Yell v. Yell

Garry Wayne YELL v. Elizabeth Faye YELL

CA 96-515                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                Opinion delivered March 19, 1997


1.   Parent & child -- parent has legal duty to support child
     regardless of existence of support order -- retroactive
     support is not illegal. -- A parent has a legal duty to
     support a minor child regardless of the existence of a support
     order; retroactive support is not illegal and is often awarded
     when an initial support order is entered. 

2.   Parent & child -- when retroactive modification of court-
     ordered child-support obligation may be assessed -- support
     order remains effective until modified by court of competent
     jurisdiction. -- Retroactive modification of a court-ordered
     child-support obligation may only be assessed from the time
     that a petition for modification is filed; a support order by
     a court of competent jurisdiction remains in force until
     modified by a subsequent decree, or in limited situations by
     operation of law. 

3.   Parent & child -- chancellor has discretion to set amount of
     child support -- absent finding of fraud it is an abuse of
     discretion to impose retroactive modification of support order
     beyond filing date of petition to modify. -- A chancellor has
     discretion to set the amount of child support, and his
     findings in this area will not be disturbed absent an abuse of
     discretion; absent a specific finding of fraud in procuring an
     existing support decree, however, it is an abuse of discretion
     to impose a retroactive modification of a support order beyond
     the filing date of a petition to modify.

4.   Parent & child -- modification of existing court-ordered
     support provision sought -- chancellor abused his discretion
     in retroactively modifying appellant's support obligation. -- 
     Where the appellee sought modification of an existing court-
     ordered support provision, the chancellor abused his
     discretion in retroactively modifying the appellant's support
     obligation to embrace a period of time before appellee filed
     her petition to modify; chancery cases are reviewed de novo on
     the record; accordingly, appellant's support obligation
     applied only from the filing date of the petition to modify; 
     because the chancellor allowed a credit in excess of the
     arrearage that would result, that part of the July 12, 1991,
     order granting judgment against appellant in the amount of
     $2,160.48 was reversed.
     

     Appeal from Benton Chancery Court; Oliver Adams, Chancellor;
reversed.
     Xollie Duncan, for appellant.
     No response.

     Andree Layton Roaf, Judge.
     Garry Wayne Yell appeals from an order of the chancery court
which awarded Elizabeth Faye Yell child support retroactive to
1991, pursuant to a petition to modify support which she filed in
1994.  The chancellor based his award of back support upon a
common-law duty to support.  We agree that the chancellor abused
his discretion in imposing retroactive support, and reverse.     
     Garry Wayne Yell and Elizabeth Faye Yell were divorced in
1982.  The decree awarded Elizabeth custody of the Yellsþ only
child, Ty Logan Yell, and ordered Garry to pay $100 per month for
child support.  On August 10, 1988,  the court modified the divorce
decree, pursuant to an agreement between the Yells made with
benefit of counsel, whereby Elizabeth would retain primary custody,
but Garry's visitation was significantly expanded to the extent
that a shared custody arrangement effectively existed.  The order
also terminated Garry's support obligation.
     In March of 1991, Ty began living with Elizabeth full time,
but continued to spend time with Garry on a regular basis.  Garry
contributed toward his son's support, albeit on an informal basis. 
On June 14, 1994, Elizabeth filed a petition to modify the August
10, 1988, order to again start receiving child support.  In July
1994, Garry estimated the chart amount of support he would be
liable for and began to voluntarily pay $250 per month.  Elizabeth
later amended her petition to also seek retroactive support back to
the time that she resumed full custody in 1991.
     After a hearing, the chancellor entered an order on July 12,
1995, finding that a private agreement between the Yells ended the
shared custody arrangement approximately four years prior to
Elizabeth's June 14, 1994, filing of a petition to modify the
August 10, 1988, order.  Pursuant to this finding, the court
charged Garry with a common-law duty of support and assessed him
$172 per month for the years 1991, 1992, and 1993, for a total of
$6,192.00, less a credit of $4,031.52 based on various receipts and
records provided by Garry.  Finally, the court ordered Garry to
continue to pay the $250 per month in regular support that he began
paying voluntarily in July 1994.  Garry appeals from the order
granting a judgment for support prior to the June 14, 1994, filing
of the petition to modify.  
     Garry raises a single issue: that the trial court erred in
retroactively imposing a financial obligation for support prior to
the date of filing of the petition for modification.  Garry
contends that Arkansas law does not allow a chancery court to make
retroactive changes in a person's child support obligation.  He
relies upon Reigler v. Reigler, 246 Ark. 434, 438 S.W.2d 468
(1969), as support for this proposition.  He further contends that
any change to an existing order must be made by a court, and that
the agreement to end the shared custody arrangement was not
effective in modifying the 1988 order.  Garry submits Sheffield v.
Strickland, 268 Ark. 1148, 599 S.W.2d 422 (1980), as his authority. 
We agree with both contentions.
     It is well settled that a parent has a legal duty to support
a minor child regardless of the existence of a support order. 
Pender v. McKee, 266 Ark. 18, 582 S.W.2d 924 (1979); Nason v.
State, 55 Ark. App. 164, 934 S.W.2d 228 (1996);  Dangelo v. Neil,
10 Ark. App. 119, 661 S.W.2d 448 (1983).  Moreover, retroactive
support is not illegal, and is often awarded when an initial
support order is entered.  See, e.g., Nason, supra; Pardon v.
Pardon, 30 Ark. App. 91, 782 S.W.2d 379 (1990).  See also Wilder v.
Garner, 235 Ark. 400, 360 S.W.2d 192 (1962) (mother awarded back
child support where divorce decree granting custody made no
provision for support).  
     However, retroactive modification of a court-ordered child-
support obligation may only be assessed from the time that a
petition for modification is filed.  Ark. Code Ann.  9-14-234
(Supp. 1995);  Grable v. Grable, 307 Ark. 410, 821 S.W.2d 21
(1991);  Heflin v. Bell, 52 Ark. App. 201, 916 S.W.2d 769 (1996). 
Additionally, it is well settled that a support order by a court of
competent jurisdiction remains in force until modified by a
subsequent decree, or in limited situations by operation of law.  
Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993);  Laroe v.
Laroe, 48 Ark. App. 192, 893 S.W.2d 344 (1995).  
     A chancellor has discretion to set the amount of child
support, and his findings in this area will not be disturbed absent
an abuse of discretion.  Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996); Irvin v. Irvin, 47 Ark. App. 48, 883 S.W.2d 862
(1994).  Absent a specific finding of fraud in procuring an
existing support decree, however, it is an abuse of discretion to
impose a retroactive modification of a support order beyond the
filing date of a petition to modify.  Beavers v. Vaughn, 41 Ark.
App. 96, 849 S.W.2d 6 (1993).  
     In this case, Elizabeth sought modification of an existing
court-ordered support provision, i.e., that neither party pay
support because of a shared custody arrangement.  Consequently, the
cases in which an award of retroactive support has been upheld are
inapplicable to the facts of this case, and we hold that the
chancellor abused his discretion in retroactively modifying Garry's
support obligation to embrace a period of time before Elizabeth
filed her petition to modify.  Because this Court reviews chancery
cases de novo on the record, we accordingly find that Garry's
support obligation applies only from the filing date of the
petition to modify.  Because the chancellor allowed a credit in
excess of the arrearage which would result, that part of the July
12, 1991, order granting judgment against Garry in the amount of
$2,160.48 is reversed.
     Reversed.
     Robbins, C.J., and Griffen, J., agree.