Halter v. Halter

Eva Gail HALTER v. Dennis P.HALTER

CA 97-120                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
               Opinion delivered January 28, 1998


1.   Parent & child -- child support -- amount awarded within
     chancellor's discretion. -- The amount of child support lies
     within the discretion of the chancellor, whose findings will
     not be disturbed on appeal absent an abuse of discretion. 

2.   Parent & child -- income as used in family support chart -- no
     abuse of discretion in chancellor's refusing to include
     inheritance as income. -- Appellant's argument presupposed
     that an inheritance is considered as income for purposes of
     applying the percentage found in the per curiam  In Re: 
     Guidelines for Child Support; however, income in the family
     support chart refers to the definition of income in the
     federal income tax laws, which states that income does not
     include the value of property acquired by gift, bequest,
     devise, or inheritance; because the percentage relied upon by
     appellant applied to weekly or monthly income that exceeds the
     amounts shown on the extended chart, and because an
     inheritance does not fall within those parameters, the
     appellate court found no abuse of discretion in the
     chancellor's refusal to award a lump-sum percentage of the
     inheritance as child support based on that provision of the
     per curiam.

3.   Parent & child -- income to be derived from inheritance could
     have been used in determining amount of child support --
     appellant limited her claim to flat percentage of inheritance.
     -- An inheritance is not irrelevant to the issue of child
     support; any earnings that might have been generated from
     appellee's inheritance could have been considered by the
     chancellor in determining the amount of support because such
     earnings are considered income under the tax code; it was
     appellant's duty to present sufficient evidence, argument, and
     citation of authority to prove her assertion that she was
     entitled to twenty-two percent of the inheritance; by limiting
     her claim to a flat percentage of the inheritance, appellant
     failed to provide sufficient proof of entitlement.

4.   Parent & child -- party seeking reversal of chancellor's order
     bears burden of proof -- appellant failed to meet burden. --
     One seeking the reversal of a chancellor's order has the
     burden of demonstrating error in the chancellor's findings,
     and the appellate court will not reverse such findings unless
     they are clearly against the preponderance of the evidence; in
     light of the wording of the decree, the chancellor's
     interpretation that it did not place any burden on appellee to
     voluntarily seek modification was not clearly erroneous.
     

     Appeal from Miller Chancery Court; Jim Gunter, Chancellor;
affirmed.
     Winonia R. Griffin, for appellant.
     Dowd, Harrelson, Moore & Giles, by: Marshall H. Moore, for
appellee. 

     Judith Rogers, Judge.
     In this appeal, appellant contests two adverse rulings with
respect to claims concerning child support.  She first contends
that the chancellor abused his discretion in failing to award a
percentage of an inheritance that appellee received from his
parents' estates.  As her second issue, she argues that the
chancellor erred in failing to hold appellee responsible for an
arrearage in child support.  We find no error and affirm.
     Appellant, Eva Gail Halter, and appellee, Dennis P. Halter,
were divorced in March of 1988.  In the decree, appellee was
ordered to pay $60 a week in child support on behalf of their two
children.  The decree further provided that "[a]t such time as
[appellee] obtains employment, child support will be adjusted in
accordance with [appellee's] income."  After the decree, appellant
filed several motions seeking an increase in support but did not
pursue them to completion.  As a result, appellee's obligation
remained at $60 a week.  The petition that led to this appeal was
filed in October of 1995.  In it, she requested an increase in
child support and a percentage of a $66,000 inheritance appellee
had received in 1994 upon the death of his parents.  She also asked
that appellee be held in contempt for his failure to increase the
payment of child support commensurate with his increased income as
provided in the decree.  In this regard, she further contended that
appellee's support obligation should be increased retroactively and
that she was entitled to judgment for the arrearage that had
accrued.
     A hearing was held on May 28, 1996.  Afterwards, the
chancellor ordered an immediate increase in child support to $600
a month, but he denied appellant's request for the claimed
arrearage.  The chancellor took the question of appellee's
inheritance under advisement, asking the parties to brief the
issue.  A final order was entered on October 11, 1996, wherein the
court denied appellant's request for a lump-sum percentage of
appellee's inheritance.  This appeal followed.
     Appellant's first assignment of error concerns the denial of
her claim for a lump-sum payment of twenty-two percent of
appellee's inheritance.  It is well settled that the amount of
child support lies within the discretion of the chancellor, and his
findings will not be disturbed on appeal absent an abuse of
discretion.  Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553
(1996).  Thus the question before us is whether the chancellor's
ruling constitutes an abuse of discretion.  
     Appellant's argument is based on the per curiam in effect, In
Re: Guidelines for Child Support, 314 Ark. 644, 863 S.W.2d 291
(1993), wherein it is stated that, when the payor's income exceeds
the amount shown on the extended support chart, the court should
use a figure of 22% of the payor's monthly or weekly income, "as
defined hereinafter," when there are two dependents.  Appellant's
argument presupposes that an inheritance is considered as income
for purposes of applying the percentage.  However, "income" in the
family support chart refers to the definition of income in the
federal income tax laws.  Under federal tax law, income does not
include the value of property acquired by gift, bequest, devise, or
inheritance.  26 U.S.C.S.  102(a) (1997).  Because the percentage
relied upon by appellant applies to weekly or monthly income that
exceeds the amounts shown on the extended chart, and because an
inheritance does not fall within those parameters, we can find no
abuse of discretion in the chancellor's refusal to award a lump-sum
percentage of the inheritance as child support based on that
provision of the per curiam.
     Although we can find no abuse of discretion, we do not mean to
imply that the inheritance was entirely irrelevant to the issue of
child support.  For example, in Munn v. Munn, 315 Ark. 494, 868 S.W.2d 478 (1994), the appellant claimed entitlement to a
percentage of the appellee's workers' compensation settlement. 
Instead, the chancellor applied a hypothetical investment yield to
project an increase in the appellee's monthly income.  He then
applied that amount to the support chart in setting appellee's
monthly support obligation.  The supreme court affirmed, finding no
abuse of discretion.  By analogy here, any earnings that might have
been generated from appellee's inheritance could have been
considered by the chancellor in determining the amount of support,
since such earnings are considered income under the tax code.  26
U.S.C.S.  102(b) (1997).  Yet, appellant limited her claim to a
flat percentage of the inheritance.  It was appellant's duty to
present sufficient evidence, argument, and citation of authority to
prove her assertion that she was entitled to twenty-two percent of
the inheritance.  Munn v. Munn, id.  This she has failed to do.
     Appellant's next argument is that the language of the original
decree providing that "[a]t such time as [appellee] obtains
employment, child support will be adjusted in accordance with
[appellee's] income," placed an affirmative obligation on appellee
to increase the payment of child support.  She argues that the
chancellor erred by not enforcing this provision to retroactively
increase appellee's child-support payments as his income increased
during the intervening years.  We cannot agree.  One seeking the
reversal of a chancellor's order has the burden of demonstrating
error in the chancellor's findings, and we will not reverse such
findings unless they are clearly against the preponderance of the
evidence.  In light of the wording of the decree, we cannot say
that the chancellor's interpretation, that it did not place any
burden on appellee to voluntarily seek modification, is clearly
erroneous.
     Affirmed.
     Bird and Crabtree, JJ., agree.