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Langston v. Brown

Court of Appeals of Arkansas, Division IV

November 2, 2016



          Bearden Law Firm, PLLC, by: Mike Bearden, for appellant.

          LaCerra, Dickson, Hoover & Rogers, PLLC, by: Lauren White Hoover, for appellee.

          WAYMOND M. BROWN, Judge

         Appellant appeals from the circuit court's September 28, 2015 order. On appeal, appellant argues that the circuit court erred in (1) imputing income of $2, 500 to her bank account on the entry date of the divorce decree; (2) granting appellee's motion to reduce child support; (3) allowing a reduction of income for child support purposes; (4) its ruling refusing to order appellee to remove a video camera from the room on the parties' minor child, G.L.B;[1] and (5) denying appellant's motion that appellee's tax refunds be considered income for purposes of child support. We affirmed in part and reverse in part.

          I. Facts

         A divorce decree was entered on February 8, 2013, granting appellant a divorce from appellee pursuant to Arkansas Code Annotated section 9-12-401(b)(4).[2] In pertinent part, appellee was ordered to pay child support in the amount of $357 biweekly in addition to 15% of any additional net bonuses from his job and 15% of any additional net farm income over and above the periodic support obligation. He was to remit any additional support from net bonuses within five days of receipt and from farm income within ten days of receipt. Appellee was ordered to continue to provide and maintain the current health insurance for G.L.B.

         Appellant filed a verified motion for contempt on September 20, 2013. Appellant then filed a motion to modify the divorce decree on October 10, 2013, seeking payment of appellee's child support obligation by wage withholding. Appellee responded to appellant's motion to modify the divorce decree on October 17, 2013, and did not object to a wage-assignment order. Appellee also responded to appellant's motion for contempt on October 17, 2013.

         Appellant filed a motion to modify appellee's child support obligation on January 2, 2014, asserting a material change in circumstances "in that there exist[ed] an inconsistency between the current child support and the amount of support which results from the application of the family support chart to [appellee's] net income after allowable withholdings are made through his regular take-home pay as well as his bonuses." She alleged that appellee was "manipulating" the amount of his net biweekly take home pay by claiming zero dependents and receiving monies in the form of a tax refund that should be going toward increased child support. Appellee responded to appellant's motion to modify child support, denying all allegations, on January 9, 2014.

         Appellant then submitted an entry of appearance as her own co-counsel on May 15, 2014.[3] The circuit judge ultimately recused himself from the case.

         Appellee then filed a motion to reduce child support on June 2, 2014, alleging a material change in circumstances that warranted a reduction of his child support obligation. He sought retroactive application of reduced child support to the date of the motion plus reimbursement of any "overpaid amounts" while awaiting a hearing on the matter. By order entered on June 6, 2014, our supreme court assigned a new judge to the case.

         Appellant responded to appellee's motion for reduced child support on June 9, 2014, arguing that appellee's child support obligation should not be reduced because he voluntarily left his job and therefore, his voluntary actions did not constitute a material change in circumstances.[4]

         A number of other motions were filed between the parties including multiple motions for contempt by appellant. All motions were heard in a hearing held on September 22 and 23, 2014.[5] Sticking mainly to information not already covered in the pleadings, appellant testified that appellee allowed the insurance for the child to lapse before he left his employment for Walmart. She testified that appellee told her the insurance was not valid as of May 9, 2014, and that the child did not have insurance again until June 1, 2014. Accordingly, she had had to pay a couple of medical bills out-of-pocket that she wanted to be reimbursed for.

         Appellee testified that he left his employment with Walmart after 28 years because he "noticed over the last probably seven months that [he] was being harassed." He ultimately was given the option to "step down to be an assistant manager" with a "cap" pay of $45, 000 per year or resign. The bonus structure was different for assistant managers getting $2, 000 a year, "if they get that." He chose to resign and his last day was May 9, 2014. He bought an outdoors, guns, and ammunition business in Kennett, Missouri, taking over operations on May 31, 2014. He was the only employee of the business at the time of the hearing. He was not "currently drawing" income from the business; he was "living off of [his] wife's income" and "[his] cashed out retirement."[6] He had numerous debts including a loan for inventory in his store and monthly payments to the previous owner of the business for the purchase of the business.

         Appellee had collected "about $41, 000[, ]" including taxes, from June 1, 2014, through September 17, 2014, "before [his] overhead was considered." With an income of $45, 000, in addition to $8, 400 that his wife was paying for insurance, he calculated that his net income was approximately $1, 908.00 per month, which would require a child support payment of $419 per month according to the child support chart. With an income of $60, 000 plus the amount paid for insurance, his child support payment should be $487 per month. Appellee was able to add G.L.B. to his wife's insurance without additional cost.

