Thomas S. Leslie v. Sharron F. Leslie

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

THOMAS S. LESLIE

APPELLANT

V.

SHARRON F. LESLIE

APPELLEE

CA 05-627

February 8, 2006

APPEAL FROM THE BOONE COUNTY CIRCUIT COURT

[NO. DR-92-395-2]

HONORABLE GARY BERT ISBELL,

JUDGE

AFFIRMED

Terry Crabtree, Judge

The case of Leslie v. Leslie, CA-03-37 was decided by this court on September 3, 2003, not designated for publication. In that decision, we found that there had been a change of circumstance sufficient to state a cause of action for the modification of child support, and we affirmed the trial court's retroactive modification to the support order. However, in setting support, the trial court considered only the figures from appellant's year 2000 income tax return. We remanded the case for the trial court "to determine the amount of Thomas's expendable income for the years 2000 and 2001 by taking into consideration his tax returns for the appropriate years." We further directed that "in keeping with the administrative order, the court may also consider the amount Thomas is capable of earning or a net worth approach."

After a hearing, the trial court entered its judgment on February 17, 2005. The trial court reviewed the tax years 1999, 2000, and 2001, and found that in each of those years appellant's tax returns reflected a significant farm loss. The court cited the applicable child support guidelines, In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. ___ (January 31, 2002), specifically section III (c): "Depreciation should be allowed as a deduction only to the extent that it reflects actual decrease in value of the asset." Given appellant's primary occupation as a medical doctor, the court determined that the "car and truck expenses" and "depreciation and Section 179 expense deduction not claimed elsewhere" did not rise to the critical level of an actual decrease in value of an asset. The court then proceeded to calculate appellant's expendable income disallowing the depreciation expenses. This appeal followed.

Appellant raises two points on appeal. First, he argues that the trial court exceeded its authority under our earlier mandate by disallowing certain depreciation expenses. Secondly, he asserts there was not an evidentiary basis for the trial court to find that the claimed depreciation did not reflect an actual decrease in value. We disagree with both points and affirm.

A mandate is the official notice of the appellate court's action, directed to the court below, advising that court of the action taken by the appellate court and directing the lower court to have the appellate court's judgment duly recognized, obeyed, and executed. Turner v. Northwest Arkansas Neurosurgery, ___ Ark. App. ___, ___ S.W.3d. ___ (June 15, 2005), citing Dolphin v. Wilson, 335 Ark. 113, 983 S.W.2d 113 (1998). A trial court must give deference to an appellate court's mandate, implementing both the letter and spirit of the mandate, given the appellate court's opinion and the circumstances it embraces. Id. In the case at bar, we agreed with appellant's contention on appeal and remanded so that the trial court could "determine the amount of Thomas's expendable income for the years 2000 and 2001 by taking into consideration his tax returns for the appropriate years. In keeping with the administrative order, the court may also consider the amount Thomas is capable of earning or a net worth approach." It was our intent for the trial court to comply with the administrative order by examining appellant's tax returns and to determine his expendable income. By performing a detailed analysis of appellant's tax returns and applying the standards set forth by the administrative order, the trial court was following both the letter and the spirit of our mandate.

Appellant next argues that there was insufficient evidence to support the trial court's decision to disallow the depreciation deductions. In reviewing domestic relations cases, this court considers the evidence de novo, but will not reverse a trial judge's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Tucker v. Tucker, 74 Ark. App. 316, 49 S.W.3d 145 (2001). The amount of child support lies within the sound discretion of the trial judge, and the judge's finding will not be reversed absent an abuse of discretion. McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 1 (2000). It is proper for the trial judge to consider whether a depreciation deduction should be allowed in calculating expendable income. Stepp v. Gray, 58 Ark. App. 229, 947 S.W.2d 798 (1997). When considering the farm loss deductions, the trial court noted that appellant's primary occupation is a medical doctor. Clearly, the court determined that the depreciation did not affect the expendable income appellant had available from which to pay child support. Moreover, given the public policy to construe "income" broadly, it was appellant's burden to prove entitlement to the deduction. We cannot find that it was an abuse of discretion for the court to so find.

Affirmed.

Gladwin and Robbins, JJ., agree.