Ritchey v. Frazier

Sheila Marie RITCHEY v. Rick Allen FRAZIER

CA 96-698                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions III & IV
                 Opinion delivered April 9, 1997


1.   Divorce -- modification of child-support order -- proof
     required. -- A change in circumstances must be shown before a
     court can modify an order regarding child support, and the
     party seeking modification has the burden of showing a change
     in circumstances; a child-support obligation cannot be
     modified based solely on the current chart amount without
     there also being proof of a change in circumstances.

2.   Divorce -- chancellor's determination that sufficient changed
     circumstances exist to increase child support is finding of
     fact -- standard for reversal. -- A chancellor's determination
     as to whether there are sufficient changed circumstances to
     warrant an increase in child support is a finding of fact, and
     this finding will not be reversed unless it is clearly
     erroneous. 

3.   Divorce -- no evidence in record to demonstrate appellee's
     income at time of earlier agreed order -- chancellor's
     decision that appellant failed to show that appellee's income
     had increased not clearly erroneous. -- Where the record
     contained no evidence demonstrating appellee's income as of
     the time of the agreed order, the appellate court could not
     say that the chancellor's decision that appellant failed to
     show that appellee's income had increased since the entry of
     that order was clearly erroneous. 

4.   Divorce -- appellant failed to meet initial burden of showing
     change of circumstances -- not allowing proof of appellee's
     income as of date that motion for increase in support was
     filed did not prejudice appellant. -- The chancellor did not
     err in refusing to allow appellant to present proof of
     appellee's income as of the date that the motion for an
     increase in support was filed or to allow her to proffer that
     evidence; where the only evidence that appellant sought to
     introduce was evidence of appellee's income at the time the
     motion for an increase was filed, and since appellant failed
     to meet her initial burden of showing a change in
     circumstances, proof of appellee's income at that point in
     time could not possibly have affected the outcome of this case
     and was thus of no consequence; no reversible error occurred.
     

     Appeal from Pulaski  Chancery Court, First Division; Alice
Gray, Chancellor; affirmed.
     Everett O. Martindale, for appellant.
     John S. Kitterman, for appellee.

