James Bart Brady v. Susan Elizabeth Brady Hall

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

JAMES BART BRADY

APPELLANT

V.

SUSAN ELIZABETH BRADY HALL

APPELLEE

CA02-889

April 23, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

EDV1998-000681

HON. ALICE S. GRAY, JUDGE

AFFIRMED

Appellant James Bart Brady and appellee Susan Brady Hall were divorced on October 18, 1999. They have one daughter, who was born on December 3, 1995. Appellant filed a motion to modify the divorce decree on October 12, 2001, seeking a reduction in his child support obligation of $1150 per month. Appellee filed her response to the motion on October 22, 2001. A hearing was held on April 4, 2002, and on April 12, 2002, the trial court entered an order denying appellant's motion. The trial court also ordered appellant to make child support payments through a bank draft consistent with the terms of the original divorce decree. Additionally, the trial court stated that any future motions to reduce support would be subject to res judicata prior to the April 4, 2002 hearing, and that appellant would have to show a change in circumstances occurring after that date. From that order appellant raises four points on appeal: (1) pursuant to the child support guidelines set forth in Administrative Order No. 10, he is entitled to modification of his obligation to pay childsupport based on an involuntary loss of job and income; (2) he should not be required to pay support through bank draft; (3) he should not be required to show a change in circumstances occurring after April 4, 2002, for any future motions to reduce support; (4) the denial of appellant's motion to modify support was reversible error. We affirm.

Appellant's first and fourth points deal primarily with the same issue and will be addressed together. Decisions in equity cases are reviewed de novo, and findings of fact will not be reversed unless such findings are clearly erroneous. Alfano v. Alfano, 77 Ark. App. 62, 72 S.W.3d 104 (2002). In reviewing the trial court's findings, due deference is given to the trial court's superior position to determine witness credibility and the weight to be accorded to witness testimony. Id.

Generally, when the amount of child support is at issue, the trial court will not be reversed unless there is an abuse of discretion. Id. Additionally, the trial court's decision regarding the sufficiency of a change in circumstances to warrant a modification in child support is a factual finding, and the trial court's determination on that issue will not be reversed unless clearly erroneous. Woodson v. Johnson, 63 Ark. App. 192, 975 S.W.2d 880 (1998).

There is a presumption that the trial judge correctly determined the proper amount of child support in the original decree. Alfano, supra. When the amount of support has been previously set in a decree, the trial court must find a change in circumstances before again applying the family support chart and Ark. Code Ann. § 9-12-312 (Repl. 2002). Id. The party seeking the modification in child support has the burden of showing that there has been a change in circumstances. Woodson, supra.

Appellant had the burden of proving a change in circumstances sufficient to warrant a modification of child support payment. He is a self-employed doctor of optometry. He voluntarily left his position as an optometrist at Wal-Mart in December 2000 to take a similar position withoptometrist Dr. Penny Fleshour. At trial, appellant stated that his overall take-home pay was not detrimentally affected by the change in employment. Appellant then testified that he was involuntarily terminated by Dr. Fleshour on or about October 2001 due to a financial disagreement, but provided no other supporting evidence. The trial judge reviewed the evidence presented, including appellant's own testimony and affidavit of financial means, and the testimony of his current employer for whom he worked two days a week. Although appellant claimed that his income had been reduced by approximately $100,000, he failed to submit documentary evidence to substantiate his current level of income.

"[A] statute or per curiam order of the Arkansas Supreme Court that is in effect at the time of the hearing on the request for modification of child support is the applicable law pertaining to the modification." Moreland v. Hortman, 72 Ark. App. 363, 39 S.W.3d 23 (2001). Thus, we apply the version of ··²SDU_17²····²SDU_17²··Administrative Order No. 10 which became effective on February 22, 2002. See In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. ____ (January 31, 2002). It contains the following provision: "If self-employed, please attach copies of your past two years' state and federal income tax returns and a list of all disbursements made to you during the current calendar year." Id. While appellant completed the affidavit of financial means, he failed to attach the previous two years' tax returns and quarterly reports for the current year. In fact, the only reason the trial judge was able to consider the information on appellant's 1999 and 2000 tax returns was because appellee introduced them. As of April 4, 2002, the date of the hearing, appellant had not filed his 2001 tax return, and provided neither documentation as to that year's income, nor his income for the first quarter of 2002. The only evidence appellant presented with respect to his current level of income was the testimony of one of his current employers for whom he worked only two days a week. Although appellant testified that he also worked for at least twoother doctors, he failed to have either of the other employers testify or produce evidence of income earned from those sources.

Section III of the applicable Administrative Order No. 10 deals with the calculation of support. Regarding the considerations related to self-employed payors like appellant, the provision states:

For self-employed payors, support shall be calculated based on the last two years' federal and state income tax returns and the quarterly estimates for the current year . . . Also, the court shall consider the amount the payor is capable of earning or a net worth approach based on property, lifestyle, etc.

In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, supra.

