Lovelace v. Office of Child Support Enforcement

Michael W. LOVELACE v. OFFICE OF 
CHILD SUPPORT ENFORCEMENT

CA 97-65                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
               Opinion delivered December 3, 1997


1.   Appeal & error -- appellate court will not reverse on issue not presented
     to trial court. -- The appellate court will not reverse on an
     issue not presented to the trial court; it will not consider
     arguments raised for the first time on appeal or where a
     ruling from the trial court has not been obtained.     

2.   Parent & child -- child support -- amount lies within discretion of
     chancellor -- standard of review. -- The amount of child support
     lies within the sound discretion of the chancellor, and her
     finding will not be disturbed on appeal, absent a showing that
     she abused her discretion.

3.   Parent & child -- child support -- reference to chart mandatory where
     there is current duty -- rebuttable presumption established. -- Reference
     to the child-support chart is mandatory where there is a
     current duty to support, and the chart itself establishes a
     rebuttable presumption of the appropriate amount that can only
     be explained away by express findings stating why the chart
     amount is unjust or inappropriate; likewise, in a case such as
     this where there is no current duty to support due to the
     child's having reached majority, Ark. Code Ann.  9-14-235
     (Supp. 1995) provides that the obligor shall continue to pay
     an amount to be determined by a court based on the application
     of chart guidelines until the child-support arrearage has been
     satisfied.

4.   Parent & child -- child support -- chancellor may adjust amount as
     warranted. -- The chancellor, in her discretion, is not entirely
     precluded from adjusting the amount of child support as deemed
     warranted under the facts of a particular case, and the
     appellate court will not disturb the chancellor's decision to
     do so absent an abuse of discretion.

5.   Parent & child -- child support -- chancellor did not abuse discretion --
     weekly amount affirmed. -- Where the chancellor clearly indicated
     that she was considering the hardship on appellant's other
     children in her determination of the amount of his scheduled
     support payments and did not order appellant to pay the amount
     prescribed by the child-support chart but instead departed
     downward as appellant requested, the appellate court affirmed
     the chancellor's decision regarding the weekly amount of
     support; the mere fact that the chancellor did not reduce the
     payment to the amount appellant requested could not be said to
     amount to an abuse of discretion.


     Appeal from Pulaski Chancery Court; Joyce W. Warren,
Chancellor; affirmed.
     Appellant, pro se.
     Juliane Henderson, for appellee.

     Andree Layton Roaf, Judge.
     Appellant Michael Lovelace was found to be the father of a
child who had reached majority, and was ordered to pay three years
of back child support.  He appeals pro se and challenges both the
amount of the judgment and the weekly payment amount ordered.  We
affirm.
     On July 17, 1996, this case was heard by the chancellor to
determine paternity and establish support for a child who had
reached majority at the time of the hearing.  Lovelace also
represented himself before the trial court.  The DNA test
established a 99.93% probability of paternity and the court, based
on the mother's testimony and the paternity test results, found
Lovelace to be the father of the child.  Lovelace did not contest
paternity. 
     At the hearing, the appellee, Office of Child Support
Enforcement (OCSE), presented the testimony of a representative
who testified as to the back support owed by Lovelace and his
current earnings.  She testified that his average weekly take-home
pay was $348.04 (based upon Employment Security Division records)
and that the arrearages dating back three years prior to the
child's eighteenth birthday totaled $8214.  Again, Lovelace made
no objections to the testimony and asked no questions of the
representative.
     Lovelace presented no evidence of his own. The chancellor
determined that, since the child was no longer a minor, there was
no need to discuss or establish visitation or custody.  The court
then awarded judgment for $8214, without objection by Lovelace. 
However, when the court stated that the weekly payment amount
would be $64, based on Lovelaceþs current earnings and the child
support chart, Lovelace stated, þI canþt pay it.þ  Lovelace argued
that $64 per week was too much and that it would create a hardship
because he had four children at home.  He stated that he could
afford $50 every two weeks.  The attorney for OCSE stated that
they would not be opposed to a downward deviation from the support
chart since the judgment was to reimburse the State.  The court,
noting that Lovelace had stated that he could pay $50 biweekly (or
$25 weekly), said that Lovelace would be required to pay $40
weekly.  She reasoned that $25 per week was the chart minimum and
that amount was indicated when the payor was unemployed.  The
court also ordered Lovelace to reimburse OCSE for the cost of the
paternity testing and to pay the wage assignment fee of $24.  
     On appeal, Lovelace argues that the trial court should be
reversed because: (1) no affidavit of financial means was
introduced for him and his net income was miscalculated; (2) undue
hardships were created on his other dependents due to the trial
court's failure to consider those dependents; and (3) no AFDC
payment history was introduced to prove the back support which
appellant was charged with reimbursing.
     Because Lovelace only mentioned one of his arguments (point
2) below, this court is precluded from addressing the other two
arguments on appeal.  It is well established that this court will
not reverse on an issue not presented to the trial court. 
Arkansas Office of Child Support v. House, 320 Ark. 423, 897 S.W.2d 565 (1995); Hubbard v. Shores Group, Inc., 313 Ark. 498,
855 S.W.2d 924 (1993).  The court will not consider arguments
raised for the first time on appeal or where a ruling from the
trial court has not been obtained.  Mobley v. Harmon, 313 Ark.
361, 854 S.W.2d 348 (1993).        With regard to Lovelaceþs second
point, whether or not the trial court considered the hardship on
his children living at home in establishing the weekly payment,
the applicable standard of review is abuse of discretion.  The
amount of child support lies within the sound discretion of the
chancellor, and her finding will not be disturbed on appeal,
absent a showing that she abused her discretion.  Scroggins v.
Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990); Creson v. Creson,
53 Ark. App. 41, 917 S.W.2d 553 (1996). 
     Reference to the child support chart is mandatory where there
is a current duty to support, and the chart itself establishes a
rebuttable presumption of the appropriate amount which can only be
explained away by express findings stating why the chart amount is
unjust or inappropriate.  See Black v. Black, 306 Ark. 209, 214,
812 S.W.2d 480 (1991).  Likewise, in a case such as this where
there is no current duty to support due to the child's reaching
majority, Ark. Code Ann.  9-14-235 (Supp. 1995) states that:
     [T]he obligor shall continue to pay an amount . . . to be
     determined by a court based on the application of
     guidelines for child support under the family support
     chart, until such time as the child support arrearage or
     judgment has been satisfied.  
The chancellor, in her discretion, is not entirely precluded from
adjusting the amount as deemed warranted under the facts of a
particular case, and this court will not disturb the chancellor's
decision to do so absent an abuse of discretion.  Jones v. Jones,
43 Ark. App. 7, 12, 858 S.W.2d 130 (1993).  
     In the present case, the chancellor clearly indicated that she
was considering the hardship on Lovelace's other children in her
determination of the amount of his scheduled payments.  In
addition, she did not order Lovelace to pay the amount prescribed
by the child support chart, but rather departed downward as
Lovelace requested.  The mere fact that she did not reduce the
payment to the amount he requested cannot be said to amount to an
abuse of discretion.
     Affirmed.
     Robbins, C.J., and Meads, J., agree.