Cite as 2025 Ark. App. 8 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-23-674
TONYA M. LEWIS Opinion Delivered January 15, 2025 APPELLANT APPEAL FROM THE SALINE COUNTY CIRCUIT COURT V. [NO. 63DR-18-952]
PRESTON F. LEWIS HONORABLE ROBERT HERZFELD, APPELLEE JUDGE
AFFIRMED
BART F. VIRDEN, Judge
Appellant Tonya M. Lewis appeals from the Saline County Circuit Court’s order
granting appellee Preston Lewis’s motion to modify child support after finding that a
material change in circumstances had occurred in that Preston’s monthly income had
decreased. After imputing income to Tonya that was equal to Preston’s decreased earnings,
the trial court ordered that neither party owed child support. Tonya argues on appeal that
the trial court erred by imputing income to her above minimum wage, by expecting her to
work forty hours a week while Preston works part time, by not considering Preston’s
additional income in the form of assets, and by awarding Preston retroactive reimbursement
of child support. We find no error and affirm the trial court’s decision. I. Background1
Preston and Tonya married in 2007, and their daughter was born in 2012. The parties
divorced in May 2019 and were granted joint custody of their minor child (MC) with Preston
paying $168 biweekly, “which is the difference in the chart amount of child support for one
(1) child based on Father’s income of $1936 and Mother’s imputed income of $500.” The
trial court specifically noted in the decree that child support “shall be subject to review when
Mother becomes employed.” In April 2022, Preston filed a motion to modify child support.
In October, he amended the motion to allege that both parties’ incomes had changed.
Specifically, he asserted that his own income had been reduced to the point that what he is
paying Tonya is an overpayment. In April 2023, Preston hired what would be his third
attorney, and a hearing was held in July.
At the hearing, Tonya testified that she lives with her mother and stepfather and does
not pay any rent or any portion of the utilities or other bills. She said that her mother usually
pays her car insurance but that she had paid it most recently and that it is $91.66 a month
for six months. She said that she does not have any expenses aside from personal items for
her and eleven-year-old MC. Tonya testified that she is a substitute teacher at MC’s school
1 Tonya’s counsel provided us with a “Statement of the Case” containing a page and a half of the procedural highlights—with no facts. Arkansas Supreme Court Rule 4-2(a)(6), titled Statement of the Case and the Facts, provides that the appellant’s brief shall contain a concise statement of the case and the facts, which identifies and discusses all material factual and procedural information contained in the record. Information is material if it is essential to understand the case and to decide the issues on appeal. Fortunately, Preston’s counsel chose to provide us with twelve and a half pages of the facts gleaned from testimony at the hearing, which is permitted by Rule 4-2(b).
2 or in MC’s school district. She said that substitute teaching pays $85 a day. Tonya testified
that in 2019, she earned approximately $3,546 as a substitute teacher. In 2022, she was still
a substitute teacher and earned $2,175, and at the time of the 2023 hearing, she had earned
$873 by working approximately fifteen days as a substitute teacher. Tonya testified that she
is in a long-distance relationship with Eric Schillenberg and that these circumstances make
it very difficult for her to work full time. She testified that she is with Eric in New Jersey
when she does not have MC. Tonya testified that she has the ability to work forty hours a
week but that from 2020 to 2023, she has chosen not to work full time.
Tonya was asked about her qualifications and experience. She said that she has a
bachelor’s degree in arts and journalism but that she had never used her degree in any job.
She said that the last full-time job she had was fourteen years ago when she worked through
a nontraditional program as a teacher in the North Little Rock School District teaching
ninth-grade Algebra I. Tonya said, however, that she does not have a teaching degree and is
not qualified to teach full time. She said that, although she would have earned approximately
$32,000 at that teaching job, she held the position for only about three months. Tonya said
that she has held jobs for longer terms when she worked in retail sales but that she did not
make more than minimum wage.
Tonya also testified that Eric provides her with a credit card to use as she wishes and
that she mainly purchases airplane tickets with it. She stated that a round-trip ticket to New
Jersey costs around $400 and that she flies to see Eric twice a month. She said that she likely
spends on a monthly basis $100 for groceries in Arkansas; $300 for groceries in New Jersey;
3 $50 on gas; and about $60 for eating at restaurants with MC. Tonya stated that she paid her
car insurance with Eric’s credit card and that she buys things from Target for her home in
Arkansas. She testified that last year, she traveled with Eric to London twice and to Florida
to visit Eric’s parents.
