Carol Williams v. Mickey Nesbitt
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Carol WILLIAMS v. Mickey NESBITT
CA05-864
__ S. W.3d ___
Court of Appeals of Arkansas
Opinion delivered April 19, 2006
1.
F AMILY LAW – CHILD SUPPORT – EXCESSIVE WITHHOLDING OBSCURED THE AMOUNT OF
ACTUAL EXPENDABLE INCOME AVAILABLE FOR SUPPORT.– Where appellee had caused
an excessive amount of his paycheck to be withheld in order to pay substantial
amounts of additional taxes to the IRS, the trial court erred in finding that there had
not been a material change in his income and in ignoring the withholding tables and
simply accepting appellee’s assertion that it was to avoid having to pay additional
money in taxes; in doing so, he obscured the amount of actual expendable income that
he had available for support, and it was appropriate to remand this case to the trial
court for further consideration of the federal-income-tax withholding issue.
2.
A PPEAL & ERROR – APPELLANT DID NOT PROFFER EXCLUDED EVIDENCE FOR APPELLATE
REVIEW – TRIAL COURT WAS FREE TO BELIEVE OR DISBELIEVE HER TESTIMONY.– Where
the trial court excluded appellant’s written summary of medical expenses that she
claimed to have incurred on behalf of her minor child, and she did not actually
challenge the trial court’s decision to exclude her summary, and furthermore failed
to proffer either the summary or the actual bills that she had received for the minor
child’s medical care, which left only her testimony concerning the amount of
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Page 2
expenditures, the appellate court declined to reverse on this point as the trial court was
free to believe or disbelieve her testimony.
Appeal from Lonoke County Circuit Court; Phillip T. Whiteaker, Judge; affirmed in
part; reversed in part and remanded.
Martin and O’Bryan, by: Joe O’Bryan, for appellant.
Flynn Law Firm, by: John Alexander Flynn, for appellee.
J OSEPHINE L INKER H ART, Judge.
Carol Williams appeals from an order of the Lonoke County Circuit Court denying
her motion for an increase in child support and for enforcement of a prior order requiring the
parties to split the cost of unreimbursed medical expenses incurred on behalf of their minor
child.
We affirm in part and reverse in part and remand.
In an order establishing paternity that was filed for record on December 10, 2002,
Mickey Nesbitt was found to have a weekly net income of $1086.00. On December 29,
2003, Williams filed a motion to modify her child support. Ultimately, this motion was heard
on January 12, 2005. Williams introduced into evidence a 2002 W-2 form that showed that
Nesbitt had gross earnings of $53,060.19 from Ron Campbell Ford, Inc., and a 2002 1099-R
that indicated that he had $25,068.00 in retirement pay from the United States Navy.
Williams also introduced a 2003 1099-R that indicated that Nesbitt’s retirement earnings had
risen to $25,416, and documentation from Campbell Ford that stated Nesbitt’s gross earnings
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for 2004 were $55,202.45. The latter document also stated that Nesbitt had elected to have
withheld from his pay $15,950.12 for federal taxes.
Nesbitt acknowledged that he had more money withheld from his earnings at
Campbell Ford than was required by the withholding tables promulgated by the Internal
Revenue Service because in 2002 and 2003, he had to pay substantial amounts of additional
taxes to the IRS, due in part to the Navy’s failure to withhold a portion of his retirement pay
for taxes.
In the same proceeding, Williams also sought reimbursement for half of the
unreimbursed medical expenses that she incurred on behalf of the minor child. However,
when she attempted to introduce her handwritten records of her expenditures, Nesbitt
objected and the records were subsequently excluded from evidence. Williams did, however,
note that she had received some money from Nesbitt toward these expenses, including an $89
check that Nesbitt had given her that morning.
The trial judge found that Williams did not prove a material change of circumstances
and denied her motion to increase child support. He also denied Williams’s motion for
reimbursement for medical expenses, finding that she had not availed herself of “cost-free
medical care” available at the Air Force base in Jacksonville and that she should be responsible
for the expenses.
