Lawrence Homer Spurlock v. Cinda Vinette Spurlock

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ca00-199

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

DIVISION IV

LAWRENCE HOMER SPURLOCK,

APPELLANT

V.

CINDA VINETTE SPURLOCK,

APPELLEE

CA00-199

OCTOBER 25, 2000

APPEAL FROM THE SHARP COUNTY CHANCERY COURT,

NO. E94-4,

HON. THOMAS L. HILBURN,

JUDGE

AFFIRMED ON DIRECT APPEAL AND ON CROSS-APPEAL

This is an appeal from the modification of a divorce decree. Appellant/cross-appellee Lawrence Homer Spurlock and appellee/cross-appellant Cinda Vinette Spurlock were divorced pursuant to a decree of divorce entered May 25, 1994. They have one minor son. The couple entered into a property-settlement agreement in which Lawrence agreed to pay $52 per week in child support, until such time as he becomes employed, at which time the child support would be "adjusted in accordance with the husband's income and the child support chart." At the time of the decree, Lawrence was unemployed. Cinda agreed to pay the premiums on the minor child's health insurance, and Lawrence agreed to pay all of the medical bills not covered by the child's health-insurance carrier. Lawrence has since found gainful employment, remarried, and has infant twins. After Lawrence failed to pay his share of the minor child's medical bills, Cinda filed a petition for contempt and, citing the fact that

Lawrence was now employed, asked the court to increase the amount of child support that Lawrence is required to pay.

At a hearing on September 20, 1999, Lawrence testified that since the divorce he has become employed and that his net income is $37,343.04 and his monthly net pay is $3,111.92, which includes overtime, which is not always guaranteed. Lawrence admitted that he owed Cinda for medical expenses, and that Cinda sent him a letter that stated he owed $800 in medical bills. Then, Lawrence and Cinda had a phone conversation in which she asserted he owed $1,500. He stated that he had agreed to pay her $1,500, that he did not mind paying part of the medical expenses, but contended that she should also pay part of them. He stated that although he agreed to pay the medical expenses, he had seen very few of the actual bills; that Cinda had sent him copies of some receipts, but no medical bills.

He also testified that he would take care of all insurance and medical costs, and in return, his child-support payment should not be increased because he has three children. He said on his 1996 tax return, he listed his three children and his wife's son as dependents. He stated that he incurred a large debt when his twins were born because they were premature and were hospitalized for more than two months.

Cinda testified that, so far in 1999, she has a net income of $11,538.68 and that she pays $72.57 for their child's health insurance every two weeks. She also stated that she has been paying the medical bills that insurance does not cover. She admitted that she had sent Lawrence a letter stating that he owed $800 for medical bills, but she stated that after the letter was sent, she found more bills that she had paid. She stated that she and Lawrence hadagreed that he owed $1,500. She testified that she would rather pay for their son's health insurance and have Lawrence repay her in order to make sure their son would be covered by health insurance. She stated that Lawrence had never known exactly how much to pay her for the medical bills, except what she had told him.

At the conclusion of the hearing, the chancellor stated:

After looking at the decree, she was to take care of the medical insurance, and he was to take care of the medical expenses not covered by insurance. He will be ordered to do that upon presentation of those medical bills.

I am taking into consideration on his wages and his additional children that's [sic] in his household that he's responsible for in setting child support. Based on that and giving him some adjustment for some of his overtime, the child support for this child should be sixty-six dollars a week.

The court entered an order modifying the decree on October 1, 1999. The order directed Lawrence to reimburse Cinda for their child's medical-insurance premiums at the rate of $72.57 every two weeks and further provided that the parties shall each pay one-half of the child's medical expenses not covered by insurance.

The order also increased the amount of child support to be paid. Instead of the amount of $118, as the court stated was set forth in Family Support Chart pursuant to Administrative Order No. 10, he set the amount at $66. In setting the amount, he deviated from the chart after taking into account that Lawrence also has twin children.

