Davey Lee v. Patricia Lee and Office of Child Support Enforcement
Annotate this Case
Download PDF
Davey LEE v. Patricia LEE and Office of Child Support
Enforcement
CA05-1141
___ S.W.3d ___
Court of Appeals of Arkansas
Opinion delivered April 12, 2006
1.
CHILD SUPPORT – INCOME FROM THE CHILDREN ’S SPECIAL-NEEDS TRUST WAS NOT CREDITED
AGAINST APPELLANT ’S CHILD -SUPPORT OBLIGATION .
– The trial court did not err when it
held that the income from the special-needs trust that was created for the benefit of
appellant’s children would not be credited against appellant’s child-support obligation where
the funds of the special-needs trust were not earned by the appellant, nor a substitute for his
earnings because of a disability, but rather the result of an award of damages for the benefit
of the children, who were involved in an unfortunate accident, and where those funds would
be needed to support the children throughout the rest of their lives, and where testimony
clearly shows that appellant is able to work; therefore, appellant had a duty to support his
children.
2.
CHILD SUPPORT – FAILURE OF TRIAL COURT TO CONSIDER AN AGREEMENT BETWEEN FORMER
SPOUSES THAT APPELLANT NOT PAY CHILD SUPPORT WAS NOT ERROR . –
The trial court did
not err in failing to consider any agreement that appellant not pay child support because the
closure form relied on by appellant as evidence of the agreement between himself and his
former spouse for him not to pay child support did not, by itself, indicate an agreement, and
there was no proof that any agreement was ever presented to or approved by the trial court.
3.
CHILD SUPPORT – APPELLANT WAS NOT ENTITLED TO A DOWNWARD DEVIATION FROM THE
LEE v. LEE
Cite as ___ Ark. App. ___ (2006)
AMOUNT PROVIDED BY THE CHILD -SUPPORT CHART .
Page 2
– The trial court did not abuse its
discretion in setting appellant’s child-support obligation at $40 per week; the court of appeals
has previously rejected the argument that a noncustodial parent was entitled to a downward
deviation from the amount provided by the child-support chart on the ground that the amount
exceeds a child’s actual needs.
4.
APPEAL & ERROR – QUASHED SUBPOENA WAS NOT ERROR BECAUSE APPELLANT FAILED TO
SHOW PREJUDICE OR A DIFFERENT RESULT HAD HE RECEIVED THE REQUESTED INFORMATION
– The trial court did not err in quashing appellant’s subpoena for his children’s special-needs
trust records from the bank where appellant does not explain how he was prejudiced by the
inability to obtain the subpoenaed financial information, and where appellant cannot show
how the result would have been different had he received the requested information.
5.
MOTIONS – FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE NOT REQUIRED AS TO THE
MOTION TO QUASH THE SUBPOENA TO THE BANK . –
Because the motion to quash appellant’s
subpoena for his children’s special-needs trust records from the bank was governed by Ark.
R. Civ. P. 45, it was a “motion under these rules” within the meaning of Ark. R. Civ. P.
52(a); therefore, findings of fact and conclusions of law were not required and the trial court
did not err when it denied appellant’s motion seeking findings of fact as to the motion to
quash the subpoena to the bank.
Appeal from Union County Circuit Court, Michael Landers, Judge; affirmed on direct
appeal; affirmed on cross-appeal.
LEE v. LEE
Cite as ___ Ark. App. ___ (2006)
Page 3
Wm. C. Plouffe, Jr., for appellant/cross-appellee.
Joanie M. Ozment, for appellees/cross-appellant.
SAM BIRD , Judge.
Appellant Davey Lee appeals from the judgment of the Union County Circuit Court
holding him in contempt for nonpayment of child support, granting the Office of Child
Support Enforcement (OCSE) judgment for $7,132 in unpaid child support, and setting his
support obligation at $40 per week. The $40-per-week sum represented a downward
deviation from the $72-per-week sum provided by application of the child-support chart.
Appellant raises five points for reversal. OCSE cross-appeals from the trial court’s decision to
deviate downward from the child-support chart. We affirm on both direct appeal and crossappeal.
