED AND REMANDED
MEREDITH B. SWITZER, Judge
In this one-brief case, the Office of Child Support Enforcement (OCSE) appeals
from an order denying its’s motion to modify appellee Timothy Wells’s child-support
obligation and a subsequent order denying its motion for new a trial. OCSE contends the
trial court erred (1) as a matter of law in denying OCSE’s motion to set child support based
on the noncustodial parent’s Veteran’s Administration disability benefits; (2) in finding there
was no material change in circumstances warranting a modification of the noncustodial
parent’s child-support obligation; and (3) in finding the motion for new trial was untimely.
We reverse and remand.
In 2013, OCSE sought child support from Timothy Wells as the noncustodial parent
of T.W. Wells’s child-support obligation was set at $474 a month by order entered on
November 25, 2013. In a January 13, 2016 order, the trial court modified Wells’s child-
support obligation, noting that the VA had apportioned $500 from Wells’s disability benefits for the support of T.W. and Essence Brandon, his wife at the time, “and for the reason that
the apportionment award exceeds the sum of $474.00 which is the presumptive amount of
child support based upon the Arkansas Family Support Chart, there will be no separate
award of child support in this proceeding.”
OCSE filed a subsequent motion to modify on January 23, 2019. At the June 10,
2019 hearing on the motion, Irish Warfield, an OCSE court liaison, testified that she
prepared an affidavit of support for Wells and Brandon. She explained that she obtained
information from the VA that Wells’s June 1 VA benefits check was for $3196.79. She was
not able to find that he received any income beyond his VA benefits. She stated that based
on that amount, the chart showed his obligation to be $537 a month, and the retroactive
amount from February 1 to June 1 to be $2685.
Wells testified that when the last order was entered, he and Ms. Brandon were
separated and going through a divorce but still legally married. He stated that the VA’s
apportionment at that time for the benefit of both Brandon and T.W. was $500. Following
the divorce, Brandon’s spousal apportionment ended. Brandon requested and received an
increase in apportionment from $200 to $300 from the VA for child support. Wells
recognized that Warfield calculated the $537 child-support amount by using his monthly
$3196.79 VA benefit and determining that the state child-support chart showed he should
pay $537 a month in child support on the basis of his monthly income. He further
understood that the net amount he would have to pay was $237 because he would get a
$300 credit for the VA apportionment. He testified that he would not be able to pay that
amount. He explained that he now has a new wife and two additional kids—a stepchild
2 and a biological child—to support. He also explained that he has unusual expenses,
including helping his mother, getting to and from the VA, car notes, utilities, and $600 rent
to his mother.
Upon further examination by the court, Wells confirmed that the VA benefits were
his sole source of income. He explained that a hearing was held a year prior concerning the
apportionment of benefits for T.W. and that the amount was raised from $200 to $300.
Brandon testified that she does not currently have any income because she is not
working but is getting ready to start a business. She has not remarried since the divorce
from Wells. Her itemized expenses on the affidavit of financial means amounted to $990 a
month just for herself; that amount did not include the expenses for her two children and
their extracurricular activities, needs, and clothing. She stated that the $300 she receives for
T.W. does not cover all his expenses.
On October 8, 2019, the court entered its order denying the motion. The court
found that there had been no change in circumstances since the January 13, 2016 order, that
the support issue had been decided in an apportionment proceeding before the VA, and that
the circuit court had no jurisdiction to modify a VA apportionment ruling. OCSE filed a
motion for new trial on October 22, 2019, and it was denied as untimely by order entered
October 30, 2019. The appeal of both orders was followed by notice filed on November
5, 2019.
For its first point of appeal, OCSE contends the trial court erred as a matter of law
in denying OCSE’s motion to modify child support based on the court’s conclusion that it
lacked jurisdiction because the VA had already apportioned benefits. We agree.
3 We begin with Administrative Order No. 10, section (III), which addresses “gross
income” and specifically includes “veterans’ administration benefits.” It provides in
pertinent part:
2. Gross Income Inclusions: “Income” is “intentionally broad and designed to encompass the widest range of sources consistent with the State’s policy to interpret ‘income’ broadly for the benefit of the child.”
....
Gross income includes, but is not limited to, the following:
iv. Military specialty pay, allowance for quarters and rations, housing, veterans’ administration benefits, G.I. benefits (other than education allotment), or drill pay.
(Emphasis added.)
