Office of Child Support Enforcement v. Alexis Reed
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DAVID M. GLOVER, JUDGE
DIVISION IV
CA07-734
February 20, 2008
OFFICE OF CHILD SUPPORT
ENFORCEMENT
APPELLANT
v.
AN APPEAL FROM JEFFERSON
COUNTY CIRCUIT COURT
[No. E-89-446-3-5]
HONORABLE ROBERT WYATT,
CIRCUIT JUDGE
ALEXIS REED
APPELLEE
REVERSED and REMANDED
Office of Child Support Enforcement1 has appealed from a judgment entered against
it by the Jefferson County Circuit Court in a child-support dispute. For the reasons expressed
below, we reverse the judgment and remand.
Appellee, Alexis Reed, and Connie Reed were divorced in the Jefferson County
Chancery Court in 1990. Connie received custody of the children and Alexis was ordered to
pay child support. In 1993, Connie assigned her child-support rights to OCSE. On October 3,
2003, appellant moved for the court to find Alexis in contempt because he had accrued an
arrearage of $48,561.29. The court issued a contempt order on December 2, 2003. On
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The Office of Child Support Enforcement of the Revenue Division of the Department
of Finance and Administration was established to administer the state plan for child support
enforcement required under Title IV-D of the Social Security Act. See Ark. Code Ann. § 914-206 (Repl. 2002).
January 29, 2004, Alexis moved for an abatement of arrears, a change of custody, and child
support because the children had lived with him for most of the time since August 2001.
Alexis, Connie, and appellant’s counsel were present at the hearing. On July 27, 2004, the
circuit judge granted appellant a judgment of $29,998 against Alexis, giving him credit for the
time that the children had resided with him and allowing for the fact that one child had
reached the age of eighteen. The judge specifically reserved ruling on Connie’s obligation to
pay child support to Alexis.
In September 2004, Alexis was awarded a portion of a federal Thrift Savings Plan (TSP)
owned by his second wife, Shirley Reed, in his divorce from her in Missouri. On November
19, 2004, appellant obtained a writ of garnishment against any interest in the TSP to which
Alexis was entitled. Alexis asked the circuit court to suspend the writ pending a hearing
because it was entered without notification to him. In his letter to the court, Alexis stated that
he still wanted child support from Connie.
On July 8, 2005, after a hearing, the circuit court found the writ of garnishment
defective and set it aside. It reserved ruling on Alexis’s request for child support from Connie
and directed her to complete an affidavit of financial means within ten days. The court further
stated that the case would be reset for hearing on the following issues: (1) the writ of
garnishment against the TSP; (2) Alexis’s documentation for his child-support payments in
1997 and 1998; and (3) child support to be paid by Connie to Alexis.
Appellant sent another writ of garnishment to the TSP on July 12, 2005, and filed
“Allegations and Interrogatories,” stating that the TSP possessed money due to Alexis from
Shirley’s retirement benefits. In its supporting statement of facts, appellant said that Alexis was
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entitled to a lump-sum payment from the TSP in the amount of $43,099.34 as a result of his
divorce from Shirley. It attached a copy of that judgment. In its “Statement of Basis of
Defendant’s Right to Payment” filed July 28, 2005, appellant said that the party benefitting
from the writ of garnishment was Connie.
On October 6, 2005, appellant moved to keep the writ of garnishment in place
pending disbursement of the TSP funds, stating: “[Appellant] has received from Thrift Savings
Plan . . . a letter attached as Exhibit 3. This letter indicates that the account holder, Shirley
B. Reed, elected to withhold the entire amount of the disbursement for Federal tax purposes.
Therefore, no funds were disbursed to any party.” The attached letter from the TSP to
appellant stated:
Our records indicate that a court order submitted to the Thrift
Investment Board was determined to be effective to award $25,613.37 from
Ms. Reed’s TSP account to Arkansas Child Support Clearinghouse. Therefore,
on December 27, 2004, $.00 was paid to Arkansas Child Support Clearinghouse
and $25,613.37 was withheld for Federal taxes. We have enclosed a copy of
form W-4P submitted by Ms. Reed.
On May 18, 2006, appellant moved to dismiss its October 6, 2005 motion without
prejudice. The court granted the motion to dismiss. On April 23, 2007, Alexis filed a belated
response to appellant’s latest motion and asked for a hearing to resolve the child-support issue
“as it is quite feasible that the arrears owed Ms. Reed and the Child support requested by this
Defendant will possibly offset.” The court set the case for a hearing on May 14, 2007.
The abstract of this hearing demonstrates that the trial court did not understand that
Shirley, not Alexis, was the owner of the TSP; that the money was disbursed to pay her
federal taxes; or that the money was not disbursed pursuant to the writ of garnishment.
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Appellant’s attorney and Alexis unsuccessfully attempted to correct the misunderstanding. The
trial court stated that appellant had a duty to notify the TSP that the original writ of
garnishment was defective and had been set aside. It also stated: “[T]he money was taken by
a defective garnishment from the Office of Child Support Enforcement, I’m going to enter
judgment against the State of Arkansas Office of Child Support Enforcement and Connie
Reed, jointly and severally, in the amount of $25,613.37.” Appellant’s counsel then raised an
objection. On May 21, 2007, the trial judge entered judgment for Alexis in the amount of
$25,613.37 against appellant and Connie, jointly and severally. It found that $25,613.37 was
disbursed and that appellant had a duty to notify the administrator of the TSP that the writ
of garnishment was not valid.
