Leon Thomas Fusher v. Shelly Ann Fusher
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ARKANSAS COURT OF APPEALS
DIVISION III
No. CA08-117
LEON THOMAS FUSHER
Opinion Delivered
September 17, 2008
APPELLANT
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
[E2001-381(III)]
V.
SHELLY ANN FUSHER
APPELLEE
HONORABLE JIM D. SPEARS,
JUDGE
AFFIRMED
WENDELL GRIFFEN, Judge
1.
FAMILY
LAW
– CHILD SUPPORT – MALPRACTICE SETTLEMENT WAS CONSIDERED
INCOME.– The circuit court did not abuse its discretion in determining that appellant’s
net malpractice settlement was income for child-support purposes; income for childsupport purposes is defined by Administrative Order No. 10 s “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”; and, sums paid due to
money judgments are considered income for child-support purposes.
2.
FAMILY
LAW
–
CHILD SUPPORT
–
PROFFERED EVIDENCE REGARDING TERMS OF
SETTLEMENT WAS PROPERLY EXCLUDED .– The
circuit court did not err in excluding
appellant’s proffered evidence that one-half of the settlement was paid for loss of
consortium; in the absence of a settlement apportioning payment for loss of
consortium, the proffered evidence did not have any tendency to prove that any
portion of the settlement was issued for that element of damages; the terms of the
settlement belied appellant’s claim that any portion of the settlement was specifically
based on his wife’s loss of consortium.
Appeal from Sebastian Circuit Court; Jim D. Spears, Judge; affirmed.
Robert S. Blatt, for appellant.
Kevin Hickey, for appellee.
Leon Thomas Fusher appeals from a judgment awarding his ex-wife, appellee Shelly
Ann Fusher, child support of $52,500, based on a $247,858.17 lump-sum malpractice
settlement that he received. He argues that the circuit court erred in excluding evidence that
he received the settlement as payment for pain, suffering, and disability, and evidence that
one-half of the settlement was paid to his current wife for loss of consortium. Relatedly, he
argues that the circuit court erred in counting the entire malpractice settlement as income for
child-support purposes. We disagree and affirm the circuit court’s order.
The parties in this case were divorced in 2001, and appellant was ordered to pay child
support for their two minor children. Appellee subsequently filed a motion to modify
appellant’s child-support obligation, alleging that he had received a settlement in a lawsuit,
which constituted a change in circumstances warranting a lump-sum payment of child
support.
A hearing on appellee’s motion was held, during which appellant testified that he
received a net settlement of $247,858. Appellant’s attorney conceded that the settlement was
simply a lump-sum settlement that did not apportion damages for pain and suffering or future
medical expenses “or anything else.” The circuit court rejected as irrelevant appellant’s
numerous proffers of evidence to prove that the medical-malpractice settlement was not
income but compensated him for pain, suffering, and disability; that his medical bills totaled
approximately $644,000; that his current wife was required to sign the settlement release; that
the settlement was paid jointly to him and his wife due to her loss of consortium; and that she
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received one-half of the proceeds.
The circuit court determined that the entire amount of the net settlement, $247,858,
was income for child-support purposes. It awarded 21% of that amount, or $52,500, as a onetime child-support payment for the parties’ two children. Appellant filed a motion for
reconsideration only of the court’s determination that the entire amount of the settlement was
income for child-support purposes. He attached a copy of the settlement check showing that
the check was made payable to him and his wife, and he requested that the court enter
judgment for appellee in the amount of $26,250 (one-half of the judgment ordered). The
circuit court summarily denied the motion, and this appeal from only the original judgment
followed.1
The issues in this case are, whether the circuit court erred in excluding the proffered
evidence regarding the nature of the settlement and in determining that the entire amount of
the settlement was income for child-support purposes. As these issues are closely related, we
address them together.
Child-support cases are reviewed de novo on the record. See Cole v. Cole, 89 Ark. App.
134, 201 S.W.3d 21 (2005). It is the ultimate task of the trial judge to determine the
expendable income of a child-support payor. Id. When the amount of child support is at
issue, we will not reverse the trial judge absent an abuse of discretion. Id.
