John Pflasterer v. Denean Pflasterer Summers

ca03-049

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

JOHN PFLASTERER,

APPELLANT

v.

DENEAN PFLASTERER SUMMERS,

APPELLEE

CA03-49

JUNE 18, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION,

HON. MACKIE PIERCE, CIRCUIT JUDGE

AFFIRMED AS MODIFIED

Appellant John Pflasterer appeals the decision of the Pulaski County Circuit Court denying his petition to change custody of his child, J.P., and awarding appellee Denean Summers an increased amount of child support. He contends (1) that the trial court erred in finding that there was not a sufficient change in material circumstances to warrant a change in custody of the parties' twelve-year-old son, and (2) that the trial court erred in its calculation of the modification of child support. We affirm the denial of his petition to change custody; however, we affirm the decision regarding child support, as modified.

Mr. Pflasterer and Ms. Summers were divorced on March 29, 1995, and Ms. Summers was awarded custody of J.P. Subsequently, Ms. Summers moved to Maryland with J.P., and Mr. Pflasterer filed a motion for change of custody. On March 8, 2000, the trial court denied this motion and set out specific conditions for visitation. Mr. Pflasterer filed his most recent petition for change of custody on February 27, 2002, alleging that there

had been a change in circumstances with respect to the custody of J.P. Ms. Summers filed a response, denying that there had been a change in circumstances warranting a change of custody to Mr. Pflasterer, requesting an increase in child support, and requesting that Mr. Pflasterer's visitation rights be modified.

In Hamilton v. Barrett, 337 Ark. 460, 465-66, 989 S.W.2d 520, 523 (1999), our supreme court set forth its standard of review in change-of-custody cases:

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. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). We give due deference to the superior position of the chancellor to view and judge the credibility of the witnesses. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). This deference to the chancellor is even greater in cases involving child custody, as a heavier burden is placed on the chancellor to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986). Where the chancellor fails to make findings of fact about a change in circumstances, this court, under its de novo review, may nonetheless conclude that there was sufficient evidence from which the chancellor could have found a change in circumstances. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988).

Our law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered.Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id.

Whether the trial court erred in finding that there was not a sufficient change in material circumstances to warrant a change in custody.

Mr. Pflasterer contends in his first point of appeal that there was a change in

circumstances regarding the custody of J.P. This contention is based essentially on two points: that after the trial court denied Mr. Pflasterer's previous motion for a change in custody on March 8, 2000, J.P., who was twelve years old, expressed a desire to live in Arkansas with his father and extended family; that J.P.'s maternal grandmother, who often supervised J.P. in Maryland, had moved back to Arkansas.

Regarding the first basis of Mr. Pflasterer's contention that there was a change in circumstances, Dr. Glen Lowitz testified that J.P. stated he would rather live in Arkansas. However, Dr. Lowitz also testified that J.P. always qualified those statements by expressing a desire for his mother to live in Arkansas as well. Additionally, Dr. Lowitz stated that there was no sense of urgency noted, there was no suggestion by J.P. that he might run away, nor was there any indication that it was necessary for J.P. to leave Maryland. It is apparent from the testimony that J.P. would, ideally, like to have his mother and father live next door to each other in Arkansas. Furthermore, Dr. Lowitz testified that he feels J.P. wants to make the best of whatever happens and is very concerned about not wanting to hurt either parent. As to the second basis of Mr. Pflasterer's contention regarding a change in circumstances, the move of J.P.'s maternal grandmother from Maryland to Arkansas, hisargument is similarly un-persuasive. According to the testimony, Ms. Summers' mother moved to Maryland some time after Mr. Pflasterer's previous petition for change of custody was denied on March 8, 2000. Additionally, there was testimony at trial that she had lived with Ms. Summers and J.P. in Maryland for approximately one year, but that she moved back to Arkansas prior to the filing of petition that is the subject of this appeal. Thus, J.P. and his mother are in the same situation they were in when the trial court previously denied Mr. Pflasterer's petition to change custody on March 8, 2000.

Given the evidence noted above and after conducting a de novo review, we hold that the trial court was not clearly erroneous in its decision to deny Mr. Pflasterer's petition for change of custody.

Whether the trial court erred in its calculation of the modification of child support.

As his second point on appeal Mr. Pflasterer contends that the court erred in calculating the amount by which his child support should be modified. Specifically, he argues: (1) that Ms. Summers did not present any evidence justifying a modification of this amount of support; (2) that the court erred in calculating his income and deductions for purposes of setting child support; and (3) that the court erred in including part-time, temporary earnings as income for purposes of determining his child-support obligation. As to (1) and (3) above, we find no error. However, as to (2) we agree that the trial court failed to allow Mr. Pflasterer a proper credit against income for sums paid by him on his child's medical insurance premiums.

Matters concerning the award of child support are reviewed de novo. We will notreverse a trial court's findings of fact 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 court 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.

Under his second point of appeal, Mr. Pflasterer contends that Ms. Summers did not present any evidence below regarding a change of circumstances requiring modification of child support, and that the trial court did not make the necessary findings regarding the alleged change in circumstances. Arkansas Code Annotated section 9-14-107 (a) (Repl. 2002) states that:

A change in gross income of the payor in an amount equal to or more than twentypercent (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 obligated amount according to the family support chart after appropriate deductions.

