Office of Child Support Enforcement v. Derwin Lee

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ca04-743

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA04-743

March 9, 2005

OFFICE OF CHILD SUPPORT AN APPEAL FROM CHICOT

ENFORCEMENT COUNTY CIRCUIT COURT

APPELLANT [DR03-244-4]

V. HON. DON E. GLOVER, JUDGE

DERWIN LEE

APPELLEE REVERSED AND REMANDED

Wendell L. Griffen, Judge

This is an appeal from an order mandating that appellee, Derwin Lee, pay $54 per week in child support. The Office of Child Support Enforcement appeals, arguing that the trial court erred in determining the amount of child support due. It further argues that an amended judgment entered by the trial court is void because it was not timely entered.1 We reverse and remand because the trial court improperly calculated appellee's child-support obligation.

Appellant filed a complaint for support, alleging that appellee owed a duty of support to a minor child, Marquavius Spencer, d.o.b., 9/15/98. Appellee filed no response to the complaint, but appeared at the hearing. He testified that he currently pays child support for another child, in a different household. Appellant alleged that appellee's net weekly income was $330.84, after deducting bi-weekly child support of $212.56. However, appellant's attorney later acknowledged that based on appellee's check stub, he paid biweekly child support in the amount of $134.20. The trial court ultimately determined that appellee's net weekly income is $330.84 and ordered him to pay child support for Marquavius in the amount of $54 per week. The court also ordered appellee to pay for Marquavius's health insurance. Appellant objected that the correct amount of child support for one child according to the Family Support Chart is $74. An order of support was entered on February 19, 2004, in which the trial court acknowledged that the presumptive amount of child support for appellee's income level is $74. However, the court found that amount to be an "unreasonable" amount for appellee to pay, due to his existing child-support obligation. Thus, the court calculated appellee's child-support obligation as follows: "[T]he amount of support for two dependents using the above net weekly income [$330.84] is $108.00 weekly, and one-half of that amount is $54.00 weekly."

Appellant thereafter filed a motion for new trial on February 26, 2004. No new trial was held, but the court filed an amended judgment on April 21, 2004. After examining appellee's income, and allowing deductions for taxes, his existing child-support obligation, and the cost of insurance, the court found appellee's weekly net income to be $503.24 and determined that he should pay child support of $59 per week.

I. Calculation of Child Support

Appellant raises four subpoints in relation to its main argument that the trial court erred in determining the proper amount of child support: 1) that the trial court failed to award the child support "pursuant to" the evidence; 2) that support should have been set at $74 per week, the presumptive amount for one child; 3) that appellee's income was calculated improperly because the trial court gave him two deductions for his existing child-support obligation; 4) that the trial court should have considered Marquavius's needs "separately and apart" from appellee's other dependent child. These arguments will be considered together, as they each relate to the calculation of the proper amount of child support.

We review child-support determinations de novo and will not reverse a trial court's determination of the same unless we find an abuse of discretion. Alfano v. Alfano, 77 Ark. App. 62, 72 S.W.3d 104 (2002). The Family Support Chart set out in Administrative Rule No. 10 creates a rebuttable presumption of the appropriate amount of child support for specific income levels. Admin. R. No. 10, § 1. The trial court may deviate from the chart, but must provide written findings as to the presumptive amount if it determines the presumptive amount is unjust or inappropriate. Admin. R. No. 10, § 1; Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1993).

In determining a payor's income, Administrative Order Number 10, Section II (3)(4) allows deductions for court-ordered support paid on behalf of other children. At the hearing, appellee offered conflicting testimony regarding the amount of child support that he paid. However, it was ultimately determined that he paid $134.20 every two weeks because appellant's counsel informed the court that she had a check stub of appellee's indicating he paid that amount.

Appellant's counsel asserted that appellee earned a net income of $330.84 weekly, a figure which was originally accepted by the court. Counsel also asserted that appellee's existing child-support obligation was $212.56 bi-weekly, and that she subtracted that amount from his gross pay in determining his net income. She argued that the presumptive amount of child support for one child at that income level is $74. Counsel further noted that appellee's net income would be greater than the amount she indicated if he paid child support of only $134.20 every two weeks. The court determined that appellee's income was $330.84 per week and noted that the presumptive amount of child support for one child was $74 per week. As noted previously, the court then reduced that obligation by dividing the presumptive amount for two children, $108, in half, and set support for Marquavius at $54 per week.

While we agree that the trial court erred in calculating appellee's child-support obligation, we do not agree that the trial court erred in attempting to make an adjustment to the level of child support based on the fact that appellee pays child support for another child. Administrative Order Number 10, Section II(4) clearly allows deductions for presently-paid support for other dependents by court order. In addition, Section V(b)(7) specifically allows further adjustments based the support given by a payor for dependent children, even in the absence of a court order.

