Amanda Lewellyn Fleming v. Tim Lewellyn

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

AMANDA LEWELLYN FLEMING

APPELLANT

V.

TIM LEWELLYN

APPELLEE

CA05-318

DECEMBER14, 2005

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[NO. DR 2000-207]

HON. STEPHEN C. GARDNER

AFFIRMED

Josephine Linker Hart, Judge

Amanda Lewellyn Fleming appeals from an order of the Pope County Circuit Court denying her motion for change of custody of the parties' two minor children, reducing her weekly child-support obligation, and awarding attorney's fees to her ex-husband, appellee Tim Lewellyn. On appeal, Fleming argues that the trial court erred by: 1) setting her child support payments at $49 per week based on her gross wages of $140 for a twenty-hour work week rather than her net take-home pay; 2) awarding Lewellyn attorney's fees and costs; and 3) finding that there had not been a material change in circumstances and that the proof did not support a finding that a change in custody was in the best interest of the minor children. We affirm.

On June 9, 2004, Fleming petitioned for change of custody of the parties' two minor children, Kelly and Jake. This petition was the second challenge to the court's award of custody of the minor children since the parties entered into a settlement of the issue that was

incorporated in the December 5, 2000, decree granting them an uncontested divorce.1 Fleming now alleges that there was a material change in circumstances since Lewellyn was granted full custody in 2001. She asserts that the minor children "are of sufficient age and competent to have a right to have their position heard as to the issue of primary custodian"; that the children desired to live with Fleming; that Jake was having "difficulty in school, both academically and through disciplinary issues"; and that Lewellyn had "habitually and consistently displayed tendencies in regards to provision of care and welfare of the minor children simplifying the need for transfer of custody." The same day, Fleming also filed a petition to reduce her child-support obligation, asserting that her income had been reduced since the previous support order had been entered on December 18, 2001.

After a lengthy hearing, the trial court denied the petition, finding that Fleming failed to prove that there had been a material change in circumstances since the last custody order or that such a change of custody would be in the children's best interest. The trial court did, however, reduce Fleming's child-support obligation, basing its calculation on her testimony that she earned $140 per week. The trial court also awarded Lewellyn $1,000 in attorney's fees. Because Fleming raises three points, we will set forth the relevant facts as we consider each argument.

Fleming, who had reduced her work week to twenty hours since the entry of the last support order, first argues that the trial court erred and abused its discretion in setting child support payments at $49 per week based on weekly gross wage of $140. CitingAdministrative Order Number 10, she contends that the trial court "erroneously set her child support obligation based on her gross pay as opposed to her weekly take-home pay." We note, however, that it was Fleming's burden of proof to establish her earnings, and she failed to submit the Affidavit of Financial Means required by Section IV of Administrative Order Number 10. Instead, she relied exclusively on her testimony that did not provide any evidence of the dollar amount of deductions from her pay. Accordingly, we hold that the failure of the trial court to give credit for the deductions recognized by our child-support guidelines may not be ascribed to trial-court error, but instead to Fleming's failure to provide the trial court with the necessary proof.2

Fleming next argues that the trial court erred and abused its discretion in awarding attorney's fees and costs to Lewellyn. She asserts that there are fatal defects in Lewellyn's fee petitions in that they lacked an affidavit, "did not set out the terms of the parties' agreement," and did not "cite the controlling authority," as required by Rule 54(e) of the Arkansas Rules of Civil Procedure. She relies on Crawford & Lewis v. Boatman's Trust Co., 338 Ark. 679, 1 S.W.3d 417 (1999), for the proposition that failure to include these items required that the trial court deny the request for fees. Furthermore, Fleming contends that there was not an equitable basis for the award of fees because she prevailed on the support-reduction issue and there was a "disparity in income" between her and Lewellyn. We hold that the trial court did not abuse its discretion in awarding fees to Lewellyn.

It is well established that the allowance of fees is within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a showing of clear abuse. Ford v. Ford, 270 Ark. 349, 605 S.W.2d 756 (Ark. App. 1980). In pertinent part, Rule 54(e) states:

(1) Claims for attorney'ss' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.

(2) Unless otherwise provided by statute or order of the court, the motion must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute or rule entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. If directed by the court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which the claim is made.