Appellant and appellee Patricia Lee were divorced by decree of the Union County
Chancery Court entered on July 25, 2000. The decree awarded Patricia custody of the parties’
two minor children and ordered appellant to pay child support of $58 per week.
In October 2001, the Lees’ minor children were injured in an explosion at Patricia’s
home. The Lees filed a suit seeking damages for the children in the Union County Circuit
Court. The case was settled, and a special-needs trust was created for the children with Liberty
Bank of Arkansas serving as trustee.
OCSE intervened in the divorce case and filed a motion seeking to modify appellant’s
LEE v. LEE
Cite as ___ Ark. App. ___ (2006)
Page 4
support obligation and to hold appellant in contempt for nonpayment of support. Appellant
denied the material allegation of the petition. Prior to trial, appellant issued a subpoena to the
bank seeking “financial account and/or trust records for the last three years concerning
Patricia A. Lee....” The bank filed a motion to quash the subpoena, alleging that the records
had been ordered sealed in the earlier tort case. Appellant asserted that the motion to quash
should be denied because the order sealing the records did not extend to the records sought.
After a hearing, the trial court granted the motion to quash by order entered on
February 9, 2005. The trial court found that the purpose of the subpoena was to determine
the assets and income available to the minor children and whether the bank had provided
appellant with a complete list of all income or payments received by Patricia or the minor
children. The court concluded that appellant had received all information necessary for the
court to make a determination as to whether there should be a deviation from the childsupport chart.
Appellant filed a “Motion for Reconsideration/New Trial and Motion for Findings
of Fact and Conclusions of Law” on February 22, 2005. The motion sought findings of fact
and conclusions of law regarding the following: the reasons that the records were sealed;
whether the sealing of the records applied to records subsequently created by the bank for
purposes of administering the special-needs trust; why the release of subsequently created
documents would violate the order sealing the records; how the bank met its burden of
showing good cause to quash the subpoena; how the records were not relevant to a requested
LEE v. LEE
Cite as ___ Ark. App. ___ (2006)
Page 5
deviation from the child-support chart; and how the release of the records would harm the
special-needs trust. On March 16, 2005, the trial court denied the motion as being without
merit and as untimely filed under Ark. R. Civ. P. 59(b).
At trial, appellant admitted that he had an arrearage of $12,132 but stated that he and
Patricia had an agreement whereby he would not have to pay child support. He said that she
told him that he “would not have to worry about child support anymore.” He identified a
document, signed by Patricia, requesting that the child-support case with OCSE be closed.
Appellant stated that he was working, earning $7 per hour for a forty-hour week. He stated
that he had a wife and two children, ages two and four, living at home with him. He also
admitted receiving $250,000 as his share of the settlement from the accident involving his
older children but stated that he did not put that money in the bank. He added that $150,000
in cash from that settlement, a vehicle, and a motorcycle were stolen from his home.
According to appellant, he paid $5,000 for food and clothing for the children. He
asserted that the children were removed from Patricia’s custody in 2002 due to her inability
to care for them after the explosion. Appellant also claimed that he should not have to pay
support for the period the children were not in Patricia’s custody. He said that, in addition
to the $5,000 previously mentioned, he paid more than $2,000 during the fifteen-month
period the children were in foster care. However, he did not have receipts for these payments.
He said that the children received $1,500 per month in disability from social security and
$6,000 per month from the special-needs trust. According to appellant, the trust was worth
LEE v. LEE
Cite as ___ Ark. App. ___ (2006)
Page 6
approximately $1 million and paid for all of the household expenses. He added that the
children’s total estate was valued between $15 to $17 million. He stated that he did not think
it was fair for him and his new family to suffer by his paying child support when the children’s
needs were met by the trust.
