Lori Osborne v. Lloyd Benefield

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION III

LORI OSBORNE,

APPELLANT

V.

LLOYD BENEFIELD,

APPELLEE

CA01-128

November 14, 2001

APPEAL FROM WASHINGTON COUNTY CHANCERY COURT,

NO. E90-1640,

HON. JOHN LINEBERGER,

JUDGE

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

Lori Osborne appeals from the trial court's order denying her motion for contempt and for an increase in child support. On appeal, Osborne argues that the trial court erred in 1) denying her request for past-due child support; 2) failing to grant an increase in regular child support; and 3) relieving the appellee, Lloyd Benefield, from the obligation to provide life insurance on himself with the child as beneficiary as ordered in the parties' divorce decree. We agree that the trial court erred in failing to award an increase in support and in relieving Benefield from the obligation to provide the policy of life insurance, and reverse and remand.

Osborne and Benefield were divorced in 1990; they had one child, born in 1988. The divorce decree provided,  inter alia, that Benefield was to pay $200 per month in child support, and maintain life insurance on himself of no less than $10,000 with the parties'

minor child as sole beneficiary. In 1994, after Osborne moved for contempt and modification, the parties entered into an agreed order increasing Benefield's support obligation to $250 per month "based on the family support chart" and on an increase in Benefield's income in excess of ten percent.

In July 2000, Osborne filed a second motion for contempt and to modify decree in which she sought, among other relief not relevant to this appeal, an increase in child support. She also alleged that Benefield was in contempt for failure to acquire life insurance on behalf of the child as ordered in the divorce decree.

The pleadings, testimony, and evidence from the September 2000 hearing and the trial court's order, as abstracted, reflects that Benefield had become disabled after the parties' divorce; that all child-support payments since the 1994 order consisted of $250 per month in auxiliary social security benefits; that Benefield had not personally made any support payments; that his net income according to both his testimony and his affidavit of financial means was $1,563 per month, including social security, Arkansas Teacher Retirement, U.S. Able Life Insurance benefits, and Hanna Gas benefits; that Benefield had failed to list or include rental income he received from two mobile homes, totaling $385.00; and that Benefield had failed to provide the life insurance as ordered in the decree.

The trial court concluded that because Benefield had testified that he was working as a teacher and earning about $25,600 per year at the time of the divorce, there had been no showing of change in circumstances justifying an increase in support, in that Benefield's current income, even including the mobile home rent, was less than that amount. The trialcourt incorrectly referred to Benefield's social security income as "SSI benefits," and further opined that a person receiving such benefits would be unlikely to obtain life insurance at a reasonable cost, and that he would "have to reduce child support by the premiums" even if Benefield could procure it. The order entered by the trial court recited that there was no substantial change in Benefield's income to warrant an adjustment in child support, that the auxiliary social security benefits constituted child support payments that satisfied Benefield's obligation to pay "past, present, and future child support," that Benefield's support was not in arrears, and that, although Benefield had failed to secure life insurance as previously ordered, "forcing [Benefield] to obtain said life insurance would be unduly burdensome. . . and [Benefield] is hereby relieved of that obligation." Osborne filed a motion for new trial in which she took issue with the trial court's decisions regarding the increase in support and the life insurance, and, for the first time, asked for judgment for past due support. The trial court failed to rule on the motion, and it was deemed denied after thirty days.

On appeal, Osborne first argues that the trial court was without authority to deny her prayer for past due support. There are several problems with this argument. Osborne neither alleged that Benefield was in arrears nor sought past due support in her motion for contempt. There is no indication in the record before us that the issue was ever raised at the hearing. Nevertheless, the order entered by the trial court, and signed by both counsel, stated that Benefield's "past, present, and future child support" was satisfied by the $250 per month auxiliary Social Security benefits. Osborne raised the issue to the trial court by way of her post-trial motion, in which she asked for an unspecified amount of back support and allegedthat there was "no basis in law or equity" for the trial court to cut off past due support. Under these circumstances, we deem it appropriate to address the issue.

The trial court found that Benefield was not in arrears, based on the child's receipt of social security auxiliary benefits in the amount of support ordered. In Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962), the court stated that a parent should be credited with the full amount of social security payments made to the child and is not obligated to pay any additional amount. The evidence shows that Benefield only stopped paying child support in 1994 when the child began receiving the social security benefits in the same amount.

Osborne also contends that the trial court retroactively modified the support order by crediting the auxiliary benefits toward Benefield's child support obligation when he had stopped paying as ordered. However, the child received the amount of support as ordered by the court. Moreover, the Family Support Chart authorizes the court to consider the amount of the separate awards made to social security disability recipients' children. In Re Admin. Order No. 10: Guidelines for Child Support, 331 Ark. Appx. 581, ___ S.W.2d ___ (1998). We cannot say that the trial court clearly erred in allowing the social security benefits to constitute past child support payments.

Osborne next argues that the trial court erred in refusing to grant a modification in Benefield's regular support. She contends that there has been a substantial increase in Benefield's income since the 1994 support increase and that reference to the family support chart is mandatory. We agree with both contentions.