Contrary to Fleming's assertion, the fee petition submitted by Lewellyn's trial counsel did have an affidavit attached. We are mindful that there are typographical errors in the affidavit, but we do not believe that the errors rendered the affidavit a nullity. Also we hold that the failure to recite the "controlling authority" in the fee petition is not a fatal defect in this instance. Fleming did not dispute the trial court's authority to award fees and costs, and she did not object to the trial court's stated intention to award fees; in fact, she submitted a fee petition herself. As to Fleming's reliance on Crawford we do not believe that it is controlling in this situation. While it is true that Crawford suggests that inclusion of the authority for the award of fees was mandatory under Rule 54(e), in that case, the supreme court affirmed the denial of a motion for fees where the fee petition did not apprise the trial court of the reason that the attorney's fees should be awarded. Conversely, in the instant case both parties accepted the inherent authority of the trial court to award attorney's fees in domestic-relations cases.3 Furthermore, Fleming did not alert the trial court to the allegeddeficiencies in Lewellyn's fee petition, and it is well established that a question not raised in the court below by the pleadings or arguments of counsel cannot be considered for the first time on appeal. Office of Child Support Enforcement v. Calbert, 70 Ark. App. 520, 20 S.W.3d 450 (2000); Robinson v. Winston, 64 Ark. App. 170, 984 S.W.2d 38 (1998).

Finally, we disagree that the equities weighed against the award of fees in this case. Disparity in incomes is a relevant factor for the circuit court to consider, but standing alone it will not justify an award of attorney's fees. Davis v. Williamson, ___ Ark. ___, ___ S.W.3d ___ (Sept. 30, 2004); Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). Likewise income disparity is only one factor in the determination whether attorney's fees should be awarded. Here, Fleming's weekly wages were not conclusive on the question of whether she had a lesser ability to pay the fees than did Lewellyn. The evidence indicated that she was living in a 2500-square-foot house, situated on eight acres, where she kept the family horses. Furthermore, she testified that she voluntarily reduced her work hours and, as a consequence, earned less income. Secondly, we note that Fleming filed her petition to change custody less than eighteen months after the supreme court affirmed the previous custody order. In light of the paucity of her proof regarding the allegations that she made in her petition to change custody, we find no error in the trial court's order that Fleming bear a part of the cost.

Finally, Fleming argues that the trial court erred and abused its discretion in finding that there had not been a material change in circumstances and that the proof did not support a finding that a change of custody was in the best interest of the minor children. In cases involving child custody and related matters, we review the case de novo, but we will not reverse a trial judge's findings in this regard unless they are clearly erroneous. Deluca v. Stapleton, 79 Ark. App. 138, 84 S.W.3d 892 (2002). A finding is clearly erroneous when,although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1 (1999).

Because the question of whether the trial court's findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child's best interest. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). In determining whether a change in custody is warranted, the trial judge must first decide whether there has been a material change in circumstances since the most recent custody order. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). The burden of proving such a change is on the party seeking the modification. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). While custody is always modifiable, in order to promote stability and continuity for the children and to discourage repeated litigation of the same issues, our courts require a more rigid standard for custody modification than for initial custody determinations. Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 388 (2002).

We note that the trial court did not make specific findings of fact in this case, and Fleming did not specifically request such findings. While it is true that our review is de novo, the lack of specific findings, particularly in regard to disputed points and the credibility of witnesses, makes our review more difficult. It should be noted that absent specific findings, we presume that the trial court acted properly and made the findings necessary to support its judgment. Tillery v. Evans, 67 Ark. App. 43, 991 S.W.2d 644 (1999); Jocon, Inc. v. Hoover, 61 Ark. App. 10, 964 S.W.2d 213 (1998). Although, in her argument, Fleming referred to specific parts of the testimony that she urges us to find dispositive, given the equivocal nature of the proof presented in this case, we cannot say that the trial court'sfinding that Fleming failed to prove a material change of circumstances was clearly erroneous.

At the hearing, Kelly, age thirteen, and Jake, age eight, were called to testify regarding their living preferences, school problems, and the quality of the care they received from their father. Kelly stated that she wanted to live with her mother, but admitted that she thought that "either place is going to be fine." She also testified that she knew that her mother had been upset when her mother became aware that she expressed a preference to live with her father, but she was "happy" about living with her dad. In addition, Kelly revealed that her mother told her that "it would be easier" for her to live with her mother if she "made bad grades," and after that Kelly admitted that she started getting "some bad grades." She also stated that she was concerned about hurting both of her parents' feelings if she expressed a clear preference about where she wanted to live. She further noted that Jake's behavior problem at school had "pretty much resolved itself."