Tonya said that she and Eric had decided that she would not work full time. She said
that, similarly, during MC’s lifetime, she had not held down a full-time job and had been a
stay-at-home mother. Tonya testified that Preston’s $168 biweekly child support provides
food, clothing, and school supplies for MC every year. She said that she pays for MC to go
to Family Farm Camp every year and that she had paid for art camps in previous years. She
said that she also pays for MC to go to the movies and for her face wash and shampoo. Tonya
also testified that Eric is very happy to help supplement and provide things for MC.
Preston testified that in May 2019, he earned around $65,000 a year as a speech
therapist at Insight Rehabilitation but said that his caseload and billable hours were affected
by Medicare changes in October 2019. He said that when the global pandemic struck after
those Medicare changes, caseloads were “extremely low” at times, and he was required to
service multiple buildings when he typically serviced only one in Benton. Preston stated that
his service area then “fanned out” into Hot Springs Village, Hot Springs, Little Rock, and
North Little Rock. He said that he considered starting a private practice and began that
process in 2021 but that his father, who lived in Clarksville, started experiencing accelerated
Alzheimer’s symptoms. He decided, instead, to work on an as-needed basis for flexibility in
4 dealing with his father. Preston stated that he made nearly the same amount of money and
that this arrangement worked for a few months.
Preston testified that he then received an offer from a colleague to contract with the
Arkansas State Hospital to provide services to adolescents and adults. Preston said that on
average there are only about seventeen billable hours a week but that he does work for which
he is not compensated. He says that he works Monday through Friday from 8:00 a.m. to 3:00
or 3:30 p.m. and does not travel much, which allows him to be more available for his
daughter. Preston stated that his gross monthly pay is $3,240 and that his 2023 year-to-date
income is $19,635. On cross-examination, Preston said that he earned $68,304 in 2019;
$64,881 in 2020; $34,918 in 2021; and $22,000 in 2022. He stated that he is making
significantly less money than he was making in 2019 and 2020 even though his hourly rates
have increased because his billable time has decreased by about nine hours a week. Preston
insisted that he did not change jobs in order to reduce his child-support obligation. He stated
that he now has a better quality of life, more flexibility, less stress, and more time to spend
with MC.
Preston said, however, that he is having to withdraw money from his savings account.
Preston admitted making a $75,000 deposit in 2020 but said that his uncle had died and
that he had helped execute the will, and the rest was probably a gift from his parents. He
admitted that, although he had earned about $34,000 in 2021, he deposited over $85,000
into his bank account. He explained that his mother had asked him to “move some money
around” because his father, while suffering from Alzheimer’s, was “making a lot of claims”
5 about what he wanted to do with that money. He said that in 2022 when he made only
$22,000, he had deposited $80,000 into his bank account but explained that there was a sale
on his uncle’s home.
Preston said that his mother had died in July 2022 and that his father had died that
November. He said that he and his brother sold their parents’ home in 2023 and that each
made a profit of about $200,000. He said that he put some of his share into an IRA and that
there is a joint account containing $92,000 from which they are continuing to pay estate
expenses. Preston said that he and his brother have another house in Clarksville that is now
sitting empty. He said that he had not looked into potential rental value and that he and his
brother were considering a sale. Preston said that his niece had been renting the house for a
while and paying the rent to his brother. He said that she had moved out but that her move
into a different property had “fallen through” and that she probably would be moving back
into the house for a while.
Preston said that his previous attorneys had failed to meet deadlines, had failed to let
him know about the service of interrogatories, and had failed to copy him on correspondence
with Tonya’s counsel. He agreed that Tonya had served her interrogatories in June 2022 but
stated that he was not informed of them until November and promptly provided information
and documents. Preston testified that he did not believe the delay in getting to court was his
fault.
The trial court found that Preston’s current annual income is $46,800—or $3,900 a
month—and that Preston’s job and income had changed due to the COVID-19 pandemic,
6 his parents’ failing health and subsequent deaths, and his desire to have a better quality of
life and spend more time with MC during his custodial weeks. The trial court found that
“these are justifiable reasons for his change in income and it was not made to avoid the
payment of child support.” The trial court then found that Tonya had the ability to earn
$46,800 annually and imputed income of $3,900 a month to her because
[she] has a Bachelor’s Degree, has the ability to work, has worked in the past, presents well and has the ability to work full time as opposed to the limited part time employment she had since the divorce. [Tonya] was expected to gain employment after the divorce and has made the decision to pursue a relationship with an individual that lives out of state. Her decision to pursue a relationship and travel extensively for that relationship has impacted her ability to find gainful employment.
The trial court thus ordered that Preston’s child-support obligation would cease
effective July 11, 2023, that neither party would pay child support, and that Tonya will repay
$1,456 to Preston for four months of child support while the matter was pending.
II. Standard of Review
Our standard of review for an appeal from a child-support order is de novo on the
record, and we will not reverse a finding of fact by the trial court unless it is clearly erroneous.