Nonetheless, we reverse and remand for a redetermination of appellee's child-support obligation. It is clear that the court erred in using the presumptive amount of child support for two children, instead of one, and that the child-support chart is to be applied to the child before the court. Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991)(noting that the trial court erred in setting child support based on the presumptive amount for three children, when the instant case concerned child support for one child). The effect of doing as the trial court did here was to improperly "dilute" the presumptive amount of support for Marquavius, because the support chart is structured so that the amount of support per child decreases in proportion to the number of added dependents. Id. As this court has stated:

the method of application of the administrative order is not to count the total number of the payor's dependents and divide the amount of child support recommended by the administrative order by the number of dependents. Rather, in determining income as defined by Section II, the order provides that "[p]resently paid support for other dependents by Court order," is deducted from the payor's income. Furthermore, under the considerations for deviation from the administrative order under Section V(b)(7), the court may consider "[t]he support required and given by a payor for dependent children, even in the absence of a court order." Moreover, we have previously noted in other cases that the amount set forth in the family support chart in the administrative order should be applied to the child that is before the court, and in applying the family support chart, it is improper for the chancellor to have determined the amount of child support to be paid based on the payor's total number of dependents and then divide that amount by the total number of dependents. [Citations omitted.]

Moreland v. Hortman, 72 Ark. App. 363, 367-68, 39 S.W.3d 23, 26 (2001).

However, the mere fact that the trial court used a wrong method in determining the amount of child support would not require us to reverse if the amount of support ordered did not constitute an abuse of discretion. In Waldon, supra, we affirmed where the trial court improperly used the presumptive amount for three children, instead of one. The correct presumptive amount in Waldron was $97 and the trial court reduced that amount to $85. Although determining that the trial court in Waldron improperly used the wrong presumptive amount for three children instead of one, we affirmed because the end result represented only a "slight deviation" from the correct chart amount. Waldron, supra.

The instant case differs from Waldron in two significant respects. First, in Waldron, the payor had other "considerable" obligations in addition to paying child support and insurance on other children. The child in Waldron had Down's Syndrome and the payor there was obligated to pay for the child's "considerable" medical expenses not covered by insurance, costs which would extend beyond the age of the child's majority. Waldron, supra. By contrast, here, there is no evidence of any extraordinary costs that appellee is obligated to incur on Marquavius's behalf or on behalf of his other child. While a reduction of $12 per week in Waldron was properly seen as a "slight deviation" given the payor's other "considerable" obligations, we do not similarly view a difference of $22 per week in this case as a slight deviation in the absence of evidence of similar extraordinary expenses.

Second, unlike the situation in Waldron, here the error in using the wrong presumptive amount is compounded because the trial court improperly determined that appellee's child-support obligation was $212.56 bi-weekly instead of $134.20 bi-weekly (the figure the court subsequently used in the amended judgment). The effect of this was to potentially further reduce appellee's child-support obligation to Marquavius because it resulted in a lower net income than it would have if the proper amount of appellee's existing child-support obligation been taken into consideration.

Thus, appellee's child-support obligation here was improperly reduced due to the trial court's failure to use the corrective presumptive amount of child support and due to the improper calculation of appellee's existing child-support obligation. For these reasons, we reverse and remand with instructions for the trial court to redetermine appellee's child-support obligation to Marquavius.

II. Amended Judgment

Appellant's second argument is that the trial court's amended judgment, in which the court found that appellee's net weekly income is $503.24 and raised appellee's child-support obligation to $59 weekly, is without effect because it was not timely entered. Specifically, appellant argues that because the trial court failed to rule on its motion for new trial within thirty days, it lost jurisdiction to grant the relief requested in the motion.

However, appellant does not appeal from the amended judgment, only from the February 19, 2004 support order. Nonetheless, the amended judgment would conflict with our determination in the instant case because it appears that the court again failed to use the correct presumptive amount in determining child support. The presumptive amount for one child at the $500 net income level is $96.2 The amount of child support set by the court in the amended order, $59, is well-below this level, yet the order provides no explanation as to why the court deviated from the support chart. As such, although appellant does not appeal from this amended order, we invite the trial court to reconsider the amended judgment in light of our reversal of the February 19, 2004 support order, recognizing the trial court's authority to enter any appropriate orders that are not inconsistent with our opinion in this case.

Reversed and remanded.

Robbins and Roaf, JJ., agree.

1 Appellee did not file a brief in this case.

2 According to Administrative Rule Number 10, Section III(a), the court is not to interpolate, but is to use the lower income figure. Here, because the chart increases from $500 to $510, the court should have used the lower figure of $500 to determine appellee's child-support obligation.