Robert C. Goldtrap v. Cara Goldtrap Hewett

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CA 05-126

September 7, 2005







David M. Glover, Judge

Appellant, Robert C. Goldtrap, and appellee, Cara Goldtrap/Hewett, were divorced in 2001. They have three children. Appellant was ordered to pay $1500 per month in child support. Appellee subsequently filed a motion to modify that amount based upon her assertion that appellant's income had increased substantially enough to warrant an increase in child support. Appellant responded, denying that his income had increased substantially. The motion was heard on September 1, 2004, and the trial court ruled in appellee's favor, increasing appellant's child-support obligation to $1878 per month.

Appellant's sole contention on appeal is that the trial court erred in calculating the amount of child support because it used only the 2003 federal tax return, and did not take into consideration the 2002 return or the quarterly estimates for 2004, thereby ignoring the requirements of Administrative Order Number 10. Because this argument was not raised below, we affirm.

Our supreme court explained the standard of review for appeals from child-support orders in McWhorter v. McWhorter, 346 Ark. 475, 480, 58 S.W.3d 840, 843 (2001):

We review chancery cases de novo on the record, and we will not reverse a finding of fact by the chancery court unless it is clearly erroneous. Ark. R. Civ. P. 52(a); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). In reviewing a chancery court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Hunt v. Hunt, 341 Ark. 173, [15 S.W.3d 334]. As a rule, when the amount of child support is at issue, we will not reverse the chancellor absent an abuse of discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). However, a chancellor's conclusion of law is given no deference on appeal. City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).

When awarding child support, the trial judge is required to refer to the child-support chart, and the amount specified in the chart is presumed to be reasonable. Id. Section III c. of Administrative Order No. 10 provides in pertinent part:

For self-employed payors, support shall be calculated based on the last two years' federal and state income tax returns and the quarterly estimates for the current year. A self-employed payor's income should include contributions made to retirement plans, alimony paid, and self-employed health insurance paid; this figure appears on line 22 of the current federal income tax form. Depreciation should be allowed as a deduction only to the extent that it reflects actual decrease in value of an asset. Also, the court shall consider the amount the payor is capable of earning or a net worth approach based on property, life-style, etc.

(Emphasis added.) Moreover, this court noted in Delacey v. Delacey, 85 Ark. App. 419, 427, 155 S.W.3d 701, 705-06 (2004), that Administrative Order No. 10 requires "use of a two-year averaging method in the case of self-employed payors."

The problem with appellant's argument, however, is that he did not make it below. At the hearing in this case there was an extensive colloquy among the court, the attorneys, and appellant concerning appellant's income, deductions, and other financial information. The discussion was focused primarily upon the 2003 return and the income reflected therein. Moreover, the court made actual calculations to come up with a figure for child-support payments, with both attorneys and appellant fully engaged in the discussion. Infact, the court stated, "I'm going to go with the $109,000 figure. Because I've got that already calculated, ...." The $109,000 figure, rounded off, came from line 22 of the 2003 federal income-tax return.

It is well settled that this court will not consider arguments raised for the first time on appeal. McWhorter v. McWhorter, 351 Ark. 622, 97 S.W.3d 408 (2003). Appellant's counsel was present and actively participating in the court's calculations concerning child support, yet never asked the court to average the two years together.


Griffen and Roaf, JJ., agree.