Slayton v. Dill, 2024 Ark. App. 372, 691 S.W.3d 279. In reviewing a trial court’s findings, we
give due deference to that court’s superior position to determine the credibility of the
witnesses and the weight to be accorded to their testimony. Id. As a rule, when the amount
of child support is at issue, we will not reverse the trial court’s decision absent an abuse of
discretion; however, a trial court’s conclusion of law is given no deference on appeal. Id.
III. Discussion
7 A. Imputing Income Above Minimum Wage
Tonya first argues that the trial court abused its discretion in imputing income to her
equivalent to an hourly wage of $22.50 when she has never made more than minimum wage
in her past jobs. Although she would have earned more than minimum wage in the teaching
job she had fourteen years ago, she held that position for only three months. She notes that,
although the trial court said in its ruling that teachers “sooner or later” will make $50,000,
she is neither licensed nor qualified to teach. The previous job for which she could have
earned $32,000 was through a nontraditional teaching program that had her in a high-risk
school district before MC’s birth. She did not complete the program. Further, although she
has a college degree, she has never used her arts and journalism degree in any job she has
ever had. Tonya argues that, while she understands that minimum wage may be imputed to
her, the trial court should not have imputed more than minimum wage.
Arkansas Supreme Court Administrative Order No. 10(III)(8) provides that
[i]f imputation of income is ordered, the court must take into consideration the specific circumstances of both parents, to the extent known, including such factors as the parents’ assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the parent, prevailing earnings level in the local community, and other relevant background factors in the case.
We review the trial court’s imputation of income under the abuse-of-discretion standard.
Vice v. Vice, 2016 Ark. App. 504, 505 S.W.3d 719. An abuse of discretion occurs when
discretion is applied thoughtlessly, without due consideration, or improvidently. Id.
8 The testimony shows that Tonya has a college degree and a history of employment
with teaching experience. The trial court found that Tonya “presents well,” and Tonya
testified that she is capable of working full time. Moreover, one of the considerations for the
trial court when imputing income is the parent’s “record of seeking work.” The trial court
recalled that Tonya had testified at the time of the divorce that she expected to become
employed, yet at the child-support-modification hearing, Tonya said that she had no
intention of seeking a full-time job. Other considerations are the local job market and level
of earnings. The trial court referred to this, but to the extent the trial court may have
speculated about the amount of money teachers could earn someday and what college
graduates earn, we disregard such conjecture. Nevertheless, we hold that the trial court
reached the right result. Higdon v. Roberts, 2020 Ark. App. 59, 595 S.W.3d 19.
In our de novo review, we may consider that a minimum-wage job would yield a gross
annual income of $22,880; that Tonya had earned an actual gross income of $873 as of July
2023 at her part-time substitute-teaching job but that she had earned four times that amount
as recently as 2019 doing that same part-time job; and that virtually all of Tonya’s living
expenses are paid by her mother and her boyfriend. See Hayes v. Otto, 2009 Ark. App. 654,
344 S.W.3d 689 (noting that the payment of personal expenses by third parties can be
considered income for purposes of setting child support). Here, Tonya’s mother pays for her
housing and utilities in Arkansas, and she typically pays all of the other bills, including
Tonya’s car insurance, which amounts to about $1,100 annually. Eric pays for Tonya’s
housing in New Jersey and supplies her with a credit card that she may use “as she wishes.”
9 Tonya testified to specific charges that total over $15,000 a year and referred to other
expenditures for which she did not provide a dollar figure. Indeed, Tonya pays only for
personal items for herself and MC. The trial court concluded that Tonya’s imputed potential
earnings were the equivalent of Preston’s reduced earnings, such that neither must pay child
support. Considering the specific circumstances of this case, we cannot say that the trial court
abused its discretion in imputing more than minimum-wage income to Tonya.
B. Forty-Hour Work Week
Tonya argues that the trial court abused its discretion in expecting her to work forty
hours a week, while Preston is held to only a seventeen-hour work week, or part-time work.
She points out that Preston was making $65,000 annually in 2019 at the time of the divorce
and that he now has a contract position that is not considered full time. She contends that
Preston works only seventeen billable hours each week when he used to work twenty-six
billable hours at $39 an hour. He effectively earns $52.94 an hour now, so if he were held
to a forty-hour work week as Tonya is, he could earn $110,117.64. She contends that, even
if he were held to only his previous twenty-six hours, he would be earning $71,574. Tonya
further argues that Preston’s reasons for working less no longer exist because the COVID-19
pandemic is over, and both of his parents passed away in 2022.
