Reid v. Reid

Danny Harold REID v. Theresia Neely REID

CA 96-790                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
                 Opinion delivered May 21, 1997


1.   Parent & child -- amount of child support rests within
     chancellor's discretion -- change in circumstances must be
     shown before court can modify a support order. -- Ordinarily,
     the amount of child support lies within the sound discretion
     of the chancellor; a chancellor's finding as to child support
     will not be disturbed on appeal unless it is shown that the
     chancellor abused his discretion; 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; in making this
     decision, the chancellor must consider the needs of one party
     as compared to the ability of the other to pay.

2.   Equity -- clean-hands doctrine -- purpose of invoking. -- The
     clean-hands maxim bars relief to those guilty of improper
     conduct in the matter from which they seek relief; equity will
     not intervene on behalf of a party whose conduct in connection
     with the same matter has been unconscientious or unjust; the
     purpose of invoking the clean-hands doctrine is to protect the
     interest of the public on grounds of public policy and to
     preserve the integrity of the court; it is within the
     chancellor's discretion to determine whether the interests of
     equity and justice require application of the doctrine.
3.   Parent & child -- court may consider fact that supporting
     spouse voluntarily changed employment to lessen earning
     capacity -- supporting spouse does not have total discretion
     in making financial decisions that affect welfare of family. -
     - 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; a supporting spouse does not have total discretion in
     making financial decisions that affect the welfare of the
     family, if the minor children have to suffer at the expense of
     those decisions.

4.   Parent & child -- misconduct that resulted in appellant's
     imprisonment was perpetrated against child for whom appellant
     owed duty of support -- chancellor's refusal to suspend
     support obligation on basis of unclean hands upheld. -- The
     chancellor's refusal to suspend appellant's support obligation
     while he was in prison was upheld on the ground of unclean
     hands where the misconduct that resulted in appellant's
     imprisonment was perpetrated against a child for whom
     appellant owed a duty of support and thus bore a direct
     connection to the proceeding at hand; equity will not come to
     the aid of one who of his or her own volition engages in
     criminal behavior and suffers the consequences that affect the
     ability to pay child support; the needs of the children have
     remained unchanged, and, as between appellant and his
     children, the interest of the children must prevail. 

5.   Parent & child -- chancellor's finding on change of
     circumstances warranting change in child support is finding of
     fact -- finding will not be reversed unless clearly erroneous.
     -- A chancellor's finding as to whether there are sufficient
     changed circumstances to warrant a change in child support is
     a finding of fact and will not be reversed unless it is
     clearly erroneous.

6.   Parent & child -- appellant failed to show change in
     circumstances to justify abatement of support obligation --
     chancellor's decision affirmed. -- The chancellor's conclusion
     that appellant failed to meet his burden of showing a change
     in circumstances to justify abatement of the support
     obligation was affirmed where appellant relied only on his
     incarceration as a change in circumstances; appellant failed
     to produce evidence that he had no assets or other sources of
     income available for the payment of support and offered no
     testimony concerning his anticipated release from prison or
     what, if any, wages he might be eligible to earn during his
     incarceration; appellant failed to demonstrate that he was
     wholly without the ability to meet his obligation; the
     chancellor's finding was not clearly erroneous.  

     Appeal from Jefferson Chancery Court, Second Division; Leon N.
Jamison, Chancellor; affirmed.
     Roland E. Darrow, II, for appellant.
     Sharon M. Fortenberry, for appellee.