OCSE contended that in light of Wells’s monthly income of $3196.79, his monthly
child-support obligation pursuant to Administrative Order No. 10 would be $537. Taking
into account his VA apportionment of $300, Wells would still owe $237 a month to fulfill
his total obligation. The trial court concluded it was without jurisdiction to, in effect,
modify the VA’s apportionment ruling of $300 and require Wells to pay the additional $237
a month.
OCSE does not offer, nor does our research reveal, an Arkansas case directly
addressing this jurisdictional issue as it relates to VA benefits. We note, however, that in
Belue v. Belue, 38 Ark. App. 81, 828 S.W.2d 855 (1992), while our court did not address
preemption or jurisdictional issues, we found no abuse of discretion in the trial court’s
considering VA disability benefits in calculating child support—even though VA benefits
4 were not specifically referenced in the child-support chart at that time and were not
considered to be income under federal income tax laws.
Specifically addressing preemption and jurisdiction, we find persuasive Alwan v.
Alwan, 830 S.E.2d 45 (Va. Ct. App. 2019), a recent Virginia case cited by OCSE involving
VA disability benefits as they relate to a motion to modify child support. The Virginia
appellate court applied the rationale from Rose v. Rose, 481 U.S. 619 (1987), in which the
United States Supreme Court held that VA benefits can be considered income for child-
support purposes, and federal law does not preempt state law in that regard.
Alwan and Rose are comparable to the instant case, and we find their holdings on this
issue to be sound. See also Goldman v. Goldman, 197 So. 3d 487 (Ala. Civ. App. 2015)
(although former husband’s disability benefits were precluded from consideration as income
for the purpose of calculating alimony, the same was not true for the calculation of child
support); Lewis v. Lewis, 2014 Ohio Ct. App. 958 (VA disability benefits were subject to
inclusion in the calculation of income for purposes of child support); Ruffin v. Ruffin, 753
S.W.2d 824 (Tex. Ct. App. 1988) (VA disability benefits may be subject to withholding for
child-support arrears; trial court’s jurisdiction of matter was not preempted by federal
statute). We conclude that the trial court erred in deciding it was without jurisdiction and
therefore reverse and remand this case for further proceedings consistent with this opinion.
For its second point of appeal, OCSE contends the trial court erred in finding that
there was no material change in circumstances warranting a modification of Wells’s child-
support obligation. It is unclear why the trial court made such a finding given that it
ultimately determined it was without jurisdiction to address the modification request.
5 Nonetheless, we agree with OCSE that the circuit court erred. A circuit court’s finding
regarding whether there is a material change in circumstances is subject to a clearly
erroneous standard of review. Hill v. Hill, 2013 Ark. 330, 429 S.W.3d 219.
In its October 8 order, the circuit court concluded that no change in circumstances
existed because Wells remained totally disabled due to a service-connected disability, and
his sole resource continued to be his monthly VA benefits. As noted by OCSE, however,
the trial court erred in failing to consider the following changes material: (1) Wells’s
monthly benefits had increased from $2666 at the time of the January 13, 2016 order to
$3,196.79 at the time of the June 10, 2019 hearing and the October 8, 2019 order; (2) the
January 13, 2016 order referenced the $500 monthly VA apportionment ($200 for T.W.
and $300 for his now ex-wife), which had subsequently decreased to $300 because of the
divorce (spousal apportionment eliminated and child apportionment increased to $300); and
(3) Wells had remarried and had another child.
The increase in Wells’s monthly benefits alone constitutes a material change in
circumstances. Arkansas Code Annotated section 9-14-107(a)(1) (Supp. 2019) provides that
a change in the payor’s gross income in an amount equal to or greater than 20 percent or
more than $100 a month shall constitute a material change of circumstances sufficient to
petition the court for modification of child support. Considering the evidence presented,
Wells’s change in monthly income from the entry of the January 13, 2016 order to the 2019
hearing and subsequent order far exceeded $100. We find that the trial court clearly erred
in finding that there was not a material change in circumstances and reverse and remand to
6 the trial court for further proceedings consistent herewith, including determination as to
whether any retroactive amount is due.
For its third point of appeal, OCSE contends the trial court erred in finding that the
motion for new trial was untimely. It is not necessary to address this issue on appeal because
we reverse and remand the case for further proceedings.
Reversed and remanded.
HARRISON and WHITEAKER, JJ., agree.
Paul D. Selby, Pine Bluff Regional OCSE, for appellant.
One brief only.