Thomas Ranel Brady, Jr. v. Laura A. Brady

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

THOMAS RANEL BRADY, JR.,

APPELLANT

V.

LAURA A. BRADY,

APPELLEE

CA01-949

APRIL 3, 2002

APPEAL FROM THE LAFAYETTE COUNTY CHANCERY COURT,

NO. E99-115-3,

HON. PHILIP B. PURIFOY, JUDGE

AFFIRMED

Thomas and Laura Brady were divorced on February 14, 2000. Thomas Brady was ordered to pay $150 a month in child support. On October 19, 2000, after ceasing her employment and returning to school, Laura Brady petitioned for modification of the child support payments. The chancellor found a material change in circumstance had occurred due to an increase in Thomas Brady's pay. The chancellor ordered Thomas to pay prospective child support in the amount of ninety-six dollars per week pursuant to the family support chart. Thomas appeals, contending that the chancellor's decision that there had been a material change in circumstances warranting an increase in child support is clearly erroneous.

In reviewing chancery cases, we consider the evidence de novo, but will not reverse a chancellor's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Tucker v. Tucker, 74 Ark. App. 316, 49 S.W.3d 145 (2001).

A party seeking modification of the child-support obligation has the burden of showing a change in circumstances sufficient to warrant the modification. Weir v. Phillips, 75 Ark. App. 208, 55 S.W.3d 804 (2001). In determining the amount of child support, the chancellor has discretion which will not be disturbed on appeal absent an abuse of discretion. However, reference to the family support chart is mandatory. If the chancellor deviates from the chart, the chancellor must state the basis for doing so. See id.

Arkansas Code Annotated section 9-14-107(a) provides that a material change of circumstance is presented when the gross income of the payor changes by twenty-percent or more or by more than $100 per month. Thomas admitted that at the time of the divorce, he was working at least eighty-four hours every two weeks and that his rate of pay was $18.64 per hour. He stated that his employer had since ceased allowing extensive overtime, but then admitted that he would still be working at least eighty-four hours every two weeks and that his rate of pay had increased to $19.60 per hour.1

Thomas contends that the trial court erred by accepting the gross amount every two weeks as $1,650 whereas the trial court had calculated the income at $1,631.84. The trial court apparently based its calculation of his gross income on the previous rate of pay and the formerly higher amount of hours. When calculated at his current rate of pay and current number of hours, his resulting gross income is $1,646.00, which was apparently rounded to $1,650 as the family support chart is divided into fifty-dollar increments. Thomas contendsthat the difference between these amounts equals only $36.32 per month; thus, the statutory 20% or more than $100 increase is not met. Thomas's argument misconstrues the statutory basis for the 20% or $100 difference, as we look to see whether the payor's gross income has changed 20% or more or $100 or more from the previous calculation of the payor's gross income. The statute applies to a change in income from the previous hearing that set the amount of child support and the present hearing. It does not apply to the difference between the two calculations of the present gross income amount.

The statute further provides for a finding of a material change of circumstances when there is an inconsistency between the existing child support amount and the amount of child support that results from application of the family support chart. Applying the family support chart, the child support payments should be $96 per week. Thomas, at the time of this modification hearing, was paying $37.50 a week pursuant to an agreement with Laura at the time of the divorce. Such inconsistency provides a basis for finding a material change of circumstances. See Ark. Code Ann. § 9-14-107(c).

Furthermore, Laura testified that she had ceased employment and returned to school to better herself. She stated that she lived with her parents and that her only income was a Pell grant for schooling. In determining whether a material change of circumstances has occurred, the chancellor must consider the needs of one party as compared to the ability of the other to pay. Irvin v. Irvin, 47 Ark. App. 48, 883 S.W.2d 862 (1994). There was sufficient evidence of an increase in the needs of Laura in light of her lack of employment in order to seek higher education and the increase in Thomas's rate of pay.

Thomas additionally contends that the chancellor abused his discretion in awarding attorney's fees. Our courts have recognized the inherent power of a court of equity to award attorney's fees in domestic relations proceedings, and whether the chancellor should award fees and the amount thereof are matters within the discretion of the chancery court. Id. Attorney's fees in divorce and support cases are not awarded as a matter of right but rest within the chancellor's discretion, whose decision will not be disturbed unless that discretion is abused. Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991). The chancellor is in a better position to evaluate the services of counsel than an appellate court, and, in the absence of clear abuse, the chancellor's award of an attorney's fee will not be disturbed on appeal. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). In Paulson v. Paulson, 8 Ark. App. 306, 310-11, 652 S.W.2d 46, 49 (1983), this court held:

In determining whether to award fees [the chancellor] must consider the relative financial abilities of the parties. Among the pertinent considerations in determining the amount of attorney's fees are the attorney's judgment, learning, ability, skill, experience, professional standing, the relationship between the parties and the importance of the subject matter of the case, the nature, extent and difficulties of services, the research, anticipation of defenses and means of meeting them and receiving of confidential information and giving of confidential advice before any pleadings are filed or other visual steps are taken. In making these determinations the trial court's own experience and knowledge of the character of such services may be used as a guide.

We hold that the award of attorney's fees was not an abuse of the chancellor's discretion.

Because there was an increase of more than $100 in Thomas's monthly income, an inconsistency between the existing child support amount and the amount provided for underthe family support chart, and Laura's needs had changed as well as Thomas's ability to pay, the finding that there was a material change in circumstances allowing for modification of the child support amount was not clearly erroneous. Therefore, we affirm.

Affirmed.

Vaught, J., agrees.

Roaf, J., concurs.

1 $18.94(84 hours) = $1,590.96. $19.60(84 hours) = $1,646.40.

$1,646.40 - 1590.96 = 55.44 every two weeks.

55.44(2 pay periods) = $110.88.