Warren v. Kordsmeier

Kenneth Dennis WARREN v. Magdalene Warren
KORDSMEIER

CA 96-355                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
               Opinion delivered February 19, 1997


1.   Divorce -- provisions in property-settlement agreement that
     has been incorporated into decree generally cannot be altered
     by court -- exception to rule. -- In cases in which the
     parties' contract is incorporated into the decree, the general
     rule is that the court cannot alter or modify it; however,
     there is an exception to this rule in child custody and
     support matters; provisions in such independent contracts
     dealing with child custody and support are not binding; the
     chancellor always retains jurisdiction and authority over
     child support as a matter of public policy, and, no matter
     what an independent contract states, either party has the
     right to request modification of a child-support award; the
     duty of child support cannot be bartered away permanently to
     the detriment of the child.

2.   Divorce -- agreements not to seek any increase or decrease in
     child support void as against public policy -- chancery court
     always retains jurisdiction over child support. -- An
     agreement not to seek any increases or decreases in child
     support is void as against public policy; a chancery court
     always retains jurisdiction over child support as a matter of
     public policy, such that, regardless of what an independent
     contract states, a chancellor has the authority to modify an
     agreement for child support to meet changed conditions.

3.   Divorce -- chancery court always has jurisdiction and
     authority to modify child support -- case reversed and
     remanded for hearing on appellant's motion to reduce child
     support. -- The case was reversed and remanded for a hearing
     on appellant's motion to reduce his child support after it was
     determined that the parties' property-settlement agreement was
     not a bar to such an action; chancery court always has the
     jurisdiction and authority to modify child support. 
     
     Appeal from Montgomery Chancery Court; Gayle Ford, Chancellor;
reversed and remanded.
     Ed Phillips, for appellant.
     Ralph M. Patterson, for appellee. 
     
     Sam Bird, Judge.
     Appellant Kenneth Dennis Warren appeals a December 8, 1995,
order of the Montgomery County Chancery Court that held that
appellant's motion to reduce his child support was barred by the
parties' property-settlement agreement.  The parties were divorced
on July 21, 1987.  They had entered into a contractual property-
settlement agreement that contained the following provision:
     Due to the nature of the parties' property settlement
     agreement, and the operation of the poultry business by
     the Defendant, the parties have agreed and contracted
     between the two of them the amount of child support shall
     remain the same from now until the children reach 18
     years of age and that the Plaintiff will not seek to
     increase the support at any time hereafter, nor will the
     Defendant seek to decrease the support obligation as
     agreed to and set forth herein.  

     Appellant first argues that the court erred in holding that
because of the wording of the contract the amount of child support
could not be altered.  He cites numerous cases that hold that
regardless of whether provisions are in a divorce decree or in a
property-settlement contract, the court always retains jurisdiction
to modify child-support obligations.  We agree with appellant's
argument and reverse and remand for a new hearing regarding the
modification of child support.
     In Keesee v. Keesee, 48 Ark. App. 113, 891 S.W.2d 70 (1995),
we said:
          Appellant is correct in his assertion that, in cases
     in which the parties' contract is incorporated into the
     decree, the general rule is that the court cannot alter
     or modify it.  See McInturff v. McInturff, 7 Ark. App.
     116, 644 S.W.2d 618 (1983).  However, our courts have
     recognized an exception to this rule in child custody and
     support matters, and have held that provisions in such
     independent contracts dealing with child custody and
     support are not binding.  Id.  See also Lake v. Lake, 14
     Ark. App. 67, 684 S.W.2d 833 (1985).  In Crow v. Crow, 26
     Ark. App. 37, 759 S.W.2d 570 (1988), we held that the
     chancellor always retains jurisdiction and authority over
     child support as a matter of public policy, and that, no
     matter what an independent contract states, either party
     has the right to request modification of a child support
     award.  See also Williams v. Williams, 253 Ark. 842, 489 S.W.2d 744 (1973).

48 Ark. App. at 115-16, 891 S.W.2d  at 72.  And in Paul M. v. Teresa
M., 36 Ark. App. 116, 818 S.W.2d 594 (1991), a paternity case, we
said:
     In the context of divorce litigation, while parties may
     enter into contractual agreements with regard to
     contributions for child support, nevertheless, it is
     settled law in this state that the duty of child support
     cannot be bartered away permanently to the detriment of
     the child.  Storey v. Ward, 258 Ark. 24, 523 S.W.2d 387
     (1975); Robbins v. Robbins, 231 Ark. 184, 328 S.W.2d 498
     (1959).  See also Barnhard v. Barnhard, 252 Ark. 167, 477 S.W.2d 845 (1972).  Likewise, we have held that an
     agreement not to seek any increases or decreases in child
     support is void as against public policy.  Crow v. Crow,
     26 Ark. App. 37, 759 S.W.2d 570 (1988).  These holdings
     are based on the principles that the interests of minors
     have always been the subject of jealous and watchful care
     by courts of chancery, and that a chancery court always
     retains jurisdiction over child support as a matter of
     public policy, such that regardless of what an
     independent contract states, a chancellor has the
     authority to modify an agreement for child support to
     meet changed conditions. Id.

36 Ark. App. at 119, 818 S.W.2d  at 595.  
     Appellee admits the general rule, points out what she calls an
exception to the rule, and argues that appellant failed to show
adequate change of circumstances to justify a reduction in child
support.  Appellee cites McInturff v. McInturff, 7 Ark. App. 116,
644 S.W.2d 618 (1983), as providing an exception to the rule that
child support can always be modified.  In that case we said,
"However, even though child support has been a recognized exception
to the general rule, the Supreme Court has on one occasion refused
to modify a parties' independent agreement when it provided for a
$200 monthly payment which was designated as alimony and child
support. In other words, the amount attributable to child support
was not severable from the alimony award.  Bachus v. Bachus, 216
Ark. 802, 227 S.W.2d 439 (1950)."  McInturff, 7 Ark. App. at 118. 
(Emphasis in the original.)  In Crow, the court held McInturff was
applicable only to its facts.            
         We think that the result in McInturff, that the
     husband was not entitled to a pro rata refund, was
     correct, but our reliance on Bachus and its progeny was
     misplaced.  Nooner, [see citation below] was decided only
     a few weeks before McInturff, and Nooner clearly allows
     a chancellor to determine which amounts are child support
     if the independent contract does not so state.  Again,
     McInturff involved a refund of a lump sum child support
     payment rather than the chancellor's authority to order
     prospective child support payments and, as we noted, our
     ruling did not preclude the husband from petitioning the
     chancery court for future child support.  7 Ark. App. at
     119.  The issue of the refund in McInturff did not
     involve the same public policy considerations as cases
     dealing with prospective child support payments, because
     refusing to refund the money to the father did not
     deprive the children of support.  See Nooner v. Nooner,
     278 Ark. 360, 645 S.W.2d 671 (1983).  McInturff should be
     strictly limited to its unique fact situation because it
     involved a refund of a non-severable, lump sum child
     support payment rather than an order of child support
     based on changed circumstances and the best interests of
     the children.  

Crow, 26 Ark. App. at 41, 759 S.W.2d  at 572-73.  We conclude that
the chancery court always has the jurisdiction and authority to
modify child support. 
     Reversed and remanded for a hearing on appellant's motion to
reduce child support.
     Jennings and Griffen, JJ., agree.