Williams first argues that the trial court erred in finding that there had not been a
material change in Nesbitt’s income because he “artificially” reduced his “disposable income”
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by withholding an excessive amount from his earnings at Campbell Ford. She notes that the
federal and state withholding tables indicate that Nesbitt should have had considerably less
withheld from his pay, and therefore, he had more income with which to pay child support.
We agree.
A trial court’s ruling on child-support issues is reviewed de novo by this court, and the
trial court's findings are not disturbed unless they are clearly erroneous. Montgomery v. Bolton,
349 Ark. 460, 79 S.W.3d 354 (2002). In reviewing a trial court’s findings, we give due
deference to the court’s superior position to determine the credibility of the witnesses and the
weight to be accorded to their testimony. Id. As a rule, when the amount of child support
is at issue, we will not reverse absent an abuse of discretion. Id. However, a trial judge’s
conclusion of law is given no deference on appeal. Id.
For the purposes of calculating a child-support obligation, under Section II of
Administrative Order Number 10, income is defined as:
any form of payment, periodic or otherwise, due to an individual, regardless of
source, including wages, salaries, commissions, bonuses, workers’
compensation, disability, payments pursuant to a pension or retirement
program, and interest less proper deductions for:
1. Federal and state income tax;
2. Withholding for Social Security (FICA), Medicare, and railroad
retirement;
3. Medical insurance paid for dependent children; and
4. Presently paid support for other dependents by court order.
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Accordingly, this case turns on what is meant by a “proper deduction.” In Montgomery v.
Bolton, supra, the supreme court stated that in deciding whether a deduction qualifies, the
ultimate objective is to determine how much “expendable income” a payor has available to
support the child. See also McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001). It
is reversible error to mechanically look at tax documents to determine support rather than the
actual expendable income that a payor has available. Stepp v. Gray, 58 Ark. App. 229, 947
S.W.2d 798 (1997).
It is apparent from the record that Nesbitt had caused an excessive amount of his
paycheck to be withheld, ostensibly for federal taxes. We believe that the trial court erred in
ignoring the withholding tables and simply accepting Nesbitt’s assertion that it was to avoid
having to pay additional money in taxes. In doing so, he obscured the amount of actual
expendable income that he had available for support. Although this court has the power to
decide equity cases de novo on the record, we think it appropriate to remand this case to the
trial court for further consideration of the federal-income-tax withholding issue. See id.
Williams next argues that “the trial court had no reason to refuse to enforce its
previous order that [Nesbitt] should share in the costs of medical expenses for the child or to
terminate [her] right to recover the child’s medical expenses from [Nesbitt].” She asserts, and
the record established, that during her testimony she explained that she had the records in the
courtroom, but when the trial court excluded her written summary, the trial judge indicated
that he did not want to see them. Without citation of authority, Williams asserts that this
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action on the part of the trial court was an abuse of discretion. We do not find merit in this
argument.
We note that Williams does not actually challenge the trial court’s decision to exclude
her summary of the medical expenses that she claimed to have incurred on behalf of her
minor child. Furthermore, she has failed to proffer either the summary or the actual bills that
she had received for the minor child’s medical care. It is axiomatic that to preserve a
challenge to a ruling of the trial court excluding evidence, the appellant must proffer the
excluded evidence so that the appellate court can review the trial court’s decision, unless the
substance of the evidence is apparent from the context. Ark. R. Evid. 103(a)(2); Halford v.
State, 342 Ark. 80, 27 S.W.3d 346 (2000). Accordingly, we are left only with her testimony
concerning the amount of expenditures that she made for the child’s medical care, and the
trial court was free to believe or disbelieve her testimony.
When judging the trial court’s
findings in equity cases, we defer to the trial judge’s superior position to determine the
credibility of witnesses and the weight to be accorded to their testimony. Hill v. Hill, 84 Ark.
App. 132, 134 S.W.3d 6 (2003). Accordingly, we decline to reverse on this point.
Affirmed in part; reversed in part and remanded.
R OBBINS and G LOVER, JJ., agree.
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