The trial court determined that Preston credibly testified that his reduced income was
not the result of his efforts to reduce his child-support obligation. Although we agree with
Tonya that two of Preston’s reasons are not applicable now, there were other reasons that
Preston sought different employment that resulted in his reduced earnings. We will not
10 second-guess the trial court’s credibility call with respect to Preston’s intentions. See Langston
v. Brown, 2016 Ark. App. 535, 506 S.W.3d 261 (affirming trial court’s reduction of child
support owed by father after finding that he credibly testified that he had left his high-paying
job at Walmart because he was being harassed and had been given the option to resign or be
demoted to a lower position that paid less than half of what he had been earning).
There is a rebuttable presumption that the payor and the payee can work full time or
earn full-time income, and the court may base its child-support calculation on a
determination of potential income that would otherwise ordinarily be available to the
parties. Ark. Sup. Ct. Admin. Order No. 10(III)(8). Contrary to Tonya’s assertion, Preston
is not working seventeen hours a week; rather, he has seventeen billable hours. Preston
testified that he works five days a week from 8:00 a.m. to 3:00 or 3:30 p.m. but that his job
is a contract position and that he does work for which he is not compensated. Tonya
conceded that she is capable of working forty hours a week. She testified that she has chosen
not to work full time because she prefers to pursue an out-of-state relationship, which makes
having a full-time job difficult. The trial court did not abuse its discretion in finding that
Tonya failed to rebut the presumption that she is capable of full-time work.
C. Preston’s Additional Income
Tonya argues that the trial court failed to consider that Preston owns assets with
income potential. She then cites Administrative Order No. 10(III)(8), which provides,
In addition to determining potential earnings, the court may impute income to any non-income producing assets of either parent, if significant, other than a primary residence or personal property. Examples of such assets are vacation homes
11 (if not maintained as rental property) and idle land. The current rate determined by the court is the rate at which income may be imputed to such nonperforming assets.
Tonya argues that the sale of Preston’s parents’ home netted him a profit of $200,000
and that he had an inherited IRA worth $335,680.2 She points to Preston’s deposits that far
exceeded his income and argues that even his monthly expenses exceeded his monthly
income. Tonya, however, does not explain how Administrative Order No. 10(III)(8),
involving “nonperforming assets,” applies and does not provide any information about the
“current rate” to be imputed to a nonperforming asset.
Tonya further argues that the home in Clarksville that was rented to Preston’s niece
now sits vacant but has income potential. Tonya argues that if Preston and his brother used
the home as rental property, Preston would have an additional $8,400 annual income. The
language from Administrative Order No. 10 set forth above specifically excludes rental
property such that the home would not be a nonperforming or non-income-producing asset.
To the extent Tonya suggests that the home could be considered “idle land” given that the
home is vacant, the only evidence of the home’s monthly rental value came from Tonya’s
counsel’s question on cross-examination of Preston. She asked whether he was aware that
rental properties in Clarksville had a potential rental value of $1,400, to which he answered
that he was not. We find no error.
D. Retroactive Reimbursement
2 In making this argument, we note that Tonya did not request an increase in Preston’s child-support obligation. At the hearing, she argued that his child-support payments should remain the same.
12 Tonya’s final argument is that the trial court erred in ordering her to reimburse
Preston for four months of child support. She points out that Preston filed his motion for
modification on April 28, 2022, and that she submitted discovery in June. She says that
Preston claimed he did not get the discovery from his attorney until November and answered
it in December. Tonya argues that Preston had ample time to change attorneys but that he
did nothing until his third attorney entered his appearance and moved the matter along.
Tonya argues that she uses all of the child support Preston pays for MC’s benefit and that
the only financial support Preston provides outside of child support is payment of one-half
of the cost for tennis, haircuts, and some clothes for MC to wear while at his house. Tonya
argues that MC’s needs remained the same while the case was pending. She states that,
although she was ordered to pay only four months of retroactive reimbursement, she should
not have to pay anything given that Preston contributes “little to nothing” toward MC’s
needs beyond child support.
The trial court noted that it was ordering reimbursement of only four months of child
support instead of the twelve months Preston requested. The trial court found that the delay
was “not necessarily” caused by Preston but that the case should have been brought to trial
in about four months. This was basically a favorable ruling for Tonya and not an abuse of
discretion. Although Tonya claims that she should not have been ordered to repay Preston
because he pays “little to nothing” other than child support, Preston pays for all of MC’s
needs every other week when he has custody of her.
Affirmed.
13 KLAPPENBACH, C.J., and BARRETT, J., agree.
LaCerra, Dickson, Hoover & Rogers, PLLC, by: Traci LaCerra, for appellant.
The Ballard Firm, P.A., by: Andrew D. Ballard, for appellee.