Patrick J. Powers v. Kathy A. Powers

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

PATRICK J. POWERS

APPELLANT

V.

KATHY A. POWERS

APPELLEE

CA04-941

APRIL 6, 2005

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. CR2003-1955-6]

HONORABLE MARK LINDSAY, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, Patrick J. Powers, alleges the trial court erred in denying his motion to modify amount of child support and alimony awarded in the divorce decree. This is the second appeal arising from the the trial court's award of support. On February 12, 2004, the trial court heard testimony in connection with the divorce proceeding, and on February 13, 2004, the trial court entered its initial order with respect to child support and alimony. Appellant appealed that order and our opinion affirming that order was entered on Feb. 2, 2005 in Powers v. Powers, No. CA 04-641.

Appellant filed a motion to modify child support and alimony on February 17, 2004, asserting a material change of circumstance in that appellant was unable to work and therefore unable to pay child support in accordance with the court's orders. The petition stated that at approximately 6:25 a.m. on Saturday, February 14, 2004, appellant's attorney called appellant because of his concern over appellant's emotional condition. Based upon his observations during the telephone conversation, appellant's attorney summoned emergency services, and appellant was subsequently admitted to the hospital for attempted suicide.

In refusing to modify the order of support, the trial court stated that it had previously made a finding of fact that appellant had forcibly had sex with his minor daughter and that based upon case law, appellant had unclean hands: therefore, the court was not obliged to reduce the child support or alimony. On appeal, appellant asserts that the trial court's decision was an abuse of discretion because it was clear from the medical and other testimony that appellant was unable to continue to work in any capacity.

We find no error and affirm. We find the same reasoning that we set forth in affirming the trial court's initial order to be applicable to the trial court's refusal to modify the award of child support and alimony:

Appellant specifically challenges the trial court's citation to Reid v. Reid, 57 Ark. App. 289, 944 S.W.2d 559 (1997), and Reid's holding that the clean-hands doctrine bars relief to those guilty of improper conduct in the matter from which they seek relief and therefore, equity will not intervene on behalf of a party whose conduct in connection with the same matter has been unconscientious or unjust. Appellant argues that the court of appeals in Ried stated that a court may consider the fact that a supporting spouse has voluntarily changed his or her employment so as to lessen earning capacity and, in turn, the ability to pay child support. He then distinguishes Reid by saying that he did not voluntarily leave his job, but rather he was terminated due to the criminal charges filed against him. However, the court in Reid specifically stated its agreement with the principle that "equity will not come to the aid of one who of his or her own volition engages in criminal behavior and suffers the consequences which affect the ability to pay child the support." Reid, 57 Ark.App. at 294, 944 S.W.2d at 562.

We therefore agree with the trial court's assessment in rendering its opinion that it was the voluntary acts of appellant that led to the consequence of his losing his job. Consequently, the trial court did not err in finding that equity did not require that appellant be afforded relief.

We similarly agree that appellant's depression and emotional state attributing to appellant's current inability to work are the consequence of appellant's voluntary criminal acts. Accordingly, we can find no error in the trial court's refusal to grant him relief from the orders to support his family.

Affirmed.

Gladwin and Griffen, JJ., agree.