Income for child-support purposes is defined by Administrative Order Number 10 as
1
In his brief, appellant requested oral argument, but none was scheduled because he
failed to file a contemporaneous request, separate from his brief, with the Arkansas
Supreme Court Clerk’s Office. See Ark. Sup. Ct. R. 5-1(a).
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“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.” (Emphasis added.) The definition of
income under Order No. 10 is intentionally broad and is designed to encompass the widest
range of sources consistent with this State's policy to broadly interpret income for the benefit
of the child. See Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002).
[1] Sums paid due to money judgments are considered income for child-support
purposes. See Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005) (awarding child support
based on money judgments received in a malicious prosecution suit and assault suit); Stuart
v. Stuart, 99 Ark. App. 358, ___ S.W.3d. ___ (2007) (holding that proceeds from a classaction medical-malpractice suit, when received, would constitute income for child-support
purposes). Given these authorities, the circuit court here did not abuse its discretion in
determining that the appellant’s net malpractice settlement was income for child-support
purposes.
To the extent that appellant argues the malpractice-settlement proceeds should not be
considered income because the money was paid to compensate for his disability, that
argument fails because disability is expressly listed as a source of income in Order No. 10.
Moreover, appellant seemingly concedes that whatever portion of the settlement that was not
apportioned for loss of consortium is income for child-support purposes. Because appellant
did not ask the circuit court to reconsider its finding that his portion of the settlement was
income for child-support purposes, the real issue is whether the circuit court erred in
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excluding the proffered evidence that one-half of the settlement was paid for loss of
consortium.
We agree that if any part of the settlement was paid for loss of consortium, it would
have been error for the circuit court to base the child-support award on the entire settlement.
Appellant testified, without objection, that his wife was required to sign the settlement
documents. He also proffered additional evidence to prove that his wife was required to
provide extensive care for him during his recovery; that the check was issued to both of them;
and that he deposited one-half of the proceeds into his wife’s separate bank account.2
[2] We hold that the circuit court did not err in excluding the proffered evidence. In
the absence of a settlement apportioning payment for loss of consortium, the proffered
evidence did not have any tendency to prove that any portion of the settlement was issued
for that element of damages. See Ark. R. Evid. 401. The settlement documents are not part
of the record before this court, so we defer to the circuit court’s observations regarding the
terms of the settlement. The circuit court observed, and appellant’s attorney conceded, that
the settlement “agreed to settle a case for with [sic] no attribution, no injury award that sets
amount of pain and suffering or future medical or anything else.” (Emphasis added.)
The circuit court also observed, without objection, that the “settlement documents”
did not set forth specific elements of damage for which the settlement was made.
2
The settlement check was addressed to appellant, his wife, and his attorney’s law
firm, and was apparently deposited into the law firm’s trust account. The trust account
ultimately issued the settlement check in the amount of $247,858.15 to appellant and his
wife, with no explanation of the purpose of the check cited in the “for” blank.
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Accordingly, the terms of the settlement belie appellant’s claim that any portion of the
settlement was specifically based on his wife’s loss of consortium.
Affirmed.
V AUGHT, J., agrees.
R OBBINS, J., concurs.
JOHN B. R OBBINS, Judge, concurring. I agree with Judge Griffen’s opinion in which
we affirm the trial court’s decision in this case. I write separately to make clear that we are
not holding, or at least I am not, that recovery on a spouse’s loss of consortium claim is
subject to her husband’s, or his wife’s, child support obligation. Here, although appellant may
have been consorting with his present wife when his claim of medical malpractice arose, the
wife who could possibly have had a loss of consortium cause of action was the appellee. From
what I can glean from appellant’s abstract, the alleged medical malpractice occurred in
connection with surgeries that appellant underwent in August 2000. Appellant and appellee
were not divorced until September 2001. The record does not reflect when appellant and his
present wife were married.
Furthermore, appellant does not contend that the trial court erred by not attributing
some portion of the $247,858.15 net recovery to his present wife. Rather, he contends the
trial court erred by not accepting appellant’s determination that his present wife was entitled
to precisely one-half of this amount, inasmuch as that is the amount that appellant gave her.
Even if appellant’s wife was entitled to some portion of the recovery, appellant has failed to
convince that the trial court was clearly erroneous in not finding that she was entitled to
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$123,929.00.
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