Appellant filed a motion to reconsider on June 7, 2007, which stated:
1.
The State of Arkansas, Office of Child Support Enforcement (hereinafter
OCSE) has discovered evidence after reviewing the transcript which may not
have been presented clearly to the Court. That Defendant, Alexis Reed at one
period was married to a Shirley B. Reed, who as an employee for the Federal
Government had established a Thrift Savings Plan as part of her retirement
benefits. Alexis Reed and Shirley B. Reed were divorced on February 18,
2004. In a separate September 28, 2004 Judgment for Retirement Benefits
Order, the Circuit Court of Jackson County, Missouri (Case No. 03FC202013,
Division No. 33), granted Alexis Reed a portion of Shirley B. Reed’s Thrift
Savings Plan. See attached Exhibit A.
2.
Upon discovery of the lump sum that was about to be dispersed [sic] to the
Defendant, Alexis Reed, the OCSE attempted to garnish a portion of the
money to be applied towards the Defendant’s arrearage balance that was owed
on the OCSE v Alexis Reed E-1989-446-3-5 to custodial parent, Connie
Reed.
3.
The State of Arkansas, OCSE, did file a Writ of Garnishment, for the amount
Alexis Reed was granted in the divorce decree from Shirley B. Reed. The State
of Arkansas, issued the Writ of Garnishment for the purpose of collecting
payment for child support arrearages that were owed to Connie Reed.
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4.
That the State of Arkansas nor its Assignor, Connie Reed, never received any
funds from the Thrift Savings Plan. The Thrift Savings Plan Administrator
notified the State of Arkansas, that Shirley B. Reed had elected to use those
funds to pay federal taxes. Therefore, the State of Arkansas and Connie Reed
were not unjustly enriched. There was no evidence to prove that the State of
Arkansas and its Assignor, Connie Reed received any moneys owed to Alexis
Reed.
5.
The Defendant was given a letter by the Thrift Savings Plan on July 20, 2005
that stated that the money was paid to the Office of Child Support
Enforcement Clearinghouse (see attached Exhibit B), but after inquiry a
subsequent letter was sent to OCSE stating that $0.00 was sent to the OCSE
Clearinghouse and that $25,613.37 was withheld for Federal taxes by Shirley B.
Reed (See attached Exhibit C & D).
6.
That the Court’s finding May 14, 2007, that the State of Arkansas was the
responsible party for allowing the funds in the Thrift Savings Plan to be
disbursed is not supported by any evidence. The Defendant’s cause of action is
against Shirley B. Reed, not OCSE.
7.
On another note, the disbursement of the money was actually made in
December of 2004. The Circuit Court of Jefferson County entered an Order
to Dismiss the Writ of Garnishment on July 8, 2005.
In support of its motion, appellant attached a copy of the July 20, 2005 letter from the
TSP to Alexis erroneously stating that $25,613.37 had been paid to appellant. It also attached
a copy of the TSP’s August 3, 2005 letter stating that nothing was paid to appellant and that
$25,613.37 was withheld for federal taxes, along with a copy of Shirley’s 2004 Form W-4P.
On June 19, 2007, appellant filed a notice of appeal from the May 21, 2007 judgment.
Appellant makes three arguments on appeal: (1) the trial court erred in finding that
appellant had a duty to inform the TSP to disregard the writ of garnishment because the
money could be disbursed at the option of the plan’s owner, and the money had already been
disbursed before the writ was found to be defective; (2) the trial court committed error in
finding appellant responsible for $25,613.37 because neither it nor Connie received the
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money; and (3) sovereign immunity applies. We will not address the sovereign-immunity issue
because appellant neither raised it to the trial court nor received a ruling on it. An appellant
cannot make an argument for the first time on appeal. Morgan v. Chandler, 367 Ark. 430, __
S.W.3d __ (2006). We will not reach the merits of an argument when the trial court has not
ruled on the issue. Id.
Our standard of review for an appeal from a child-support order is de novo on the
record, and we will not reverse a finding of fact by the circuit court unless it is clearly
erroneous. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005). A finding is clearly erroneous
when, although there is evidence to support it, the reviewing court on the entire evidence
is left with a firm conviction that a mistake has been committed. Royal Oaks Vista, L.L.C. v.
Maddox, ___ Ark. ___, ___ S.W.3d ___ (Jan. 17, 2008). This is such a case.
No one requested the relief contained in this judgment, which was based upon the trial
court’s erroneous belief that the TSP belonged to Alexis; that the money was disbursed from
the TSP under a writ of garnishment; and that appellant and Connie benefitted from the
disbursement. The court commented several times during the hearing that the money was
disbursed because appellant had applied a defective writ of garnishment. The money,
however, was not disbursed pursuant to the writ of garnishment but instead was used to pay
Shirley Reed’s 2004 federal taxes. The first writ of garnishment was not found to be defective
until seven months after the money from the TSP was disbursed. Additionally, it is clear from
this record that neither appellant nor Connie received the money. For these reasons, we have
no choice but to reverse and remand.
Reversed and remanded.
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PITTMAN, C.J., and MILLER, J., agree.
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