Appellee states that there is ample evidence that appellant's lifestyle was not consistent with the dramatic change in financial circumstances he alleged, specifically, a reduction in weekly take-home pay to $705 per week constituting an annual reduction of approximately $100,000. However, in January 2002, he deposited $6875 into his checking account. In April 2001, he purchased a home for $102,000. At the time of the hearing, his monthly mortgage payment was $781, and he testified that he had not fallen behind in the payments. At the time he purchased the home in 2001, appellant had $31,561 in his checking account at Bank of America, $1400 in a checking account at Community Bank, and $40,000 in mutual funds. He testified that he drives a 2000 Dodge Durango and owes very little on his credit cards. Appellant also testified that he had taken trips to Fayetteville, Dallas, Houston, Baltimore, and Disney World during the months preceding the April 4, 2002 hearing. Appellee maintains that this evidence, along with appellant's maintenance of an athletic club membership and the purchase of a tanning bed package during the period he claimed to earn $705 per week, show that his lifestyle was not consistent with his claimed change in circumstances.

Appellant argues that the trial court should have taken into consideration the fact that he involuntarily lost his job with Dr. Fleshour when deciding whether to modify his child support obligation, and offers case law from other jurisdictions to support that approach. However, as appellee correctly points out, appellant failed to offer testimony beyond his own, or any other evidence, to support his claim that he was involuntarily terminated from that position. The trial court was in a superior position to determine the weight and credibility of appellant's testimony. Aside from the testimony of his employer for whom he then worked two days a week, his testimony was all the trial court had to draw upon in making its determination.

Appellant also contends that the trial court should not have considered income beyond his last year's federal and state income tax returns when making its decision. Section III of the applicable version of Administrative Order No. 10 specifically states that for self-employed payors, support shall be calculated based on the last two years' federal and state income tax returns and the quarterly estimates for the current year. See In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, supra. Accordingly, appellant's argument that Pannell v. Pannell, 64 Ark. App. 262, 981 S.W.2d 531 (1998) should govern is misplaced. The hearing in question was held more than a month after the new version of Administrative Order No. 10 went into effect. The trial court did not abuse its discretion by denying appellant's motion to modify his support obligation.

With regard to appellant's second point, this court will not consider issues raised for the first time on appeal. See Napier v. State, 74 Ark. App. 272, 46 S.W.3d 565 (2001). Appellant was required to pay child support by automatic bank draft from his account into the registry of the court in the original divorce decree entered on October 18, 1999. He did not appeal that order, and is precluded from raising the issue now.

Even if this issue had been preserved, the trial court did not abuse its discretion by ordering appellant to pay child support through automatic bank draft. A trial court, in its discretion, may determine that it would be in the best interest of the parties to direct payments of child support by means other than direct payments through the registry of the court. See Ark. Code Ann. § 9-12-312(d) (Repl. 2002). During the initial divorce in 1999, the trial court determined that it was best to require appellant to pay child support through an automatic bank draft. Appellee contends that this was not only because appellant was self-employed and not subject to an order of wage assignment, but also because he had a longstanding history of thwarting the trial court's orders.

Appellant contends that the requirement of making payments through automatic bank draft subjected him to the additional costs and expense associated with maintaining a separate account, as well as charges in the instances where there were insufficient funds to cover the draft. Based upon our review of the relevant orders, the draft could have been set up to be made from any of appellant's existing accounts. Additionally, the trial judge specifically stated that she was available for conference calls in case of emergencies, which appellant could have utilized to obtain authorization for an alternative payment if he had insufficient funds to cover the draft during a specific period.

While appellant maintains that he is capable of sending his payments to the child support clearinghouse, appellee recites his less than stellar track record for making payments. She refers to certain contempt proceedings that occurred subsequent to the April 4, 2002 hearing,1 and to evidencepresented at the April 4, 2002 hearing related to appellant missing and delaying payments, hiding money, and unilaterally adjusting the amount of support paid to eighteen percent of whatever income he claimed to be making at the time. Appellant claims that the law provides a remedy if he does not pay through the registry; however, his history shows that he has neither respected nor followed court orders with respect to this issue in the past. The trial court did not abuse its discretion in requiring appellant to make payments through automatic bank draft.

For his third point, appellant argues that he should not suffer claim preclusion for any future motions to reduce support. In the oral ruling on April 4, 2002, and also in the order entered on April 12, 2002, the trial court stated that any future motions to reduce support would be subject to res judicata prior to the April 4, 2002 hearing, and that appellant would have to show a change in circumstances occurring after that date. Appellant claims that this ruling was in error and cites Payton v. Wright, 63 Ark. App. 33, 972 S.W.2d 953 (1998), where this court determined that a "petitioner seeking modification in child support, . . . may present evidence showing all relevant changes in financial circumstances since the support rate was last set, without being limited to the date of any unsuccessful interim proceeding seeking modification." Payton, 63 Ark. App. at 37, 972 S.W.2d at 956.

Appellee claims this argument is not ripe for appeal, and that rendering a decision in favor of appellant on this issue would be based on speculation. We agree and decline to reach the merits of appellant's third point. The appropriate time for appellate review would be if he requests relief in the future based on a change of circumstances that occurred prior to the April 4, 2002 hearing and that request is denied. Under that scenario, the order denying relief would have to be examined in light of the holding in Payton, supra.

Affirmed.

Gladwin and Bird, JJ., agree.

1 Appellee refers to related contempt proceedings against appellant, based on motions she filed on March 26, 2002, and April 17, 20002, that occurred subsequent to the April 4, 2002, hearing date. No appeal has been made from those proceedings, and there is no reference to them in either the abstract or addendum. While she discussed these proceedings in her brief, appellee did not file a supplemental abstract or addendum; however, we can go to the record to affirm. See McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001).