This opinion is uncorrected and subject to revision before publication in the printed official reporter.
APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT. NO. DR-09-20-A-G. HONORABLE JIM D. SPEARS, JUDGE.
Foster Law Office, by: M. Shannon Foster, for appellant.
Smith, Cohen & Horan, PLC, by: Stepheen C. Smith and Jacob K. Wooley, for appellee.
KENNETH S. HIXSON, Judge
Appellant Gina Langston Metz and appellee Thomas Langston divorced in 2009, at which time Gina was awarded primary physical custody of their three children and $700 per month in child support from Thomas. Gina appeals the June 2014 order that reduced Thomas's child-support obligation and calculated past-due support arrearages. After conducting a de novo review, we affirm because Gina has failed to demonstrate clear error or an abuse of discretion.
In 2013, Thomas incurred health issues and fell behind on child support. In August 2013, Gina filed a motion for contempt alleging that Thomas failed to pay child support and his half of the children's medical expenses not covered by insurance, as well as a motion to increase child support and to modify visitation. In September 2013, Thomas filed a response, resisting Gina's motion for contempt, and countered with a motion to reduce child support due to his taking medical leave from employment and currently receiving no income.
A hearing was scheduled for April 8, 2014, but the hearing was not conducted due to technical problems with the official court reporting system. Counsel for the parties met in chambers with the trial court. Counsel were urged by the trial court to work out the issues, but a new hearing was not requested or set. In the intervening two months, the parties were able to resolve many outstanding issues but not the proper amount of past-due child support arrearage and current child-support obligation. Each party sent a letter to the trial court advancing her or his respective position on what the child support obligation should be, past and present.
Gina's attorney's letter was the first sent to the trial court, dated June 10, 2014. Therein, attorney Shannon Foster stated, " Stephen Smith [Thomas's attorney] and I decided we would each send you our Orders with proposed calculations for the child support, so the Court could determine the proper child support amount and arrearage." She provided an original and three copies of her proposed order. In the letter, she contended that Thomas was $1,950 behind as of August 2013; that he received highly variable specified weekly income between August 2013 and April
2014 from his employer Gerdau Macsteel and from short-term disability insurance payments from The Hartford; and that a downward adjustment was made to account for the oldest child having reached majority in June 2014. Gina attached to her letter payroll documents from Gerdau Macsteel and disability benefit information from The Hartford pertaining to Thomas's benefits. Gina charted per-week child support figures, depending on actual moneys received. She contended that Thomas should pay $106 per week in child support from March 2014 forward, when Thomas was no longer receiving any income at all, reduced to $90 per week from and after the time that their oldest child graduated from high school.
In her proposed order, Gina acknowledged that Thomas had histoplasmosis and meningitis, was currently unemployed, had applied for disability and appealed the denial, and had seizures that prevented him from driving. Her proposed order also conceded that " a downward modification of child support is warranted based on the Defendant's current unemployment and medical condition, as of date of filing." Gina proposed an arrearage for child support in the amount of $8,200 as of mid-April 2014, $106 in weekly child support owed from mid-April until early June 2014, and then $90 per week thereafter for the remaining two minor children. Her proposal for arrearages was for Thomas to pay $18 per week over the $90-per-week rate. In addition, her order recited that Gina would be awarded judgment for the past due amount, and " if or when the Defendant does qualify for disability and is awarded backpay, the arrearage balance at that time shall be paid from the backpay amount." The orthodontic and medical costs were proposed to be ordered divided evenly; the amounts were not in dispute. Her attorney closed the letter with the statement that " Mr. Smith should be submitting his Order and child support calculations to the Court, as well."
On June 23, 2014, counsel for Thomas responded to Gina's proposal, copying Gina's attorney with this correspondence. In Thomas's letter to the trial court, his attorney noted that the major dispute was the child support arrearage amount and current child support obligation. Thomas's attorney attached an edited version of Gina's proposed precedent. The attorney's letter recited the following:
The concern with Ms. Foster's child support calculation is that she seeks to make things complicated. Ms. Foster wants to use the Gerdau vacation payments as a means to increase Mr. Langston's child support payments before his income was limited to supplemental insurance and then went to zero. The problem with these calculations is twofold. First, child support should not fluctuate on a week to week basis; and Second, the reason Mr. Langston was receiving the larger sums was due to the fact that he had accrued vacation time and was being paid for those days he would never get to take because of his health and impending unemployment.
The easiest way to calculate the support obligation is as your Honor indicated in chambers in Greenwood in the early spring. Mr. Langston's support of $700 per month for three (3) children should remain in place until Mr. Langston's filing (on September 24, 2013) for a downward modification. This filing for a downward modification coincides directly with Mr. ...