Office of Child Support Enforcement v. Leon Harden, Jr.

ca04-746

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

OFFICE OF CHILD SUPPORT ENFORCEMENT,

APPELLANT

V.

LEON HARDEN, JR.,

APPELLEE

CA04-746

JUNE 8, 2005

APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT,

NO. E91-110-4,

HON. DON E. GLOVER, JUDGE

REVERSED AND REMANDED

Sam Bird, Judge

By order of February 19, 2004, and amended order of March 22, 2004, the Chicot County Circuit Court modified appellee Leon Harden's previous obligation of child support for two children. The Office of Child Support Enforcement (OCSE) appeals those orders and raises two points, contending that the trial court erred (1) in failing to award child support pursuant to the Arkansas Family Support Chart based upon the income and other evidence presented, and (2) in setting support based upon a forty-hour work week when the evidence showed that Harden's income varied and sometimes included overtime wages. Harden, who appeared pro se at trial, has not filed a brief in this appeal. We agree with the arguments presented by OCSE on both points; thus, we reverse and remand this case to the trial court for proper application of the family-support chart and for determination of Harden's average weekly salary.

Arkansas Code Annotated section 9-12-312(a)(2) (Repl. 2002) creates the rebuttable presumption that the amount contained in the most recent revision of the family support chart is the correct amount of child support to be awarded, initially or upon review. The subsection states that the presumption shall be rebutted only upon a written finding or specific finding

on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart. Arkansas Code Annotated section 9-14-106(a) (Repl. 2002) contains language virtually identical to that of section 9-12-312(a)(2).

Child support cases are reviewed de novo, but we will not reverse a finding of fact unless it is clearly erroneous. Alfano v. Alfano, 77 Ark. App. 62, 72 S.W.3d 104 (2002). When child support is at issue, we will not reverse the trial court absent an abuse of discretion. Id. It is true that the trial judge may deviate from the chart amount if it exceeds or fails to meet the needs of the child. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003) (citing Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990)); see also In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. 1064 (2002).

Section I of Administrative Order No. 10, addressing the authority and scope of the trial court, sets forth further guidelines to be followed:

All orders granting or modifying child support (including agreed orders) shall contain the court's determination of the payor's income, recite the amount of support required under the guidelines, and recite whether the court deviated from the Family Support Chart. If the order varies from the guidelines, it shall include a justification of why the order varies as may be permitted under Section V hereinafter. It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a specific written finding within the Order that the amount so calculated, after consideration of all relevant factors, including the best interests of the child, is unjust or inappropriate.

Administrative Order No. 10 at 1067.

Subsection V of Administrative Order No. 10, entitled "Deviation Considerations," lists in subsection (a) twelve relevant factors to be considered by the court in determining the appropriate amount of support: food, shelter and utilities, clothing, medical expenses, educational expense, dental expenses, child care, accustomed standard of living, recreation, insurance, transportation expenses, and other income or assets available to support the child from whatever source. Subsection V(b) lists eight additional factors that may warrant adjustments to child-support obligations:

1. The procurement and maintenance of life insurance, health insurance, dental insurance for the children's benefit;

2. The provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children (e.g., orthopedic shoes, glasses, braces, etc.);

3. The creation or maintenance of a trust fund for the children;

4. The provision or payment of special education needs or expenses of the child;

5. The provision or payment of day care for a child;

6. The extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements;

7. The support required and given by a payor for dependent children, even in the absence of a court order; and

8. Where the amount of child support indicated by the chart is less than the normal costs of child care, the court shall consider whether a deviation is appropriate.

Procedural History

In the initial child-support order of May 31, 1991, the lower court directed Harden to pay $25 weekly for the support of two children. On December 31, 2003, OCSE filed a motion to modify support, alleging that a material change of circumstances existed in that Harden's gross income as defined by Ark. Code Ann. § 9-14-107 had changed by more than twenty percent or by more than $100 a month.1

The OCSE attorney, Linda Lamb, stated to the trial court at the modification hearing that Mr. Harden had a weekly net income of $342 and that the support amount for two dependents should be $109 per week, which was the amount the State was requesting. She also told the court that Harden had a current arrearage of $866, and she stated that he had paid well through a wage assignment.

Mr. Harden testified that, in addition to being father of the two children whom the 1991 judgment ordered him to support, he was father of two other children who currently resided with him. He stated that he lived in Eudora, that he was employed as the produce manager of Kroger, and that he carried insurance on all of his children. The following exchange occurred during Harden's testimony:

Harden: Like I told Ms. Lamb, see, I couldn't have more responsibility than what I had, you know, two kids with me also. I showed her one of my pay stubs I had with a lot of overtime. But, I don't think she should count the overtime on that.

