Cynthia Lemons Grady v. John C. Lemons

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CYNTHIA LEMONS GRADY

APPELLANT

V.

JOHN C. LEMONS APPELLEE

CA 05-446

January 25, 2006

APPEAL FROM THE HOWARD

COUNTY CIRCUIT COURT

[DR-01-61]

HONORABLE CHARLES A.

YEARGAN, CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

The parties in this case were divorced in 2001. In the divorce decree, the trial judge awarded the parties joint custody of their two minor children, "with [appellant Cynthia Lemons] having primary custody during the school months and [appellee John Lemons] having primary custody during the summer period from one week to the day after school is out until one week to the day before school resumes in the fall." The decree set out visitation in accordance with the trial court's standard guidelines while the children were in the primary custody of the other party. Regarding child support, the decree provided, "During the period of time [appellant] has primary custody of the children, the [appellee] shall pay $101.00 per week child support ... and during the times [appellee] has primary custody of the children the [appellant] shall pay $87.00 per week as child support ...." Subsequently, the parties reiterated this arrangement in an agreed order filed of record on March 12, 2002, which stated, "[C]hild support and visitation arrangements heretofore entered by this Court should remain in effect ...."

On October 12, 2004, appellant filed a motion to modify child support, alleging a material change in circumstances since the entry of the 2001 divorce decree and seeking modification of child-support in accordance with the provisions of Arkansas Supreme Court Administrative Order No. 10. Appellant also sought an award of her attorney's fees for bringing the action. In his response to appellant's motion to modify, appellee asked that the trial court adjust his child-support obligation in accordance with his current income and with Administrative Order No. 10, and he also asked the trial court to adjust appellant's child-support obligation in accordance with her current income and with Administrative Order No. 10. Appellee also requested his attorney's fees.

A hearing was held on January 5, 2005, on the parties' motions to modify child support.1 After hearing testimony from the parties and arguments from their counsel, the trial judge made the following ruling:

First of all, I don't show any material change of circumstances shown, so I'm not going to change anything about joint custody or joint custody arrangement.

Ms. Alford, Ms. Gunter, neither one of y'all were in the, what I would call a knock down, drag out, divorce custody situation that these folks had and went through, and it was very emotional for both of them, as you can tell by the writing on the docket sheet by the Court. Not one time but about three different times. These folks had a very volatile situation, as I remember it correctly.

The Court tried to be as judicious and equitable with the parties as possible by awarding joint custody and softening the blow to one or helping the other one, however, you want to look at it, but trying to be fair to both parties because they indicated they wanted to [be] a part of the children's lives as much as possible. And the Court did everything it could to accommodate that with the possibility and

understanding that the children need a stable environment, as far as schooling, and that's why the Court entered its ruling as it did, as I recall.

Now that's been three years ago now, and that's what my memory serves me correctly from the docket entries. So I'm not going to change any joint custody or any arrangement like that because that's why I did that to be fair to both of them. And to be fair to both of them required both of them to pay child support.

The trial court ordered that appellee's child-support obligation be increased to $140 per week, and ordered that appellant's child-support obligation be increased to $95 per week. The trial court further ordered that each party bear the cost of their attorney's fees. At the close of the hearing, the trial court again stated, "I just don't see any major change of circumstances that would make a change from what I did back in 2002."

Appellant now brings this appeal, arguing that Administrative Order No. 10 is mandatory and that the trial court erred in ordering her to pay child support during the summer instead of abating appellee's child support by fifty percent as permitted by Administrative Order No. 10, and that the trial court abused its discretion in refusing to award her an attorney's fee. We affirm.

In her first argument, appellant argues that she should not be required to pay appellee child support during his summer "visitation" and that to order her to do so is in violation of Section VI of Administrative Order No. 10. Though she acknowledges that Administrative Order No. 10 provides for additional factors that may warrant adjustments to child-support obligations, including joint-custody arrangements, she argues that appellee really does not "share" custody of the children.

However, we are unable to address appellant's argument. The parties are joint custodians. The joint-custody provisions and the child-support payments set forth in the divorce decree were not appealed; in fact, the parties subsequently entered into an agreed order on March 12, 2002, stating that "child support and visitation arrangements heretofore entered by this Court should remain in effect." Appellant now attempts to argue that the parties are joint custodians in name only but not in fact; however, she did not make this argument below, even when the trial judge clearly stated on two different occasions that he found no material change in circumstances to alter the joint-custody arrangement.

We do agree with appellant that reference to Administrative Order No. 10 is mandatory, and we hold that the trial judge did properly refer to it in setting the amount of child support for each joint custodian. Neither parent argues that the amounts set were not within the guidelines of the child-support chart.

Appellant's second argument is that the trial court erred in refusing to award her attorney's fees. We find appellant's argument unavailing. An award of attorney's fees is subject to an abuse-of-discretion standard, see Rogers v. Rogers, 83 Ark. App. 206, 121 S.W.3d 510 (2003), and we cannot say that the trial court's order that each party bear its own attorney's fees was an abuse of that discretion.

Affirmed.

Hart, J., agrees.

Baker, J., concurs.

1 On the day of the hearing, appellee filed a separate motion seeking a change of custody, but it was not heard and that issue is not before us in this appeal.