Jake's testimony was substantially similar. He stated that he wanted to live with both parents and that he was "happy with both." He also confirmed that his mother had talked to him about the custody case "pretty much every time I've seen her," and noted that he felt "pressured" by his mother to the point that it was causing him stomach distress. Jake further noted that his mother told him that he would have to make a choice in this case or he and Kelly "might get split up." He admitted that he told Dr. Steven Shry and his mother that he wanted to live with her, but stated in open court, "I kind of want to live with my dad." He acknowledged past behavior problems at school, but asserted that he and his sister were "good kids."

Pam Pilgrim Smith, Jake's second-grade teacher, testified that she was aware that, early in the year, Jake stated in his journal that he wanted to live with his mother, however,he subsequently made an entry that said, "I want to live with my mom and my dad, but she is bothering my sister and me. We don't like it. I have to make a choice. I feel good with my dad. I like living with my dad." She admitted, "To be honest, I don't know where Jake wants to live." She further stated that she was not aware of any behavioral problems Jake was having at school. Further, she testified that Jake "was a little below grade level at the beginning of the year when we tested for reading, " and since then "kind of regressed a little," but also noted that "Jake has never missed a night of reading," and "as far as I can tell, Mr. Lewellyn is helping him with reading and all his other academics." Smith stated that she had "not found any problems with where Jake is living now."

Dr. Steven Shry testified that he met with the children on two occasions. In one of the sessions, he administered achievement tests to Kelly and Jake, and the tests revealed that "relative to Jake and Kelly's intellectual level, there is a discrepancy," with Kelly performing two grade levels and Jake one grade level below their respective classes. He stated that he believed his tests were more accurate than the Benchmark exams administered in the public schools. Shry also stated that he questioned the children as to whether they "would be more comfortable with their mother or their father" and each child told him that they would be "more comfortable" with the mother. Shry further noted that, although Kelly had consistently expressed her preference for living with her mother, Jake was "more nebulous."

Shry admitted that he did not ask Lewellyn to "come back and visit with me, take any tests, or anything," because "he wasn't invited," and "the child's mother was paying for the services and that was their time." He also noted that there was an "outburst by the father" in his office when Lewellyn confronted him about having Fleming present while he interviewed the children. He characterized Lewellyn's behavior as "controlling tendenciesthat caused me concern." Shry also stated that Fleming told him that her "ex-husband drove her to suicide due to his dominating nature," and that "she became anorexic."

Dennis Fleming testified that he and Amanda lived in a 2500-square-foot home situated on eight acres of land. He and his wife worked for the real estate firm of Lindsey and Associates. He sponsored into evidence pictures of his home and of the children with their pet dogs and horses. He claimed he never saw his wife pressuring the children to decide where they want to live.

Amanda Fleming testified that Jake's grades were "below basic and they have been that way since kindergarten, as far as I know." She also stated that she told Lewellyn about Jake's "discipline problem" which manifested when the child was in the first grade. According to Fleming, Lewellyn simply told her that he would "take care of it." She further testified that she was aware that Kelly had made poor grades. Fleming also described an incident at Christmas in which Jake threw a "fit" over having to go to Lewellyn's residence and recalled a time when Lewellyn had not taken Jake to the doctor after he was bitten by his grandparent's dog. Fleming also admitted that she reported Lewellyn to the Arkansas Department of Human Services, alleging child neglect because Lewellyn had left the children in his truck while he attended an early morning safety meeting held by his employer, and that the allegation was determined to be unfounded.

Lewellyn testified that Jake had disciplinary problems in the lower grades, but those problems had been resolved. He confirmed that he used corporal punishment with Jake, but asserted that it had rectified his discipline problems. Lewellyn also acknowledged that Kelly had "several papers or reports of `F's' and `D's' come in," but he testified that he was helping her with her work. He also stated that he was working closely with Jake to improve his reading and math skills. Lewellyn also admitted that he had taken the children with himto some "early morning meetings" at work and that DHS had investigated him because of it, but no adverse action had been taken.

Amy Nicole Moody, Kelly's seventh-grade language arts teacher, testified that Kelly currently had a "C" that was "almost a B," that she currently had a "B" in mathematics, and that on her Benchmark tests she was proficient in math and nearly proficient in literacy, which was "about par" for students her age. However, she also testified that Kelly had told her that she wanted to live with her mother.

Debbie Jones, a counselor at Crawford Elementary School where Jake was enrolled, testified that she had met with Jake quite often recently and found that Jake was upset over being forced by his mother to choose his custodial placement. She stated that he was "torn between his parents," and she opined that it was Fleming and not Lewellyn that was pressuring Jake to make a choice in the custody dispute. Jones acknowledged that Jake had some discipline problems at school. She also testified that although Jake "is probably not as strong academically as we would like him to be." Jake took a reading test the day before the hearing, and she noted that his "reading is at average right now" and that "he is making progress."