. . . .

The Court: Okay. And I believe your take-home pay is about $350 per week?

Harden: Based on that- According to how many hours I work. Like I've got forty-five hours, it'd be about that much. Like on a regular forty hours it would probably be about $300, $325.

The trial court issued its ruling from the bench:

The chart for four is $142 for four children. Certainly the minimum.... He's paying just $25 for the two of them right now? I am going to, considering the chart and what it calls for four children, and he is the father of four, and considering that he lives in Eudora, Arkansas, the Court is of the opinion that a deviation from the chart would be necessary by virtue of the standard of living, accustomed standard of living. I think $36 per child, a total of $72 ... plus so much per month on arrearage would be the appropriate child support. That's going to be the Court's ruling.

The written order of February 19, 2004, reflected the court's findings that Harden's current income exclusive of taxes, social security, and health insurance premiums averaged $342.87, and that the Arkansas Family Support Chart created a rebuttable presumption that $109 weekly support was a reasonable amount for him to pay. The order also stated:

HOWEVER, the court finds that Leon Harden Jr. is the father of four (4) children, and considering the chart amount for four (4) dependents and the fact that he lives in Eudora, Arkansas and he and the children are accustomed to a particular standard of living, the Court is of the opinion that deviation from the Arkansas Family Support Chart is necessary; therefore taking $36.00 per child and multiplying by two as there are two dependents in this case, Leon Harden Jr. is hereby directed to pay the sum of $72.00 weekly....

Additionally, the order directed Harden to pay $14.40 a week toward his child-support arrearage.

OCSE subsequently moved for a new trial, asserting in part that the appropriate amount of child support under the Family Support Chart was $109 a week and that the trial court had failed to make specific findings, as required by Administrative Order No. 10, that the chart amount was unjust or inappropriate. In its amended order of March 22, 2004, the trial court denied the motion for new trial and again set the sum of child support at $72 a week, finding that the sum was reasonable. This order included the following:

Evidence adduced revealed that defendant, Leon Harden, Jr. is the father of four children eighteen years of age or younger.... Testimony revealed that his take home pay after deductions including insurance for all children [ranges] from $300 to $325 per week depending upon hours. The Arkansas weekly family support chart for four children based on weekly net pay of $310 is $136 for four children and $104 for two. In this case, the modification pertains to two children who live out of defendant's home. Defendant is also the primary supporter of two additional children who live with him. Considering the support obligations for two other children and the financial status of defendant, it is the Court's opinion that a deviation from the Arkansas weekly family support chart is appropriate.

1. Whether the trial court erred in failing to award child-support pursuant to the Arkansas Family Support Chart based upon income and other evidence presented

The child-support chart should be applied to the child or children in the case-at-hand before the trial court. Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991). It is improper to apply the chart based on the total number of dependents that a non-custodial parent may have, and then divide the chart amount by that number, resulting in a "diluted" amount of support. Id. In Moreland v. Hortman, 72 Ark. App. 363, 367-68, 39 S.W.3d 23, 26 (2001), we stated:

[T]he 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."

After proper application of the child-support chart, the trial court may consider a payor's dependent children in determining his financial ability to support the children who are the subject of the support order. See Ark. Dep't of Human Servs. v. Forte, 46 Ark. App. 115, 877 S.W.2d 949 (1994); Clark v. Tabor, 38 Ark. App. 135, 830 S.W.2d 873 (1992); Waldon, supra.

OCSE argues that the amount ordered by the court, $72 per week, was "conspicuously close" to half of $136, the amount shown on the chart for four dependents, while the chart amount for two dependents was shown to be $104 per week. We agree with OCSE that the trial court erred by not using the chart amount for two dependents, the number of children who were the subject of the support order in the case before it, as a basis for determining the amount of support to be set.

We reverse and remand this first point on appeal. Upon remand the court must first consider the rebuttable presumption that the support chart's amount of support for two children according to Harden's salary is the appropriate amount to be assigned. However, after proper application of the child-support chart, the court may consider Harden's other dependent children in determining his financial ability to support the two children who are the subject of the support order here at issue. If the court again finds that deviation is warranted, it must consider the twelve relevant factors of Administrative Order No. 10 section V(a). Additionally, the court may consider any of the eight additional factors of V(b).

