Michael Eugene Strain v. Elizabeth Diane Strain

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION I

MICHAEL EUGENE STRAIN

APPELLANT

V.

ELIZABETH DIANE STRAIN

APPELLEE

CA 00-849

May 23, 2001

APPEAL FROM THE FAULKNER

COUNTY CHANCERY COURT

[E90-516]

HONORABLE KAREN R.

BAKER, CHANCELLOR

REVERSED AND REMANDED

Michael and Diane Strain were divorced on August 15, 1990. Pursuant to a property settlement agreement entered into on August 8, 1990, Michael agreed to pay $300 per month in child support, $250 in cash, and a fifty-dollar credit toward a $6,000 debt owed by Diane to Michael. Michael also agreed to provide Diane with a copy of his annual tax return "so that his child support obligation may be adjusted in accordance with his income level and with the child support chart in use by the Chancery Court of Faulkner County, Arkansas." On June 13, 1997, Diane filed a petition for contempt and to increase child support. In it, she alleged that Michael had failed to provide her a copy of his annual tax return in order for his child support to be adjusted; that he had received eight pay raises since the entry of the decree; that Michael should be liable for a child-support arrearage of $8,834.16 due to the fact that he had failed to provide proof of earnings through annual tax returns and therefore child support had not been increased commensurate with his increased earnings; and that Michael's child support should be increased due to the increase in his earnings. In his answer, Michael denied that he should be responsible for any increase in child support prior to Diane's filing of her petition to modify the amount of support.

At the October 28, 1998, hearing on the issue of child support, Diane testified that she had asked Michael to increase his child support, but there were always reasons why he could not do so. One reason Diane said she was given was that Michael was paying a large amount in medical insurance on Mark, the parties' child, through his work. Michael wrote her a letter in September 1995 alleging that he was paying $142.61 per month for Mark's insurance. She said that she was told by her previous attorney that the language utilized in the property settlement agreement was an automatic escalator clause that would automatically increase the amount of support, and she believed what her attorney had told her. Diane testified that she had retained Kim Wiedower to help her get an increase in child support without going to court, but that effort was unsuccessful; it was after that time that she filed her petition for contempt and to increase support. At the hearing, Diane presented documentation from Michael's employer regarding the raises he had received since the divorce decree was entered in 1990. She testified that although Michael had provided her with several W-2 forms since the divorce, he had not provided them each year; however, she did not know which years he had failed to provide.

Kim Wiedower testified that she was a friend of both parties, and that she agreed to see if she could help Diane procure a voluntary increase in child support from Michael. She met with Michael, explained that she was representing Diane, and they discussed several issues, although nothing was agreed upon at that time. After that meeting, Diane came to believe that the amount of insurance Michael said he was paying for Mark was not accurate; Wiedower contacted Michael, and then advised Diane that court intervention would be necessary because Michael was upset that the issue had not been resolved. Wiedower testified that, in her opinion, while one must file a petition to modify the divorce decree, this property settlement was structured so that child support could be automatically raised or lowered without having to go back to court.

Michael Strain testified about the pay raises and decreases he had received since the decree was entered in 1990. He testified that he had given Diane a copy of every W-2 form he had received since the divorce, and that he had only provided the W-2 form because that was all she had requested. He said that since the end of May 1997, he had been paying an additional eighty dollars per month for Mark's car insurance. He attempted to explain his employer's complicated computations of payments and credits for health insurance, and he acknowledged that he was probably mistaken in the figures he supplied to Diane in 1995 concerning insurance, but he denied that he was trying to defraud her. He stated that he recognized his salary was more now than it was in 1998, and he fully expected an increase in child support; the increase had never been objectionable, just the amount of the increase. In her ruling, the chancellor found that Arkansas Code Annotated section 9-14-234(Repl. 1998) prohibited the modification of child support orders that retroactively affect the time period before the petition for modification was filed, and that a court order for support remains in force until modified by a subsequent decree. She also found, citing Beavers v. Vaughn, 41 Ark. App. 96, 849 S.W.2d 6 (1993), that absent a specific finding of fraud in procuring an existing support decree, it is an abuse of discretion to impose a retroactive modification of a support order beyond the filing date of a petition to modify. However, she further determined that there was no evidence that Michael had procured the existing support order by fraud. Nevertheless, the chancellor ordered that because Michael had misrepresented his insurance costs to Diane in September 1995, the increase in child support would be retroactive to September 15, 1995, even though Diane did not file her petition to increase child support until June 13, 1997, some twenty-one months later. It is from this order that Michael appeals, arguing that the amount of the child-support increase can only be made retroactive to June 13, 1997. We agree, and we reverse and remand.

The appellate courts review chancery cases de novo and will not reverse a finding of fact by the chancery court unless it is clearly erroneous. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. O'Fallon v. O'Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000). However, we do not defer to a chancery court's conclusion on a question of law; if the chancery court erroneously applied the law and the appellant suffered prejudice as a result,we will reverse the chancery court's erroneous ruling on the legal issue. Oliver v. Oliver, 70 Ark. App. 403, 19 S.W.3d 630 (2000).

We find that the chancellor erred as a matter of law in this case in making the increase in child support retroactive to September 15, 1995, when Diane did not file a petition to increase child support until June 13, 1997. Arkansas Code Annotated section 9-14-234(b) (Repl. 1998) provides, in pertinent part:

Any decree, judgment, or order which contains a provision for the payment of money for the support and care of any child or children through the registry of the court . . . shall be final judgment . . . until the time either party moves through proper motion filed with the court and served on the other party to set aside, alter, or modify the decree, judgment, or order.

See also Yell v. Yell, 56 Ark. App. 176, 939 S.W.2d 860 (1997); Laroe v. Laroe, 48 Ark. App. 192, 893 S.W.2d 344 (1995). A support order by a court of competent jurisdiction remains in force until modified by a subsequent decree. Yell v. Yell, supra.

Based upon statutory and case law, the chancellor clearly erred in ordering that the increase in child support be retroactive to September 15, 1995, when Diane did not file a petition to increase the support until June 13, 1997. This case is hereby reversed and remanded for entry of an order making the increase in child support effective as of June 13, 1997.

Reversed and remanded.

Hart and Crabtree, JJ., agree.