After the hearing, the trial court announced its findings from the bench and found that
appellant was previously ordered to pay child support of $58 per week and that appellant
admitted an arrearage of $12,132. The court gave appellant credit for $5,000 in previous
payments. This resulted in a net judgment of $7,132. The trial court found that appellant was
not entitled to credit for payments from the special-needs trust because it was not created with
funds provided by appellant. The trial court found, based on the child-support chart, that
appellant should pay $72 per week in current support. Because the children were receiving
$1,500 per month from social security and $6,000 per month from the special-needs trust, the
court concluded that a deviation from the child support was warranted and that such a
deviation would not adversely affect the children. In deciding to deviate from the chart, the
court also noted that appellant had two other biological children residing with him. The court
then set child support at $40 per week, plus $8 per week on the arrearage. An order based on
the trial court’s oral findings was entered on July 1, 2005. Appellant filed a timely notice of
appeal, and OCSE filed a timely notice of cross-appeal.
Appellant raises five points on appeal: (1) that the trial court erred when it held that
the income from the special-needs trust would not be credited against appellant’s support
LEE v. LEE
Cite as ___ Ark. App. ___ (2006)
Page 7
obligation; (2) that the trial court erred in not considering Patricia Lee’s request to close her
child-support case and that she did not have custody of the minor children for an extended
period of time, and that appellant detrimentally relied on Patricia Lee’s request in stopping
child support; (3) that the trial court erred in setting appellant’s support obligation at $40 per
week; (4) that the trial court erred in quashing a subpoena for the records of the trust from
the bank; and (5) that the trial court erred when it denied as untimely appellant’s motion
seeking findings of fact as to the trial court’s decision to grant the bank’s motion to quash. On
cross-appeal, OCSE argues that the trial court erred in deviating downward from the childsupport chart.
Child-support cases are reviewed de novo on the record. Paschal v. Paschal, 82 Ark.
App. 455, 117 S.W.3d 650 (2003). It is the ultimate task of the trial judge to determine the
expendable income of a child-support payor. Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310
(2003). This income may differ from income for tax purposes. See Brown v. Brown, 76 Ark.
App. 494, 68 S.W.3d 316 (2002). 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. McWhorter v.
McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Paschal, supra.
In setting the amount of child support that a noncustodial parent must pay, reference
to the most recent child-support chart is mandatory. Thompson v. Thompson, 63 Ark. App. 89,
974 S.W.2d 494 (1998).The family-support chart is more accurately identified as Section VII
of Supreme Court Administrative Order 10, In Re: Administrative Order No. 10: Arkansas Child
LEE v. LEE
Cite as ___ Ark. App. ___ (2006)
Page 8
Support Guidelines, 347 Ark. Appx. 1064 (2002). Administrative Order Number 10 sets out
the definition of income for child-support purposes and the manner of calculation of support.
It also lists factors that the court should consider when determining support at variance to the
chart. Although the court must consider the chart, it does not have to use the chart amount
if the circumstances of the parties indicate that another amount would be more appropriate.
Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); Stewart v. Winfrey, 308 Ark. 277, 824
S.W.2d 373 (1992); see also Ark. Code Ann. § 9-14-106 (2002).
Appellant first argues that the trial court erred in not crediting the amount that the
children receive from the special-needs trust against his support obligation. In Hinton v.
Hinton, 211 Ark. 159, 199 S.W.2d 591 (1947), the supreme court held that military allotments
assigned to a child could be credited toward the father’s child-support obligation. In Cash v.
Cash, 234 Ark. 603, 353 S.W.2d 348 (1962), the court held that a father was entitled to credit
social security retirement benefits received by the child against the father’s child-support
payments. In so holding, the court observed that such benefits were not gratuitous but earned,
and the court was persuaded that the equities tipped in favor of allowing credit to the father
under the circumstances of the case.1 However, in Thompson v. Thompson, 254 Ark. 881, 496
S.W.2d 425 (1973), the supreme court held that college educational benefits for a disabled
veteran’s children represented a specialty item to be used only under specified circumstances
1
See also, e.g., Office of Child Support Enforcement v. Harris, 87 Ark. App. 59, ___ S.W.3d
___ (2004); Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002); Cantrell v. Cantrell, 10
Ark. App. 357, 664 S.W.2d 493 (1984).
