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Butler v. Butler

Court of Appeals of Arkansas, Division II and III

October 1, 2014

ROBERT A. BUTLER, APPELLANT
v.
KARLA GLASS BUTLER, APPELLEE

Page 586

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT. NO. DR-2007-871(II). HONORABLE ANNIE POWELL HENDRICKS, JUDGE.

Jeremy B. Lowrey, for appellant.

Smith, Cohen & Horan, PLC, by: Matthew T. Horan, for appellee.

ROBERT J. GLADWIN, Chief Judge. WALMSLEY, GLOVER, WHITEAKER AND VAUGHT, JJ., agree. PITTMAN,J., dissents.

OPINION

Page 587

ROBERT J. GLADWIN, Chief Judge

The Sebastian County Circuit Court granted judgment on September 25, 2013, to appellee Karla Butler in the amount of $52,471.99 for arrearages in alimony, insurance payments, and child support; denied appellant's request for a reduction in alimony and claim for offset; and found appellant in contempt, ordering him to comply within six months or be incarcerated. On appeal, appellant argues that the trial court erred (1) by finding him in contempt, (2) in its analysis of a material change in circumstances, (3) in its analysis of appellant's claim for offset, and (4) in applying unclean hands to the offset analysis. We affirm.

I. Procedural History

Appellant filed for divorce on October 10, 2007, and appellee counterclaimed, asking for custody of their two children and for appellant to be responsible for all marital debt. By temporary order of July 14, 2008, appellant was ordered to pay $2500 in alimony and child support, as well as certain bills, including the mortgage, homeowner's insurance, and medical insurance for the children.

Appellant filed a motion for reconsideration on July 23, 2008, claiming that he had presented testimony that he makes no income; however, if the circuit court had used the 2007 income in setting support, then the amount ordered was above the amount listed in Administrative Order No. 10.

An amended temporary order was filed on September 15, 2008, ordering appellant to pay $2500 in temporary alimony and child support effective July 1, 2008, with $1666.67 designated as child support and $833.33 as alimony. He was further ordered to continue paying the bills. The circuit court noted that, regardless of appellant's testimony, he had continued to pay alimony and the bills as ordered.

On September 19, 2008, the Child Support Enforcement Unit (CSEU) intervened and filed a motion for contempt against appellant claiming that he was in arrears in child support in the amount of $5000.01. On September 29, 2008, CSEU filed a motion to modify, claiming that appellant had been ordered to pay $2500 per month in child support, and asked for a wage-assignment order. This motion was modified

Page 588

on October 6, 2008, to reflect the designated child-support obligation of $1667.67.[1]

On December 29, 2008, the circuit court ordered that the payments continue as ordered, plus an additional $500 for " any" arrearage. The court found that appellant was current on child support through November 30, 2008. Further, the court ordered that the payments to appellee be made directly to her by wire transfer. The court also ordered that any " payor" deduct child-support payments from appellant's pay.

On June 11, 2009, CSEU filed a motion for citation for a child-support arrearage of $7500 since December 20, 2008. A hearing was set for September 22, 2009, and on that day, a decree was filed granting the parties a divorce and awarding custody to appellee. A support and property-settlement agreement was attached. The parties agreed that appellant would pay $1282 per month child support beginning July 2009. The child-support amount was to decrease to $894 monthly on August 16, 2009, when the oldest child turned eighteen. Alimony was set at $1000 per month beginning July 2009 through May 2023. They agreed that any modification would be based on a substantial change in appellant's income before June 30, 2012. Appellant was also to reimburse appellee $250 per month for medical insurance.

On January 15, 2010, appellant's lawyer filed a motion to withdraw because his client had not paid his fees or those of the ad litem, who had been appointed on January 8, 2009. An order was entered allowing withdrawal on January 20, 2010.

On January 28, 2010, appellee filed a motion for contempt for appellant's failure to pay bills in violation of the September 15, 2008 amended temporary order. Included were the internet bill, real-estate taxes for 2008, medical insurance, and alimony for April, May, and June 2009. Further, appellee alleged that she was forced to pay car and mortgage payments and insurance on both. She also claimed that appellant had failed to pay the child support, medical insurance, and alimony payments as called for in the property settlement and decree. On February 18, 2010, the attorney ad litem filed a contempt motion against appellant for nonpayment of fees in the amount of $1239.58.

On April 22, 2010, appellant filed a countermotion for abatement of alimony, reduction in child support, and for contempt, claiming a substantial change in his income. He alleged that appellee contacted a third party to complain online about his company. Also, he alleged that she had thwarted visitation and communication with his child.

An agreed order was filed September 23, 2010, wherein appellant was to make an immediate payment of $15,648 to CSEU for child support and insurance from July 2009 through July 2010. He was also to pay $3000 in outstanding attorney's fees and $1240 to the attorney ad litem. In exchange, he was not to begin alimony payments until May 2011, when he would then owe for twenty-two months of alimony. The agreement was for him to pay an extra $1000 per month at that time, making his payments $2000 per month from May 2011 through February 2013. In March 2013, he ...


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