     Judith Rogers, Judge.
     The appellant, Sheila Ritchey, appeals from an order denying
her motion for an increase in child support which she had brought
against appellee, Rick Frazier, her former husband.  Appellant
raises two issues for reversal of the chancellor's decision.  She
contends that the chancellor erred by refusing to increase child
support at the conclusion of the hearing held on November 29, 1995,
and that the chancellor erred by refusing to allow her to present
evidence demonstrating appellee's income at the time her motion for
an increase was filed.  We find no reversible error and affirm.
     Our review of the record discloses that the parties were
divorced in 1987.  On January 27, 1994, an agreed order was
entered, based upon the joint motion of the parties, reducing
appellee's child support obligation to $50 a week.  On August 23,
1994, appellant filed a motion to modify the agreed order based on
the allegation that appellee's income had increased since entry of
the order.  Appellee countered with a motion for a change of
custody of their two children.  Other motions, not pertinent to
this appeal, were filed as well.  All matters pending before the
court were set down for a hearing on September 5, 1995.  However,
testimony was not concluded on that date and further hearings were
held on November 29, 1995, and February 14, 1996.  By order of
March 27, 1996, the chancellor disposed of the various motions
submitted, which included the denial of appellant's motion
requesting an increase in child support.  This appeal followed.
     The issues in this appeal arise from events which transpired
at the hearings on November 29 and February 14.  Near the end of
the day of trial on November 29th, it was apparent that the hearing
would run on to another day, and the chancellor expressed the
desire to go forward with the proposed testimony of the children so
as to avoid their having to appear at a later date.  Appellant's
counsel then asked the chancellor for a ruling on the request for
an increase in support, stating that the motion had been pending
for more than a year and that he had elicited "the only testimony
we have regarding that motion."  Appellee's counsel moved for a
directed verdict on the ground that appellant had failed to show a
change in circumstances since no evidence had been presented as to
appellee's income at the time the agreed order was entered.  In the
following discussion, appellant's counsel stated that he had not
yet had the opportunity to elicit much testimony, but he noted that
the chart amount based on appellee's current income was twice the
amount reflected in the agreed order.  The chancellor disagreed
with counsel's representation that he had not had the chance to
question appellee, recalling that she had hinted to counsel during
his cross-examination of appellee that evidence of appellee's
income at the time of the previous order was needed in order for
her to determine whether circumstances had changed.  The chancellor
did not make a definitive ruling on the motion; however, she held
counsel to his previous statement that all the testimony he
intended to introduce had been presented and ruled that the record
was closed on the issue of support.  At the subsequent hearing on
February 14, the chancellor refused to allow further evidence on
the subject, even refusing the appellant the opportunity to make an
offer of proof, which consisted of a verification from appellee's
employer showing appellee's income as of August 1994.
     As her first point, appellant contends that the chancellor
erred by not granting her motion for an increase in support at the
hearing on November 29.  Appellant argues that it was shown that
appellee presently earned $405 a week, which results in a child-
support payment of $100 a week according to the applicable family
support chart.  She argues that a sufficient change in
circumstances was demonstrated since the current chart amount is
twice the amount reflected in the agreed order.  Appellant is
mistaken in the belief that this evidence alone demonstrates a
change in circumstances.  
     A change in circumstances must be shown before a court can
modify an order regarding child support, and the party seeking
modification has the burden of showing a change in circumstances. 
Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993).  In Ross
v. Ross, 29 Ark. App. 64, 776 S.W.2d 834 (1989), we held that a
child-support obligation cannot be modified based solely on the
current chart amount without there also being proof of a change in
circumstances.  The change in circumstances asserted by appellant
was that appellee's income had increased since the entry of the
agreed order.  However, appellant failed to introduce evidence of
appellee's income when the agreed order was entered, or perhaps
counsel failed to comprehend the chancellor's prompting that such
evidence was necessary in this case.
     A chancellor's determination as to whether there are suffi-
cient changed circumstances to warrant an increase in child support
is a finding of fact, and this finding will not be reversed unless
it is clearly erroneous.  Roland v. Roland, supra.  Since the
record contains no evidence demonstrating appellee's income as of
the time of the agreed order, we cannot say that the chancellor's
decision that appellant failed to show that appellee's income had
increased since the entry of that order is clearly erroneous.    
     We note that appellant's argument might have proven successful
if it had been shown that the previous amount of support had been
set in accordance with the child-support chart.  However, the
amount contained in the order was based upon the agreement of the
parties, and there was testimony that it was not based on
appellee's income in reference to the support chart.  
     Appellant next argues that the chancellor erred in refusing to
allow her to present proof of appellee's income as of August 1994,
the date the motion for an increase in support was filed, or to
allow her to proffer that evidence.  While we may look with
disfavor on the actions of the chancellor, particularly since the
interests of minors are involved, we can discern no prejudice to
appellant flowing from the chancellor's rulings.  The only evidence
appellant sought to introduce was evidence of appellee's income at
the time the motion for an increase was filed.  Since appellant
failed to meet her initial burden of showing a change in
circumstances, proof of appellee's income at that point in time
cannot possibly affect the outcome of this case, and is thus of no
consequence.  We will not reverse in the absence of prejudice. 
Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994).  Therefore,
we cannot say that reversible error occurred.
     Affirmed.
     Pittman, Cooper, Bird and Stroud, JJ., agree.
     Meads, J., dissents.


                Margaret Meads, Judge, dissents.