Dr. Don Ott, owner of a Russellville counseling clinic, Christian Psychological Resources, testified that he was familiar with the Lewellyn family, having testified the last time the parties had contested custody and that he had "seen" the children "about a half a dozen" times since then for "family therapy." According to Dr. Ott, the first time he had contact with the minor children was at the behest of Fleming, while the parties were still married, but most recently, his involvement with the family was initiated by Lewellyn.

He recalled a January 6, 2004, session with the family that was preceded by Fleming informing him that Jake was "very disruptive, very uncooperative" after a Christmas visitbecause he did not want to return to his father's home. However, he stated that in his conversation with Jake, the child told him that he was looking forward to returning to his father's home to open Christmas presents. Jake further stated that he was upset and misbehaved because he was just awakened from a nap and his step-father threatened to spank him if he got undressed and went back to bed. At a subsequent session on January 14, 2004, Dr. Ott's notes reflected that Jake's oppositional behavior had resolved.

Dr. Ott further testified that his May 14, 2004, notes revealed that Kelly told him that she was experiencing guilt over stating her desire to live with her father because her mother had told her how "hurt" she was because of it. According to Dr. Ott, on November 3, 2004, he specifically asked Kelly if she wanted to live with her mother and "her response was basically that she would tell her that because she didn't want her to keep going on at her about it." He noted that both children "volunteered" that their mother "suggested things" to them that would influence which parent they would live with, specifically getting "poor grades in the case of Kelly [and] misbehavior on the part of Jake." Finally, he opined that the "interaction" between Lewellyn and his children had always been "appropriate" and that the children had always been "very responsive," "very respectful," and "affectionate" towards their father.

Under these facts, we are unable to hold that the trial court's finding that there had not been a material change of circumstances was clearly erroneous. Regarding the preference of the children as to their custodial arrangement, it is well settled that while a child's preference is an appropriate factor for a trial judge to take into account, it has never been considered as either a controlling factor or a material change in circumstances in the absence of other considerations. McCullough v. McCullough, 222 Ark. 390, 260 S.W.2d 463 (1953); see also Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). Moreover, weare unable to discern from this record that the children had a clear preference for either parent. The proof was similarly equivocal regarding the children's alleged difficulties in school. While it was true that Dr. Shry testified that the children were significantly underperforming in school, the testimony of school officials Debbie Jones and Pam Smith largely contradicted this assessment. While failure to achieve is a factor that may be considered in determining whether a change of circumstances has occurred, where, as in this case, the testimony concerning the children's performance is conflicting, we defer to the trial court to resolve questions of the witnesses' credibility.

We acknowledge that there was also considerable testimony that Jake exhibited disciplinary problems in the past; however, his offending behaviors had ceased by the time of the hearing. Finally, Fleming's allegation that Lewellyn had "habitually and consistently displayed tendencies in regards to provision of care and welfare of the minor children simplifying the need for transfer of custody" was simply not substantiated. Based on the proof submitted, we cannot say that the trial court abused its discretion in denying Fleming's petition to change custody.

Having determined that the trial court was not clearly erroneous in determining that Fleming had not proven a material change of circumstances, we need not consider whether she established that a change of custody would be in the best interest of the children. Lewellyn v. Lewellyn, 351 Ark. 346, 355, 93 S.W.3d 681, 686 (2002).

Affirmed.

Pittman, C.J., and Gladwin, J., agree.

1 In the December 5, 2000, divorce decree, the parties agreed to "joint custody," with Fleming designated as the "custodial" parent and Lewellyn the "noncustodial" parent. On July 24, 2001, Fleming filed an ex parte petition for change of custody, which was denied on August 8, 2001. The next day she filed a regular petition to change custody, and Lewellyn counterclaimed for custody. After an August 30, 2001, hearing, Lewellyn was awarded custody. Fleming appealed, and the case was affirmed by the supreme court. Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002).

2 We believe this holding is equitable in that the trial court calculated Fleming's child-support obligation on less than full-time wages and ignored the fact that she was entitled to commissions for her real estate listings.

3 Indeed our case law provides ample authority permitting the award of attorney's fees in cases involving the modification of a custody decree. See, e.g., Moore v. Smith, 255 Ark. 249, 499 S.W.2d 634 (1973); Smith v. Smith, 28 Ark. App. 56, 770 S.W.2d 205 (1989); Norman v. Norman, 268 Ark. 842, 596 S.W.2d 361 (Ark. App. 1980).