Troy Kevin Ratliff v. Cynthia M. Ratliff

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION III

TROY KEVIN RATLIFF

APPELLANT

v.

CYNTHIA M. RATLIFF APPELLEE

CA02-938

June 11, 2003

APPEAL FROM PULASKI COUNTY CIRCUIT COURT

[NO. DV-99-6142]

HONORABLE MACKIE PIERCE, CIRCUIT JUDGE

AFFIRMED

Troy Kevin Ratliff appeals from the trial court's order holding him in contempt for failure to pay child support in the full amount previously ordered and denying his motion to reduce child support. On appeal, Ratliff argues that the trial court erred 1) because the contempt order was based upon an order for support in excess of sixty percent of his disposable earnings in violation of 15 U.S.C. § 1673 (c); and 2) in refusing to grant a reduction in support in accordance with the income he claims to earn rather than the income that had been imputed to him by the trial court in the earlier divorce proceedings. Ratliff's first argument is barred by law of the case, and his second point is without merit. Consequently, we affirm.

This appeal arises out of a divorce action. In a divorce decree entered February 1, 2002, the trial court set child support for Ratliff at $1,260 a month, retroactive to December 14, 2001. Thecourt subsequently modified this order on March 5, 2002, again finding that Ratliff's income, at a minimum, was $100,000 per year, but the court recalculated the child support to $1,037 a month. Ratliff appealed the decree, challenging, among other matters, the trial court's determination of his income for purposes of support. While this appeal was pending, Ratliff failed to fully comply with the child support order and the appellee, Cynthia Ratliff, filed a motion for contempt. Ratliff filed a counter-motion for modification of child support in which he argued that the withholding for child support from his income could not exceed 60% of his take-home pay, pursuant to the provisions of 15 U.S.C. § 1673 and that he was voluntarily paying that amount in support. The trial judge found Ratliff in contempt and ordered him to serve seven days in jail if he did not pay support arrearages in the amount of $1,876.49. The court also denied his motion for a reduction of child support. This finding of contempt and denial of Ratliff's motion to reduce his child support are involved in the present appeal; they were heard on May 14, 2002, and the order was entered on May 30, 2002. On April 9, 2003, this court, in an unpublished opinion, affirmed Ratliff's appeal from the divorce decree on all points except an earlier finding of summary contempt.

On appeal, Ratliff first argues that the trial court violated 15 U.S.C. § 1673 by finding him in contempt of court for failure to pay the previously ordered child support. Ratliff asserts that, pursuant to 15 U.S.C. § 1673(c), he was paying the maximum amount allowable of his disposable earnings (60%), or $227.91 per week. However, this was less than the amount ordered by the trial court, and Ratliff's argument is in essence a second challenge to the trial court's determination of his income in the divorce and subsequent hearing. During these proceedings, the trial court found that Ratliff and his witnesses had no credibility, determined that Ratliff earned or had the ability toearn at least $100,000 per year as a master plumber, and established child support based on that income less appropriate deductions.

The law-of-the-case doctrine provides that the decision of an appellate court establishes the law of the case for the trial court upon remand and for the appellate court itself upon subsequent review, and the doctrine is conclusive of every question of law and fact previously decided by the appellate court. Ward v. Williams, 80 Ark. App. 69, 91 S.W.3d 102 (2002). The law-of-the-case doctrine is not inflexible and only prevents an issue raised in a prior appeal from being raised in a subsequent appeal where the evidence does not materially vary between the two appeals. Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999).

In our decision entered April 9, 2003, this court affirmed the trial court's finding that Ratliff earns $100,000 per year, and the monthly child support of $1,037 which was set in accordance with the family support chart. Consequently, the law-of-the-case doctrine bars Ratliff's back-door challenge to the amount of his income, which is the sole basis for his assertion that he has been ordered to pay more than 60% of his disposable earnings in violation of federal law.

Ratliff next argues that the trial court erred in not granting his motion for a reduction in child support. We find no merit to this argument. Once again, Ratliff is re-arguing an issue that has already been decided by the trial court and affirmed by this court. Ratliff made no argument to the trial court that his income had been reduced or that a change of circumstances had occurred. Instead, he again asserted that the trial court incorrectly determined his yearly income to be $100,000. The hearing on Ratliff's motion for reduction was held just a few months after the divorce decree was entered. At this hearing, an accountant testified on Ratliff's behalf and stated that she had reviewed the books of his plumbing business and had determined that his yearly income could not possibly be $100,000. However, the trial court is in a superior position to weighthe credibility of the witnesses. Dewitt v. Johnson, 349 Ark. 294, 77 S.W.3d 530 (2002). The trial court again stated on the record that Ratliff and the witnesses as to his finances had no credibility in the eyes of the court. We have affirmed the trial court's prior determination of Ratliff's income, and Ratliff failed to present any evidence of a change in circumstance so as to warrant a reduction in his support. Therefore, we cannot say that the trial court's decision to deny the reduction is clearly erroneous. Carter v. Carter, 19 Ark. App. 242, 249, 719 S.W.2d 704,707 (1986); see also, Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409 (1953).

Affirmed.

Hart and Bird, JJ., agree.