The amount of child support a chancery court awards lies within the sound discretionof the court and will not be disturbed on appeal absent an abuse of discretion. Davis v. Ofc. Of Child Sup. Enfc'mnt, 68 Ark. App. 88, 5 S.W.3d 58 (1999); Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999). In setting the amount of family support, the chancellor must refer to the child-support chart. Id. Reference to the family-support chart is mandatory. Woodson v. Johnson, 63 Ark. App. 192, 975 S.W.2d 880 (1998); Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998); Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998). See also Ark. Code Ann. § 9-14-106 (Repl. 1998). The family-support chart creates a rebuttable presumption that the amount of child support set forth therein is the correct amount of child support to be awarded. That amount can be disregarded only if the chancery court makes express written findings or specific findings on the record that application of the support chart is unjust or inappropriate. Woodson v. Johnson, supra; Anderson v. Anderson, supra. Relevant factors to be considered by the court in determining whether to deviate from the amount of child support set by the family-support chart are set forth in In Re Administrative Order No. 10: Arkansas Child Support Guidelines, supra; Schumacher v. Schumacher, supra.

A change in circumstances is required before a child-support obligation can be modified, and it is the burden of the party seeking the modification to show that there has indeed been a change in circumstances. Woodson v. Johnson, supra; Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993). A chancellor's decision regarding whether there are sufficient changed circumstances to warrant a modification in child support is a factual finding, and that determination will not be reversed unless clearly erroneous. Id. In addition,Arkansas Code Annotated section 9-14-104 (Repl. 1998) provides:

A change in gross income of the payor in an amount equal to or more than twenty percent (20%) or more than one hundred dollars ($100) per month shall constitute a material change of circumstances sufficient to petition the court for review and adjustment of the child support obligation amount according to the family support chart after appropriate deductions.

. . . .

(c) An inconsistency between the existent child support award and the amount of child support that results from application of the family support chart shall constitute a material change of circumstances sufficient to petition the court for review and adjustment of the child support obligated amount according to the family support chart, after appropriate deductions, unless:

The inconsistency does not meet a reasonable quantitative standard established by the State, in accordance with subdivision (a)(1) of this section; or

The inconsistency is due to the fact that the amount of the current child support award resulted from a rebuttal of the guideline amount and there has not been a change in circumstances that resulted in the rebuttal of the guideline amount.

Here, the order entered by the trial court contained a finding that Benefield was ordered to pay $250.00 per month in April 1994, "which was based on the family support chart with take-home pay of $1,040.00 per month." This is contrary to the trial court's determination that there had been no change in circumstances based on Benefield's vague testimony about his gross income from teaching at the time of the parties' 1990 divorce. The family-support chart in effect in 1994 reflects that support of $250.00 per month for one child would have been based on an income of $1,170.00 per month. Even if Benefield's rental income is excluded, his present net income of $1,543.00 per month, from which heis paying no child support himself because of the auxiliary social-security payments the child receives, reflects a monthly support payment of approximately $308.00 per month pursuant to the current support chart. Moreover, $1,543.00 is a far greater increase over Benefield's 1994 income than either the twenty-percent or $100.00-per-month increase sufficient to review and adjust support provided by Ark. Code Ann. § 9-14-107(a) (Repl. 1998).

Although the trial court's remarks suggest that Benefield's disability may have been a factor in denying the increase, there is simply no evidence in the record before us concerning the nature of Benefield's disability, nor is there evidence that the trial court referred to the support chart much less any specific written findings as to why the application of the chart would be unjust or inappropriate in this instance. Consequently, we must reverse the trial court on this point.

Osborne finally argues that the trial court erred in relieving Benefield of the obligation to provide life insurance on himself for the benefit of the minor child. We agree. The trial court apparently concluded that Benefield would encounter difficulty in obtaining insurance because of his disability. However, we note that Benefield did not ask for relief from the insurance obligation, and is a retired teacher, receiving in excess of $2,000.00 per month income if his rental income is included, from which he currently pays no support to the parties' child. The record before us contains no evidence in Benefield's favor as to whether he had life insurance butfailed to list the child as beneficiary, had tried unsuccessfully to obtain it, or even the nature of his disability. However, it is clear that Benefield was ordered to provide it, and he failed to demonstrate that he had done so or toexplain such failure. We conclude that the trial court abused its discretion in relieving Benefield of this obligation in the absence of such evidence.

In conclusion, upon de novo review of a fully developed record, we may enter the order that the chancellor should have entered, or we may remand if we think justice will be better served. Reaves v. Reaves, 63 Ark. App. 187, 975 S.W.2d 882 (1998). In the instant case, we are reluctant to set the amount of the child support to be paid by Benefield because it does not appear that the record has been sufficiently developed with regard to any factors that might justify a departure from the presumptive amount of child support pursuant to the Family Support Chart or with regard to the life insurance issue. Therefore, we think that the better course in this instance is to remand for the chancellor to redetermine the amount of Benefield's income and set support in a manner consistent with this opinion. This will allow the parties an opportunity to present evidence as to the existence of factors that might justify a departure from the chart amount of child support, and, if appropriate, to permit the chancellor to make the written findings required by Administrative Order Number 10. We likewise remand the issue of life insurance so that the trial court may resolve this issue along with the establishment of future support.

Reversed and remanded.

Robbins and Baker, JJ., agree.