2. Whether the trial court erred in setting support based upon a forty-hour work week when the evidence showed that Harden's income varied and sometimes included overtime wages

OCSE alleged at the hearing that Harden's average net weekly income was $342. Harden testified that this amount reflected a pay check with a lot of overtime, and he stated that his normal weekly income, without overtime, was around $300 to $325. The trial court found that the net income ranged from $300 to $325, and it used $310 as the figure for Harden's weekly net income. OCSE asserts on appeal that, rather than using only Harden's weekly income without overtime pay, the court should have used an average of Harden's weekly income, including weeks in which he received overtime pay, in determining his income for child-support purposes. We agree.

Income for child-support purposes should be calculated by averaging the payor's earnings and deriving a true picture of the payor's income. Delacey v. Delacey, 85 Ark. App. 419, 155 S.W.3d 701 (2004). Income means "any form of payment, periodic or otherwise, ... including wages..., less proper deductions." Admin. Order No. 10 § II. Here, it appears that the court used Harden's weekly income without any overtime rather than figuring an average weekly income including overtime. We therefore remand this second point to the trial court for proper calculation of Harden's earnings.

Reversed and remanded.

Vaught, J., agrees.

Griffen, J., concurs.

Wendell L. Griffen, Judge, concurring. I am concerned with several aspects of this appeal. My first concern is related to the record in this case and the circuit court's written findings. Given evidence that appellee was supporting two other children, the circuit court's deviation from the child-support chart may have been proper; however, neither the circuit court nor appellant does an adequate job of establishing a record to base findings upon. The only evidence presented before the circuit court was the location of appellee's job and residence, the ages and names of appellee's two children, the fact that appellee carries insurance for all of his children, and (at best) an estimate of appellee's average weekly income. Based on this minimal evidence, the circuit court saw fit to deviate from the child-support chart.

Administrative Order Number 10 allows the circuit court to consider accustomed standard of living and support for other children. See § V, (a)(8) & (b)(7). However, there is no evidence concerning the standard of living in Eudora or any evidence supporting a conclusion that the standard of living justifies a downward deviation from the child-support chart. More importantly, while appellee stated that he was supporting two other children, there was no evidence presented concerning how much support he is providing or the conditions under which he is providing that support. I was initially inclined to vote to affirm the circuit court's order, but I simply could not do so with such a deficient record. On remand, if the circuit court chooses to deviate from the child-support chart - and this court's opinion should not be interpreted to mean that a deviation was improper - I pray that it produces a record adequate to support its decision.

However, I am more concerned with this court's holding in Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991). There, this court held that when a circuit court references the child-support chart, it must consider only the children involved in that case, not the total number of children parented by the child-support obligor. This court reasoned: "The result of applying the chart as the chancellor did here is that the amount of support for the one child was diluted, as the chart is structured so that the amount of support per child decreases in proportion to the number of added dependents." Id. at 123, 806 S.W.2d at 390. The structure of the child-support chart may have been a legitimate concern for the court; however, the Waldon holding operates on a fiction: it assumes that child-support obligors do not have other children to support. This may have been so in only a small minority of cases long ago, but with the often quoted statistic of a fifty-percent divorce rate, that minority is not so small today.

The Waldon court may have intended that children who do not live with both parents are adequately supported, but in supporting that goal, the court failed to consider other children the child-support obligor may be equally obligated to support. Instead of having "diluted" support for any children involved in child-support litigation, we now have "diluted" support for the children in the custody of the child-support obligor. Despite a law that treats all children equally, Waldon v. Waldon, supra, creates a class of children who receive more support simply because they unfortunately do not live with both of their parents. This is not to say that such children do not deserve support; however, they should not receive it at the expense of other children.

The Waldon holding even proved ineffective in that case. Despite finding "error," this court ultimately concluded that the child support awarded in that case was appropriate. In the proper case, the methodology employed by the circuit court in Waldon v. Waldon, supra (and the methodology allegedly applied in the present case), may be the proper one. Administrative Order Number 10 allows the circuit court to consider the support provided to other children as a proper deviation factor when calculating the child-support obligation. Therefore, why should an appellate court object to the use of a methodology that implicitly considers that factor in a child-support calculation, especially when that methodology can yield the proper support amount in many cases?

I urge my colleagues to reconsider our holding in Waldon v. Waldon, supra. The opinion may protect children in single-parent households; however, it does so at the expense of other children of child-support obligors. I also urge the Arkansas Supreme Court and the Arkansas General Assembly to consider this issue and provide circuit courts more guidance on this issue, as cases such as this are now a common reality, whatever may have been true in a former era.

1 A change in gross income of the payor in an amount equal to or more than twenty percent (20%) or more than one hundred dollars ($100) per month shall constitute a material change of circumstances sufficient to petition the court for modification of child support according to the family support chart after appropriate deductions. Ark. Code Ann. § 9-14-107 (a)(1) (Supp. 2003).