     Judith Rogers, Judge.
     This is an appeal from an order denying appellant's request
for his child-support obligation to be suspended during his
incarceration in prison.  Appellant argues on appeal that the
chancellor abused his discretion by refusing to abate the payment
of support because his imprisonment rendered him incapable of
producing income with which to meet his obligation.  We find no
abuse of discretion and affirm.
     When the parties divorced in July of 1995, custody of their
two children, ages sixteen and four, was placed with appellee,
Theresia Neely Reid.  Appellant, Danny Harold Reid, was ordered to
make biweekly payments of $200 in child support.  On December 4,
1995, appellant was convicted of raping the parties' sixteen-year-
old daughter, and he was sentenced to a term of twenty years in
prison.  On February 5, 1996, appellant filed a motion seeking
abatement of his child-support obligation, urging his conviction
and resulting imprisonment as the sole change in circumstances.
     Appellee was the only witness at the hearing.  She testified
that appellant was a few hours shy of obtaining a bachelor's degree
in engineering and that he was earning $42,000 a year at the time
of the divorce.  She agreed to a reduction in child support to the
minimum family chart amount of $30 a week, but she stated her
belief that appellant should not benefit by being relieved of his
duty of paying support as a reward for raping their daughter.  
     After a brief recess, the chancellor issued his ruling denying
appellant's motion to suspend the payment of child support.  The
chancellor found that the children's needs had not diminished and
that the position in which appellant found himself was one of his
own creation.  He thus found no change in circumstances warranting
abatement of the obligation.  The chancellor further concluded that
appellant should not be allowed to profit from a wrongful act
committed against a child for whom he was obliged to pay support. 
The chancellor also reasoned that the continuation of the support
obligation would not place an undue burden on appellant, given his
level of education and earning potential.  An order was entered
incorporating the chancellor's findings and reducing appellant's
child-support payments to $30 a week.  This appeal followed.
     Ordinarily, the amount of child support lies within the sound
discretion of the chancellor.  Irvin v. Irvin, 47 Ark. App. 48, 883 S.W.2d 862 (1994).  A chancellor's finding as to child support will
not be disturbed on appeal unless it is shown that the chancellor
abused his discretion.  Borden v. Borden, 20 Ark. App. 52, 724 S.W.2d 181 (1987).  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.  Hunt v. Hunt, 40 Ark. App. 166, 842 S.W.2d 470
(1992).  In making this decision, the chancellor must consider the
needs of one party as compared to the ability of the other to pay. 
Irvin v. Irvin, supra.
     Appellant argues on appeal that the chancellor abused his
discretion by refusing to abate his child-support obligation during
the period of his incarceration.  We are not convinced that the
record in this case demonstrates such an abuse.  The principle at
the core of the chancellor's ruling was that appellant was not
entitled to relief because he had come into court with unclean
hands.  It has long been recognized that the clean hands maxim bars
relief to those guilty of improper conduct in the matter as to
which they seek relief.  Equity will not intervene on behalf of a
party whose conduct in connection with the same matter has been
unconscientious or unjust.  Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995); Marshall v. Marshall, 227 Ark. 582, 300 S.W.2d 933 (1957).  It is said that the purpose of invoking the clean
hands doctrine is to protect the interest of the public on grounds
of public policy and to preserve the integrity of the court. 
Grable v. Grable, 307 Ark. 410, 821 S.W.2d 16 (1991).  It is within
the chancellor's discretion to determine whether the interests of
equity and justice require application of the doctrine.  Id.
     Although there is another school of thought, see e.g. Edmonds
v. Edmonds, 633 P.2d 4 (Ore. Ct. App. 1981), we are of the same
mind as was the court in Ohler v. Ohler, 369 N.W.2d 615 (Neb.
1985).  In that case, the payor spouse sought to suspend his child-
support obligation because he had been sentenced to prison for
fifteen years.  In affirming the trial court's decision denying the
petition, the court based its decision on the maxim of unclean
hands and ruled that, under the circumstances, equity would not
grant relief.  The court further stated:
     Incarceration is certainly a foreseeable
result of criminal activity; we find no sound
reason to relieve one of a child support
obligation by virtue of the fact that he or
she engaged in criminal conduct.  There is no
reason those who have had to step in and
assume the applicant's obligation should not
be reimbursed by the applicant should his
future position enable him to do so.

     Further, we do not see how the best
interests of the children for whom the support
was ordered would be served by temporarily
terminating the appellant's child support
obligation.
Id. at 618.  The court also predicated its holding in part on a
decision where it was recognized that, although unemployment or
diminution of earnings is a common ground for modification, a
petition for modification will be denied if the change in financial
condition is due to the fault, voluntary wastage, or dissipation of
one's talents or assets.  The court then reasoned that a child-
support obligation should not be modified where the means with
which to pay were reduced or eliminated by criminal activity.
     In this respect, the opinion in Ohler is consistent with
Arkansas law.  In Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77
(1988), it was held 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.  The court ruled that a supporting spouse does not
have total discretion in making financial decisions which affect
the welfare of the family, if the minor children have to suffer at
the expense of those decisions.
     We uphold the decision of the chancellor in this case on the
ground of unclean hands.  The misconduct which resulted in
appellant's imprisonment was perpetrated against a child for whom
appellant owed a duty of support and thus bears a direct connection
to the proceeding at hand.  We agree 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 support.  Moreover, the needs of the children have
remained unchanged, and, as between appellant and his children, the
interest of the children must prevail.  We can think of no reason
how their best interests are served by depriving them of support or
why appellee should be left to shoulder the burden alone when there
remains the possibility that the appellant can make recompense in
the future.
     We also cannot disagree with the chancellor's conclusion that
appellant failed to meet his burden of showing a change in
circumstances to justify abatement of the obligation.  A
chancellor's finding as to whether there are sufficient changed
circumstances to warrant a change in child support is a finding of
fact, and this finding will not be reversed unless it is clearly
erroneous.  Schwarz v. Moody, 55 Ark. App. 6, 928 S.W.2d 800
(1996).  Appellant relied only on his incarceration as a change in
circumstances.  Appellant failed to produce evidence that he had no
assets or other sources of income available for the payment of
support.  Similarly, appellant offered no testimony concerning his
anticipated release from prison or what, if any, wages he might be
eligible to earn during his incarceration.  Appellant has thus not
demonstrated that he was wholly without the ability to meet his
obligation.  Consequently, the chancellor's finding is not clearly
erroneous.  We also note that a chancellor has the authority to
require the person ordered to make child-support payments to
furnish a bond or post security to guarantee compliance with the
order.  Ark. Code Ann.  9-12-312(c)(1) & (2) (Supp. 1995).
     Finding no error in the chancellor's decision, we affirm.
     Affirmed.
     Bird and Griffen, JJ., agree.