Appellee responds that Mr. Pflasterer at no point in time during any of the deliberations, nor in any letters or conversations with the trial court, objected to the court setting child support based on appellant's current income. We note that Mr. Pflasterer did object in a letter to the court that Ms. Summers did not make available her affidavit of financial means; however, this is not the issue that Mr. Pflasterer now raises on appeal. Consequently, we hold that he is raising this argument for the first time on appeal and, consistent with our well-settled law, we decline to consider it. Irvin v. Irvin, 47 Ark. App. 48, 883 S.W.2d 862 (1994).

Mr. Pflasterer next contends that the trial court erred in calculating his income and his deductions as they relate to his child-support obligation. 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 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). Section II of that order, which defines income for purposes of child support, states the following:

Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for:

1. Federal and state income tax;

2. Withholding for Social Security (FICA), Medicare, and railroad retirement;

3. Medical insurance paid for dependent children; and

4. Presently paid support for other dependents by court order.

Regarding Mr. Pflasterer's income, there was testimony that he had received income from three sources: the National Guard, North Little Rock Fire Department, and Monarch Dental. Without explanation as to how the figures were derived, the trial court determined that Mr. Pflasterer's net weekly income, after deductions, is as follows: North Little Rock Fire Department, $640; National Guard, $115; and Monarch Dental, $115. The court then erroneously concluded that the total of these income sources gives Mr. Pflasterer a net income, for child support-purposes, of $840 per week1, and then used that figure as the basis for setting Mr. Pflasterer's child-support obligation, pursuant to the Weekly Family Support Chart contained in Administrative Order No. 10, at $140 per week.

From our de novo review of the record, it appears, however, that Mr. Pflasterer's net weekly income is: North Little Rock Fire Department, $606; National Guard, $113; and Monarch Dental, $108, for a total of $827. Furthermore, it appears that the trial court failed to allow Mr. Pflasterer a deduction for the $38 in medical insurance premiums he paid for the benefit of J.P. every two weeks. Mr. Pflasterer clearly sought credit for these payments as evidenced by his inclusion of this deduction on his affidavit of financial means and by his attorney's August 21, 2002, letter to the court. We can find no evidence contradicting the fact that Mr. Pflasterer does indeed pay $38 bi-weekly for J.P.'s medical insurance, and thetrial court gave no reason for not allowing the deduction. Thus, we hold that he is entitled to deduct $19 from his weekly income pursuant to Administrative Order No. 10, thereby resulting in a weekly net income, for child-support purposes, of $808. According to the Weekly Family Support Chart found in Administrative Order No. 10, this deduction results in a reduction of Mr. Pflasterer's child support obligation from $140 to $136 per week.

Mr. Pflasterer also makes arguments regarding his "new fire plan," his pay from Monarch Dental, his sick leave, holiday and personal leave pay, and his so called "bonus" pay. First, we decline Mr. Pflasterer's invitation to allow his "new fire plan" as a deduction under Administrative Order No. 10. Mr. Pflasterer asks this court to treat this deduction as a "FICA-like" contribution. Our supreme court has never held that this type of plan should be allowed as a deduction when calculating income for purposes of child support. In Montgomery v. Bolton, 349 Ark. 460, 466, 79 S.W.3d 354, 357-58 (2002), our supreme court discussed the language in Administrative Order No. 10 as it relates to income, stating that:

We have said that the definition of "income" included in Section II of Administrative Order No. 10 "is intentionally broad and designed to encompass the widest range of potential income sources for the support of minor children." Davis v. Office of Child Supp. Enforcem't, 341 Ark. 349, 358, 20 S.W.3d 273, 278 (2000). However, we have also said that determining expendable income is the ultimate objective of the trial courts in fixing child support. See McWhorter v. McWhorter, supra. Moreover, we have declined to limit the types of income or permissible deductions to only those listed in Section II of Administrative Order No. 10. See id. Neither list, we have said, is exhaustive or exclusive. See id.

Our supreme court went on to say that it would construe the words in Administrative Order No. 10 just as they read, giving them their ordinary and usually accepted meaning. Id. It is clear from a reading of Administrative Order No. 10 that the "new fire plan" is not includedas a possible deduction.

Regarding Mr. Pflasterer's pay from Monarch Dental, his sick leave, holiday and personal leave pay, and his "bonus" pay, we hold that the trial court did not err by including these sources for purposes of calculating income. As was stated above, the definition of "income" included in Section II of Administrative Order No. 10 "is intentionally broad and designed to encompass the widest range of potential income sources for the support of minor children." Id. While Mr. Pflasterer may no longer work at Monarch Dental, it is clear from his testimony that he is willing and able to work part-time in order to help pay for his visits to Maryland, which is the purpose for which he acquired the job with Monarch Dental in the first place. In fact, Mr. Pflasterer's counsel made it known in a letter to the trial court that he had no doubt that his client would seek additional employment to have funds to visit J.P. Furthermore, it is clear that the other pay received by Mr. Pflasterer, including his sick leave, holiday and personal pay, and his so called "bonus" pay falls within the definition of income as defined in Administrative Order No. 10 as stated above.

Thus, in summary, we affirm the decision of the trial court denying appellant's petition for change of custody. However, pursuant to our de novo review, as discussed previously, we find that $136 is the appropriate amount of child support to be paid weekly by Mr. Pflasterer. Therefore, the trial court's determination of the amount of child support is modified. See Crismon v. Crismon, 72 Ark. App. 116, 34 S.W.3d 763 (2000).

Affirmed as modified.

Gladwin and Griffen, JJ., agree.

1 From our calculations, using the trial judge's figures, the total of Mr. Pflasterer's three income sources is $870, not $840 as found by the trial judge.