In paragraph six of the order that is the subject of this appeal, the judge wrote:

That evidence presented at the hearing shows that, in addition to other changes in circumstances since the date of entry of the decree, defendant had net income in 1998 in the amount of $37,343.04. Although the child support chart reflects that defendant should pay the sum of $118 per week in childsupport, the Court finds that because of defendant's obligations for twin children born during the past seven (7) months, that the child support obligation should be modified from $52.00 per week to $66.00 per week commencing September 20, 1999.

Also, instead of finding Lawrence in contempt of court for not paying medical bills allegedly owed by him, the court ordered him to pay all medical bills of the child through the date of the hearing within thirty days after presentation of the copies of the bills to Lawrence's attorney.

Lawrence filed a motion for a new trial, contending that the court erred by ordering him to pay for the child's health insurance because Cinda had not asked for such relief in her petition for contempt and no evidence was taken on the issue at the hearing. He stated that had evidence been presented at the hearing, he could have informed the court that he could provide health insurance for his son through his present employer at no cost. The court denied Lawrence's motion, and Lawrence filed this appeal. Cinda filed a cross-appeal in which she argues that the court erred by not increasing Lawrence's child-support payment commensurate with the Family Support Chart, contained in Administrative Order No. 10: Arkansas Child Support Guidelines, 329 Ark. 668 (1997). Because the chancellor's decision was not clearly erroneous or against the preponderance of the evidence, we affirm.

We review chancery cases de novo on the record, and we do not reverse unless the chancellor's findings are clearly against the preponderance of the evidence or clearly erroneous. Heflin v. Bell, 52 Ark. App. 201, 916 S.W.2d 769 (1996).

For Lawrence's first point on appeal, he argues that the court erred in directing himto pay for their son's insurance premiums when there was no pleading placing medical insurance in issue and there was no substantive testimony taken on the issue.

During the hearing, Cinda's attorney asked Lawrence if he knew how much Cinda was paying in health insurance, to which Lawrence replied that he would "be glad to take the cost of the insurance. ... As far as me taking him on insurance, and then her paying the cost, I don't care if she pays anything." Cinda's attorney then asked if Lawrence meant that he would pay for insurance and medical costs also, to which Lawrence replied, "I will. Sure."

He states that because Cinda did not set forth any facts in her petition for contempt to indicate her demand for Lawrence's assumption of the insurance premiums, he was not aware that medical insurance was an issue. He concedes that he did not object to the testimony, but states that his objection would have been pointless in that the issue of the insurance premiums was probably relevant to the issue of child support. He argues, "If litigants cannot depend on pleadings to frame the issues to be tried in court, they have no way of being notified of the issues."

Arkansas Rule of Civil Procedure 15(b) reads:

Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion. The court may grant acontinuance to enable the objecting party to meet such evidence.

In the case at bar, there was no need for Cinda to amend her pleadings, as Lawrence was the one who raised the issue. Cinda's attorney asked if Lawrence knew how much Cinda was paying in insurance premiums. It was Lawrence who offered to pay. His testimony reflects that he made the offer to pay the health-insurance premium in return for the court not raising the amount he pays in child support each week. He also concedes in his argument to this court that the issue of who pays for the insurance premiums is relevant to the issue of the amount of child support. Lawrence cannot now complain that he was unaware that the issue of health-insurance premiums was not before the court, as he was the one who raised it. Cinda later testified that she would rather continue to pay for their son's health insurance through her employment and allow Lawrence to reimburse her.

For Lawrence's second argument on appeal, he argues that the court erred in not granting him a new trial so that he could present evidence that he could obtain health insurance for their son through his employer at no additional cost. Arkansas Rule of Civil Procedure 59 allows a court to grant a new trial if the decision is clearly contrary to the preponderance of the evidence or is contrary to law. Absent an abuse of discretion by the chancellor in failing to grant a new trial, this court will not reverse. Lawson v. Lewis, 276 Ark. 7, 631 S.W.2d 611 (1982). The court did not err in denying Lawrence's motion for a new trial because the evidence that he could obtain health insurance at no cost could have been presented to the trial court. It was Lawrence who, through no prompting by Cinda's counsel, opened the door to the issue of health-insurance premiums by testifying that hewould pay the premiums.

