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Browning v. Browning

Court of Appeals of Arkansas, Division III

February 18, 2015

BRENDA A. BROWNING, APPELLANT
v.
DAVID BROWNING, APPELLEE

Page 864

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT. NO. 23DR-07-38. HONORABLE H.G. FOSTER, JUDGE.

Osment & Winningham, PLLC, by: Joe Don Winningham, for appellant.

Debra J. Reece, for appellee.

M. MICHAEL KINARD, Judge. GRUBER and BROWN, JJ., agree.

OPINION

Page 865

M. MICHAEL KINARD, Judge

Appellant Brenda Browning appeals from the trial court's order reducing appellee David Browning's child-support obligation and applying the reduction retroactively. Brenda argues that the trial court lacked jurisdiction or, alternatively, that it erroneously reduced child support and erroneously calculated a credit due David. We affirm as modified in part and reverse and remand in part.

On April 16, 2009, David filed a petition for reduction of child support contending that his earnings had decreased since the 2007 divorce decree ordering him to pay child support of $250 per week for the parties' two children. Several months later, Brenda filed a motion for contempt alleging that David was in arrears. A hearing was held on both motions on August 9, 2010, but David and his attorney failed to appear. The trial court entered an order that same date, holding David in contempt for being thirty-eight weeks in arrears. The order stated that David's child support was set at $250 per week and that Brenda was given judgment for his present arrearage of $9500. Brenda was also awarded attorney's fees.

On September 10, 2010, David filed a motion to set aside the August 2010 order pursuant to Arkansas Rule of Civil Procedure 60, alleging that he had not received notice of the hearing. After a hearing on this motion, an order was entered on December 8, 2010, amending the August 2010 order. David's child-support obligation was reduced to $139 per week retroactive to his April 2009 petition, and his arrearage and attorney's fees were recalculated. Brenda appealed from the December 2010 order to this court, which held that the trial court lacked jurisdiction under Rule 60 to modify the August 2010 order more than ninety days after it had been entered. Browning v. Browning, 2011 Ark.App. 714. We held that the December 2010 order was void and reversed and remanded with instructions to reinstate the August 2010 order. Id.

Both parties filed briefs to the trial court on remand. David asked the court to exercise its continuing jurisdiction over child-support matters and to reach the same determination on his child-support obligation as was reached in the December 2010 order pursuant to his April 2009 petition for reduction. Brenda asserted in her brief that David's child-support obligation could only be modified if a new motion was filed. After the trial court reinstated the August 2010 order, both parties filed a joint motion for clarification asking whether the

Page 866

trial court retained jurisdiction to modify child support based on David's April 2009 petition. The trial court subsequently determined that it did retain jurisdiction to modify based on that petition. On May 2, 2013, David filed a " motion to ascertain current child support obligation and any child support arrearage."

After a hearing in September 2013 in which the trial court found that a material change of circumstances had occurred, the court entered an order on October 23, 2013, calculating David's income and setting child support at $150 per week. The court applied the modification retroactively to the filing of the April 2009 petition. Based on the modification, the court determined that ...


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