LEE v. LEE
Cite as ___ Ark. App. ___ (2006)
Page 9
and could not be credited toward the veteran’s child-support payments. Other courts have
held that a child’s receipt of social security benefits would not be considered in determining
the basic child-support obligation because they are not income to the obligor; however, the
trial court may consider such benefits in deciding whether to deviate from the guidelines. See
Ouellette v. Ouellette, 687 A.2d 242 (Me. 1996); Drummond v. State ex rel. Drummond, 350 Md.
502, 714 A.2d 163 (1998).
Here, appellant essentially is asking that the children be ordered to support themselves
from their own funds instead of his being required to do so. The funds were not earned by
appellant and are not a substitute for his earnings because of a disability. They are the result
of an award of damages for the benefit of the children, who were involved in an unfortunate
accident. These funds will be needed to support the children throughout the rest of their lives.
We do not know from the evidence presented the nature and extent of the children’s injuries
and what future needs they might have. A parent has a legal and moral duty to support and
educate his child and to provide the necessities of life even though the child has sufficient
property to do so. See Alcorn v. Alcorn, 183 Ark. 342, 35 S.W.2d 1027 (1931). Additionally,
in the present case, the testimony clearly shows that appellant is able to work. Therefore,
appellant has a duty to support his children. We affirm on this point.
In his second point, appellant argues that the trial court erred in not considering his
agreement with Patricia that he did not have to pay support or his assertion that the children
were not in her custody the entire period of time for which the arrearages were sought. We
LEE v. LEE
Cite as ___ Ark. App. ___ (2006)
Page 10
disagree.
Appellant relies on the closure form signed by Patricia as evidence that he and she had
an agreement for him not to pay child support. First, the form does not, by itself, indicate an
agreement. It was simply a request by Patricia that OCSE close her case. Appellant was not
involved in that request. However, it does tend to corroborate appellant’s testimony because
it indicates that Patricia no longer wanted OCSE to collect child support for her. Second, it
has long been the law in Arkansas that the interests of a minor, such as in receiving support,
cannot be compromised by a guardian without approval by the court. Davis v. Office of Child
Support Enforcement, 322 Ark. 352, 908 S.W.2d 649 (1995). Our supreme court has further
provided that:
It is not sufficient that a court be made aware of a compromise agreement and that it
is agreeable to the guardian; rather, the court must make a judicial act of investigation
into the merits of the compromise and into its benefits to the minor. Any judgment
by a court that compromises a minor’s interest without the requisite investigation is
void on its face.
Id. at 355-56, 908 S.W.2d at 651-52. Here, there is no proof that the “agreement” was ever
presented to or approved by the trial court. Therefore, we cannot say that the trial court erred
in failing to consider any agreement that appellant not pay child support.
As for appellant’s contention that he should not have to pay support for the period that
the children were in foster care, the trial court did give appellant credit for $5,000 in payments
even though he did not show any receipts. This sum exceeds the total amount of support due
for the period the children were in foster care. Therefore, appellant received the relief he is
LEE v. LEE
Cite as ___ Ark. App. ___ (2006)
Page 11
now requesting. We affirm on this point.
Because appellant’s third point and OCSE’s cross-appeal both concern the ultimate
amount of appellant’s support obligation, we discuss them together. Both points assert that the
trial court erred in setting appellant’s support obligation at $40 per week. Appellant argues that
he should not have to pay any support because the children were receiving $1,500 per month
from social security and $6,000 from the trust, and OCSE argues that the trial court erred in
considering the children’s social security benefits and the distribution from the trust in
deviating from the child-support chart.
Section V of Arkansas Supreme Court Administrative Order No. 10 sets forth the
following factors to be considered when deviating from the amount set by the chart: food,
shelter and utilities, clothing, medical expenses, educational expenses, dental expenses, child
care (including day care or other expenses for supervision of children necessary for the
custodial parent to work), accustomed standard of living, recreation, insurance, transportation
expenses, and other income or assets available to support the child from whatever source.