Finally, Cinda brings this cross-appeal, arguing that the court erred in using a "local rule" to modify the family-support chart guidelines set forth in Administrative Order No. 10 by dividing the weekly chart amount by the number of children that Lawrence is obligated to support. Cinda's attorney refers in his brief to what was apparently an off-the-record telephone message from the judge explaining how he computed the amount of child support. However, there is no indication in the record that the chancellor applied a "local rule" in arriving at the amount of child support to be ordered. Furthermore, the order that the court entered does not indicate that the court used an improper method to arrive at the amount of support. Rather, the order sets forth the reasons for the court's variance from the presumptive amount of support set forth in the child-support chart.

The amount of child support a chancery court awards lies within the sound discretion of the chancellor and will not be disturbed on appeal absent an abuse of discretion. Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999); Woodson v. Johnson, 63 Ark. App. 192, 975 S.W.2d 880 (1998); Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991). Reference to the family support chart is mandatory. Schumacher v. Schumacher, supra; Woodson v. Johnson, supra. A chancellor is not prohibited from considering other matters in addition to the child-support chart in setting the amount of support. Department of Human Serv. v. Forte, 46 Ark. App. 115, 877 S.W.2d 949 (1994). The child-support chart and the criteria used for deviating from it are not conclusive, and there may be other matters in addition to the child-support chart that have a strong bearingupon determining the amount of support. Id. A court may recognize that a payor's spouse's children by his present marriage may be considered by a chancellor in determining financial ability to support another child. Id.

Administrative Order No. 10: Arkansas Child Support Guidelines, 329 Ark. 668, states:

It is a rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the Family Support Chart is the amount of child support to be awarded in any judicial proceeding for divorce, separation, paternity, or child support. The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support.

It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a specific written finding within the Order that the amount so calculated, after consideration of all relevant factors, including the best interests of the child, is unjust or inappropriate. Findings that rebut the guidelines shall state the payor's income, recite the amount of support required under the guidelines, recite whether or not the Court deviated from the Family Support Chart and include a justification of why the order varies from the guidelines as may be permitted under SECTION V. hereinafter.

Section V of Administrative Order No. 10 states relevant factors to be considered in determining the appropriate amount of child support, and includes medical expenses. In addition, the section also allows "additional factors [that] may warrant adjustments." Such factors include the procurement and/or maintenance of health insurance for the children's benefit. Also, it states, a consideration should be "[T]he support required and given by a payor for dependent children even in the absence of a court order."

In Waldon v. Waldon, supra, this court stated that although a court may consider thepayor spouse's other dependent children in setting child support, the chart should be applied to just the children concerned in the case. The result of applying the chart based upon more dependents than are in issue in the case is that "the amount of support for the one child [becomes] diluted, as the chart is structured so that the amount of support per child decreases in proportion to the number of added dependents." Waldon v. Waldon, 34 Ark. App. at 123, 806 S.W.2d at 390. However, in Waldon, we upheld the chancellor's determination of child support because he explained "that he was not only taking into account the appellee's other children, but also appellee's considerable obligations relative to the medical expenses of this child," which was in addition to the payment of the support. Id. at 124, 806 S.W.2d at 391.

The chancellor made a finding that Lawrence's income for 1998 was $37,343.04 and that based upon that figure, Lawrence should pay $118 per week. The court then deviated from the chart citing Lawrence's obligations to provide for and pay for large medical expenses of his infant twin children. Therefore, he increased Lawrence's current support payment of $52 per week to $66 per week. In addition, the record reflects that the chancellor considered the fact that he was requiring Lawrence to pay for the minor child's health-insurance premium of $72.57 every two weeks. We cannot say that the court abused its discretion in its variance from the child-support chart.

Affirmed.

Robbins, C.J., and Neal, J., agree.

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