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Vice v. Vice

Court of Appeals of Arkansas, Division II

October 26, 2016

WILLIAM E. VICE APPELLANT
v.
DEE ANNA VICE APPELLEE

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72E-93-2000] HONORABLE DOUG MARTIN, JUDGE AFFIRMED

          Canova Law Firm, by: Adell Ralston, for appellant.

          Davis, Clark, Butt, Carithers & Taylor, PLC, by: Constance G. Clark, for appellee.

          LARRY D. VAUGHT, Judge

         Appellant William Vice appeals from an order of the Washington County Circuit Court (1) dismissing his claim for a credit for the overpayment of child support for his twenty-five-year-old daughter, Julia, and (2) requiring him to pay $62.00 per week in child support for his thirty-one-year-old disabled daughter, Lisa. He also appeals from a judgment awarding $2, 694.70 in attorney's fees and costs to Julia and Lisa's mother, appellee Dee Anna Vice. We affirm the trial court's order and judgment.

         William and Dee Anna divorced in 1994. The divorce decree ordered William to pay child support to Dee Anna for the benefit of Lisa, who was born with disabilities, and Julia. In 2007, an agreed order was entered whereby William agreed to pay child support in the amount of $122 per week for the parties' minor child, Julia, and the postminority support of Lisa due to her special needs. William paid child support accordingly.

         In May 2014, William filed a petition for termination of child support, alleging that Julia had reached the age of majority and that his child-support obligation for her had ceased. He also alleged that child support for Lisa should be terminated because in February 2014 he had begun to receive Social Security retirement benefits, and as a result, Lisa received Social Security dependent benefits on his record in excess of his child-support obligation. Dee Anna agreed that Julia had reached the age of majority; however, Dee Anna denied that William's support for Lisa should be terminated.

         At the hearing, William contended that he had continued to pay his child-support obligation for Julia well beyond the date she reached the age of majority; therefore, that obligation should be terminated. He also testified that he was no longer able to work full-time due to multiple medical conditions.[1] He said that he was able to work only part-time, earning $3, 000 per year. He stated that he did not believe that there was any job he could do given his physical condition and that he had not looked for other work. While he testified that he had been denied Social Security disability benefits, he stated that as of February 2014 he had begun to receive $909 in monthly Social Security retirement benefits. He agreed that Lisa has severe disabilities and needs care, but he claimed his child support for her should be terminated because she was receiving $553 per month in Social Security dependent benefits on his record, which was greater than his child-support obligation. He requested that his monthly child-support obligation be credited by $553.

         Dee Anna testified that Lisa was born with spondyloepiphyseal dysplasia congenital.[2]Lisa is also hearing impaired and cognitively and developmentally delayed. She has had multiple surgeries (including five spinal surgeries and one hip replacement) and therapies. According to Dee Anna, Lisa needs care and cannot be left unattended for extended periods of time. Dee Anna stated that she worked full time as a special-education teacher and that while she was at work she hired caregivers to stay with Lisa. Dee Anna further testified that she suffers from several health problems, including breast cancer and congestive heart failure.

         Dee Anna stated that before William received Social Security retirement benefits, Lisa received $721 per month in Social Security benefits based on her disability. When William began to receive Social Security retirement, Lisa's monthly disability benefit increased to $772. Dee Anna attributed $1, 260 in monthly expenses to Lisa's care. She testified that if William did not pay child support, the $772 per month Lisa received from Social Security would be insufficient to care for her and that she (Dee Anna) did not have the financial resources to cover the difference.

         Syard Evans, the deputy CEO of the Arkansas Support Network, testified that he had been acquainted with Dee Anna and Lisa for fourteen years. He confirmed that Lisa's disability affected her physical, cognitive, intellectual, and psychological functioning. He testified that $772 per month was insufficient to support Lisa's needs.

         Following the hearing, the trial court entered a letter opinion dismissing William's request for a credit for the overpayment of child-support payments for Julia because he failed to plead it. The court did, however, find that William's child-support obligation for Julia terminated as a matter of law. Relying on Guthrie v. Guthrie, 2015 Ark.App. 108, 455 S.W.3d 839, the court next found that Lisa, based on her disability, needed support; that Dee Anna needed financial support to care for Lisa; and that William owed a duty to continue to support Lisa. Despite William's testimony that he was no longer able to work full time, the court, pursuant to Administrative Order No. 10, imputed income of full-time minimum wage to him and ordered him to pay chart support of $62 per week for Lisa.

         In a supplemental letter opinion, the trial court found that based on Arkansas Child Support Enforcement v. Hearst, 2009 Ark. 599, 357 S.W.3d 450, it was not permitted to consider William's "Social Security Income (SSI) benefits" as income.[3] It reiterated that William's testimony that he was unable to work lacked credibility, it found that he was working below full earning capacity, it imputed a minimum-wage income to him for purposes of child support, and it again awarded a support-chart figure of $62 per week.

         An order was entered on November 10, 2015, detailing the findings in the trial court's letter opinions. On December 1, 2015, the court entered a judgment awarding Dee Anna attorney's fees ...


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