Section V then lists what are called additional factors and include the procurement and
maintenance of life insurance, health insurance, dental insurance for the children’s benefit; the
provision or payment of necessary medical, dental, optical, psychological or counseling
expenses of the children; the creation or maintenance of a trust fund for the children; the
provision or payment of special-education needs or expenses of the child; the provision or
payment of day care for a child; the extraordinary time spent with the noncustodial parent,
LEE v. LEE
Cite as ___ Ark. App. ___ (2006)
Page 12
or shared or joint custody arrangements; the support required and given by a payor for
dependent children, even in the absence of a court order; and where the amount of child
support indicated by the chart is less than the normal costs of child care.
Our supreme court has held that state courts are prohibited by federal law from
ordering child-support payments from SSI benefits. Davie v. Office of Child Support Enforcement,
349 Ark. 187, 76 S.W.3d 873 (2002); Davis v. Office of Child Support Enforcement, 341 Ark.
349, 20 S.W.3d 273 (2000). However, while the supreme court has held that child support
cannot be ordered paid from SSI benefits, the supreme court has not held that a trial court
cannot consider those benefits in determining whether to deviate from the child-support chart.
The guidelines specifically allow consideration of “other income or assets available to support
the child from whatever source” and the creation of a trust for the children as factors in
deciding to deviate from the child-support chart. See Section V, supra.
On this point, appellant repeats much of his argument that he is entitled to credit for
the full amount the children receive from social security. This court has rejected the argument
that a noncustodial parent is entitled to a downward deviation from the child-support amount
provided by the child-support chart on the ground that the amount exceeds a child’s actual
needs. Ceola v. Burnham, 84 Ark. App. 269, 139 S.W.3d 150 (2003). The amount of child
support lies within the discretion of the court and the court’s findings will not be disturbed
on appeal, absent a showing of an abuse of discretion. Id. We cannot say that the trial court
abused its discretion in setting appellant’s support obligation at $40 per week.
LEE v. LEE
Cite as ___ Ark. App. ___ (2006)
Page 13
Appellant contends as his fourth point that the trial court erred in quashing a subpoena
for the trust records from the bank. It is well established law that a trial court has broad
discretion in matters pertaining to discovery, and the exercise of that discretion will not be
reversed by this court absent an abuse of discretion that is prejudicial to the appealing party.
Ballard v. Martin, 349 Ark. 564, 79 S.W.3d 838 (2002). Much of appellant’s argument is
devoted to the proposition that the order sealing the settlement records does not extend to
records created after the settlement for the purpose of administering the trust. Even if
appellant is correct in this assertion, he does not explain how he was prejudiced by the
inability to obtain the subpoenaed financial information. The issue before the trial court to
which the requested information was relevant was a deviation in the amount of child support
to be paid. The trial court granted the requested deviation, based in part on appellant’s
testimony that the children received $6,000 per month from the special-needs trust. Appellant
cannot show how the result would have been different had he received the requested
information. We will not reverse without a showing of prejudice. Carton v. Missouri Pac.
R.R., 315 Ark. 5, 865 S.W.2d 635 (1993).
In his fifth point, appellant argues that the trial court erred when it denied as untimely
his motion seeking findings of fact as to the motion to quash the subpoena to the bank. The
order granting the motion to quash was filed on February 9, 2005, and appellant filed his
“Motion for Reconsideration/New Trial and Motion for Findings of Fact and Conclusions
of Law” on February 22, 2005. On March 16, 2005, the trial court denied the motion as
LEE v. LEE
Cite as ___ Ark. App. ___ (2006)
Page 14
being both without merit and untimely filed under Ark. R. Civ. P. 59(b). Citing Ark. R.
Civ. P. 6(a), appellant argues that the motion was timely. A short answer to this point is that,
by the plain terms of Ark. R. Civ. P. 52(a), findings of fact and conclusions of law are
unnecessary on decisions of motions under the rules. Subpoenas are governed by Ark. R. Civ.
P. 45. That rule, in subsection (b)(1), provides that the court, upon motion made prior to the
time specified in the subpoena for compliance, may quash or modify the subpoena if it is
unreasonable or oppressive. Therefore, the motion to quash was a “motion under these rules”
within the meaning of Rule 52(a), and findings of fact and conclusions of law are not
required.
Affirmed.
N EAL and B AKER, JJ., agree.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.