Dwight D. Brown v. Maria H. Brown (now Hoskins)

Annotate this Case
ca04-204

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION I

CA04-204

NOVEMBER 3, 2004

DWIGHT D. BROWN AN APPEAL FROM THE FAULKNER

APPELLANT COUNTY CIRCUIT COURT [NO. E-1989-793]

V.

MARIA H. BROWN (NOW HOSKINS) HONORABLE DAVID L. REYNOLDS, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

The parties in this child-support case were divorced on April 18, 1990. The trial court granted appellee Maria Brown (now Hoskins) custody of the parties' two minor children, Christina and Victoria. In September of 2002, appellee filed a motion to modify support. She sought increased support based on appellant's income; she also sought continued support for Christina beyond the age of eighteen due to her disability. Appellant Dwight Brown requested that the court order support for Victoria only because Christina had reached the age of eighteen and received Supplemental Security Income (SSI) of $460 a month.

At the hearing appellee testified that Christina was diagnosed at birth with mental retardation, which was later classified as mild cerebral palsy plus multi-mental learning disabilities. Christina was later diagnosed with an undetermined neurological degenerative condition that was causing a steady deterioration in her health. At the time of the hearing, Christina was confined to a wheelchair, could not walk or go to the bathroom without assistance nor read or write. It has been determined that Christina will never be self-supporting or able to live on her own.

Appellee testified that Christina is well-cared for in that she has a care management agency that accompanies her to school. She further testified that the Medicaid waiver program provides assistance with Christina's medical bills. Christina benefits from Napstine therapy, physical therapy, occupational and speech therapy, and horseback riding therapy. Appellee noted that Christina is the recipient of $460 per month in SSI.

Appellant testified that he carries Christina on his medical insurance and that he would continue to support his daughter, but would prefer to do it absent a child-support order. He noted that Christina's medical expenses are taken care of and that the $460 she receives in SSI benefits should take care of Christina's monthly expenses.

The trial court determined that Christina was disabled and would not in the foreseeable future be able to support herself financially; accordingly, the court set support at $1,086 per month for both children. This appeal followed.

On appeal, appellant argues that the trial court was in error by setting monthly child support payments for an adult, disabled child based solely on appellant's income without considering (1) Christina's SSI income and (2) both his and appellee's incomes and their respective responsibilities for providing for Christina and the respective abilities to pay. We summarily affirm.

The general rule is that once a child reaches majority the legal duty of the parents to support that child ceases. Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002). An exception to this rule, however, exists when a child is mentally or physically disabled in any way at majority. Id. Arkansas Code Annotated section 9-12-312(a)(5)(B) (Repl. 2002) provides that the "court may also provide for the continuation of support for an individual with a disability which affects the ability of the individual to live independently from the custodial parent." The determination of whether continued support for an adult child is proper has to be made on the basis of the facts of each particular case. Kimbrell v. Kimbrell, 47 Ark. App. 56, 884 S.W.2d 268 (1994). As a rule, when the amount of child support is at issue, the appellate court will not reverse the trial judge absent an abuse of discretion. See Delacey v. Delacey, ___ Ark. App. ___, 127 S.W.3d 486 (2004).

The arguments now advanced on appeal were not raised below. First, appellant did not ask the court to specifically consider Christina's SSI benefits as against his support. Second, he presented no evidence, by testimony or financial means, that would have enabled the court to determine appellee's contribution to Christina. Therefore, neither of these issues are properly before us. See State v. Wallace, 328 Ark. 183, 941 S.W.2d 430 (1997) (we do not consider arguments raised for the first time on appeal).

Affirmed.

Griffen and Roaf, JJ., agree.