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Hayes v. Otto

Court of Appeals of Arkansas, Division III

April 15, 2015

MICHAEL A. HAYES APPELLANT
v.
SANDRA L. OTTO APPELLEE

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTEENTH DIVISION [NO. DV-1998-3853] HONORABLE VANN SMITH, JUDGE

Michael A. Hayes, pro se appellant.

No response.

ROBERT J. GLADWIN, Chief Judge

Michael A. Hayes appeals the Pulaski County Circuit Court's May 9, 2014 order and the underlying order of August 30, 2010. Because his points on appeal have either been addressed by this court, Hayes v. Otto (Hayes II), 2009 Ark.App. 654, 344 S.W.3d 689, or are not supported by citation to authority or convincing argument, we affirm. Further, this court's latest order held that some statements in appellant's briefs bordered on contempt. Hayes v. Otto (Hayes III), 2011 Ark.App. 564. Based on Arkansas Supreme Court and Court of Appeals Rule 1-5 (2011), we struck those statements from his briefs and warned, "If appellant makes similar statements in future filings, we will have no choice but to address this problem more harshly." Hayes III, 2011 Ark.App. 564 at 2. As is noted below, appellant's current brief contains similar statements. Therefore, relying on Rule 1-5, we strike the entirety of appellant's point on appeal regarding recusal. See Exigence, LLC v. Baylark, 2010 Ark. 306, 367 S.W.3d 550; Cox v. State, 365 Ark. 358, 229 S.W.3d 883 (2006); McLemore v. Elliot, 272 Ark. 306, 614 S.W.2d 226 (1981).

I. Procedural History

The parties had joint custody of their youngest child, and appellee Sandra Otto, having a greater income than appellant, was ordered to pay child support.[1] According to appellant's recitation of related cases, there have been a total of ten appellate cases, including a petition for writ of mandamus, appeals on issues of child support and sanctions, and petitions for review. The appellate opinion that is most pertinent to this latest appeal is Hayes II, wherein this court affirmed the circuit court's August 12, 2008 order setting child support based on a deviation from Administrative Order No. 10, taking into consideration appellee's creation of a college fund for the benefit of the children. In that appeal, appellant argued in eight points for reversal of the circuit court's order.

Following our decision, appellant filed a motion to modify child support, arguing that appellee's income had increased. The circuit court's order of August 30, 2010, reflects that appellant's argument made sense that "if he receives less child support because of [appellee's] payment of funds to a college fund for their children, then, in effect, [appellant] is paying a small portion towards the college education of the children." Nevertheless, the circuit court declined to compute the amount appellant could claim as his contribution because it was not material to the court's decision. Further, the circuit court found that appellee had full and complete control over the fund because she had created it. Finally, the circuit court noted appellee's income of $134, 000 per year, and appellant's income of $697.38 bi-weekly, but stated, "However, on August 12, 2008, this court found that [appellant] had a net weekly income of $635. The Arkansas Court of Appeals affirmed the Court's decision in its opinion of October 7, 2009."

The circuit court then found as follows:

15. The [appellee] testified that as of January 1, 2010 she had a net weekly income of $1, 954.00. [Appellee] further stated on her Affidavit of Financial Means that she contributes $900.00 per month to a college fund for [daughter].
16. [Appellant's] obligation for child support for one child would be $112.00 per week based on a net weekly income of $635.00. [Appellee's] weekly child support obligation is $ 292.10 based on a net weekly income of $1, 954.00. The Court computes the child support for [appellee] by referring to the child support chart and finding that [appellee] should pay $149.00 for the first $1, 000.00 per week and then fifteen percent (15%) of $954.00, which is $143.10. The total of this amount is $292.10. The Court deviates from the child support chart because of [appellee's] paying into a college fund for [daughter]. The Court deviates in the amount of $91.00 per week, leaving the [appellee's] obligation to be $201.10 per week. The deviation is the exact amount as was affirmed by the Court of Appeals on October 7, 2009, and child support was calculated in the same manner.
17. The Court finds that these amounts should offset with [appellee] paying the [appellant] the net sum of $89.10 per week in child support for the period of time beginning October 17, 2008 through the end of May, 2010. The Court finds that there were 85 weeks during the above stated time period. The total amount [appellee] owes [appellant] is $7, 573.50 in child support at the rate of $89.10 per week for the 85 weeks. However, [appellee] had been ordered to pay $78.00 per week in child support during this time period. Assuming [appellee] paid child support to [appellant] from October 17, 2008 through May 2010, the total of her payments shall be offset against the $7, 573.50.
18. [Appellee] shall make arrangement to satisfy the end figure by the end of 2010.

On appeal, we held that the above order lacked finality because it did not set forth a specific dollar amount. Hayes III, 2011 Ark.App. 564, at 2–3. Because that appeal resulted in a dismissal for lack of a final order, the ...


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