     The majority opinion overlooks certain facts which, I believe,
are determinative of the correct result in this case.  Although
appellant filed her motion for increased child support before
appellee's motion for change of custody, the trial court decided to
hear appellee's motion first.  Hearing of this motion lasted two
days and was still incomplete, with a third day scheduled two and
one-half months later.  Toward the end of the second day of
testimony, the court interrupted appellant's cross-examination of
appellee, but stated that she could reserve the rest of her cross-
examination of this witness.  
     Appellant asked for a ruling on her support motion even though
she had not yet had the opportunity to present her case, because
hearing of the motion had been delayed for over a year.  Counsel
for appellant stated:  "That's the only testimony we have regarding
that motion, Your Honor."  Counsel for appellee then moved for a
directed verdict on the support motion.  The court announced that
the record was closed on the issue of child support.
     When the hearing resumed on February 14, 1996, appellant
attempted repeatedly to offer proof of appellee's income, but the
court denied the proffer, stating again that the record was closed
on the child-support issue. 
     I agree with the majority that the evidence in the record is
insufficient on the issue of changed circumstances to justify a
child-support modification.  However, I agree with appellant that
the chancellor should have allowed her to present her case and that
the chancellor's refusal to do so was an abuse of discretion. 
While appellant unwisely pressed for a ruling on the child-support
motion before presenting her case, it appears that her insistence
resulted from confusion, misunderstanding, and frustration over the
inordinate delay in getting a proper hearing of the motion.
     Our court has stated:
     [F]ailure through inadvertence to place before the trier
     of fact important evidence is a basis for reopening the
     evidence, and that refusal to permit it to be reopened
     under such circumstances will result in reversal.  The
     principle involved is that evidence should be reopened
     where to do so would serve the interests of justice and
     cause no undue disruption of the proceedings or
     unfairness to the party not seeking to have it reopened. 
     
          Many of the cases in which a trial court has been
     held to have exceeded its discretionary authority . . .
     involve inadvertent failures to produce evidence without
     which the court is forced to direct a verdict against the
     party whose inadvertence caused the lapse. (Citations
     omitted.)

H & M Realty v. Union Mechling Corp., 268 Ark. 592, 597, 595 S.W.2d 232, 235 (Ark. App. 1980).
     Also, in Sugarloaf Development Co. v. Heber Springs Sewer
Improvement Dist., 34 Ark. App. 28, 805 S.W.2d 88 (1991), appellant
filed a motion for a new trial asking that the record be reopened
for the taking of testimony.  On appeal, appellant argued that the
chancellor erred in denying its motion for a new trial, and at oral
argument appellant's counsel conceded that the evidence had
inadvertently been omitted at trial, but urged that "in equity and
good conscience" the chancellor should have allowed the reopening
of the record for further proof.  Our court noted that the evidence
was necessary to appellant's request for relief, and held the
chancellor abused his discretion in not reopening the record for
the presentation of the proof.  
     I believe these cases are analogous to the instant case and,
therefore, even if the chancellor was correct in considering that
counsel had concluded his evidence, I believe the chancellor abused
her discretion in not allowing appellant to present proof on the
issue of child support.
     The evidence was necessary to appellant's request for relief,
no prejudice would have resulted to appellee, and the court would
not have been inconvenienced by permitting the evidence to be
admitted.  Moreover, while it is true that appellant asked for a
ruling on the motion for an increase in child support, it is also
true that the motion had been pending for fifteen months; that
appellant had not put on any witnesses; that counsel's cross-
examination of appellee was interrupted by the court; that cross-
examination was not completed; and that appellant repeatedly asked
to be allowed to present evidence on that issue.  Under these
circumstances I believe there was at least some confusion which
contributed to appellant's failure to submit evidence important to
proving her case.  Moreover, appellee would have suffered no
prejudice by allowing appellant to present the evidence.  Finally,
because the interests of children are involved, I believe the
chancellor should have allowed appellant to put on evidence
regarding the issue of child support. 
     I would reverse and remand for the chancellor to take evidence
of the issue of child support. 
     I respectfully dissent.