         At appellant's request, appellee read a couple of articles, one in which he was quoted as stating that he left Walmart "primarily because of the quality of life he was giving up" and because "it was time to do something else[, ]" and another in which it stated that he took over his new business from his wife's grandfather and that "[b]usiness has really picked up[.]" He admitted that he could have found another retail job, but had not applied for any other options of employment. He bought the business because it allowed him to stay in the area. A "very rough ballpark" of his salary the year before was $85, 000, though he might have been off and it might have been around $100, 000.

         Appellee admitted having a camera in G.L.B.'s room and testified that he thought it was "appropriate to have a camera in a little girl's room." He noted that he had a camera in every room in the house since a break-in, though her room was "untouched" during the break-in, and that the camera was in G.L.B.'s room for "[his] purpose." He did not have an objection to taking the camera out of G.L.B.'s room and would take it out if the child wanted him to; she never told him that she liked or disliked having the camera in her room.

         The circuit court entered its order on September 23, 2015. Therein, in pertinent part, it granted appellee's motion to reduce child support and made the award retroactive to June 1, 2014, awarding child support of $542 per month based on an estimated income of $60, 000 per year; imputed $2, 500 to the account balance in her bank account on the entry date of the divorce decree; made half of the $700 appellee's wife spent on insurance attributable to G.L.B., thereby allowing appellee an annual deduction of $4, 200 for payment of G.L.B.'s health insurance;[7] ordered that the camera in G.L.B.'s room was not required to be removed, but must be nonoperational when G.L.B. was in appellee's care during his visitation; and denied appellant's motion to have appellee's tax refunds considered income for child support purposes. This timely appeal followed.

         II. Standard of Review

         We review traditional cases of equity de novo on the record.[8] While we will not reverse factual findings by the trial court unless they are clearly erroneous, a trial court's conclusion of law is given no deference on appeal.[9]

         III. Imputation of $2, 500 Income to Appellant

         Appellant's first argument on appeal is that the circuit court erred in imputing income of $2, 500 to her bank account on the entry date of the divorce decree. The statutory authority for a circuit court's division of property upon divorce is set forth in Arkansas Code Annotated section 9-12-315.[10] Arkansas Code Annotated section 9-12-315(a) provides that "[a]ll marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable."[11] We will not substitute our judgment on appeal as to the exact interest each party should have but will only decide whether the order is clearly wrong.[12]

         The overriding purpose of the property-division statute is to enable the court to make a division of property that is fair and equitable under the circumstances.[13] With respect to the division of property in a divorce case, we review the circuit court's findings of fact and affirm them unless they are clearly erroneous or against the preponderance of the evidence.[14] A circuit court's finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed.[15] In reviewing a circuit court's findings, we defer to the circuit judge's superior position to determine the credibility of witnesses and the weight to be accorded to their testimony.[16]

          In the circuit court's order imputing $2, 500 income to her bank account on the entry date of the divorce decree, it stated:

With respect to the division of the parties' three (3) bank accounts, the Court believes that Judge Laser gave notice to both parties that if money was in the accounts to get it out, and the Court states that there was nothing which prevented the Defendant from reducing the balance in her checking account by payment of bills between the time of the Court's opinion on February 1, 2013 and the entry of the Divorce Decree on February 8, 2013. However, the Court finds that the Defendant's act of depositing $1, 000 and then $1, 500 into the account following the entry of the decree was evasive and therefore imputes the account balance on the entry of the Decree to be $2, 500.00.[17]

         At the time of the divorce decree, there was $127.71 in the account. There was no evidence or assertions that the money appellant spent from the account was not used for payment of bills. The evidence before the circuit court was simply that appellant took money from the account prior to the divorce decree, as was permitted. Because she was permitted to remove money from the account prior to the entry of the divorce decree, any money appellant deposited into the account following the entry of the decree could not be evasive and was irrelevant. Accordingly, the circuit court clearly erred. We therefore reverse on this point and order division of the $127.71 that was in the account on the entry date of the divorce decree.

         IV. Child Support Reduction

         Appellant's second argument on appeal is that the circuit court erred in granting appellee's motion to reduce child support. Appellee requested modification of his child support because he left his job as an employee at Walmart to purchase and run a guns and ammunition store. As a rule, when the amount of child support is at issue, we will not reverse the circuit court absent an abuse of discretion, but we give a trial court's conclusions of law no deference on appeal.[18]

         It is axiomatic that a change in circumstances must be shown before a court can modify an order for child support.[19] In addition, the party seeking modification has the burden of showing a change in circumstances.[20] In determining whether there has been a change in circumstances warranting adjustment in support, the court should consider such matters as a change in the income and financial conditions of the parties, the financial conditions of the parties and families, and the child-support chart.[21] The supreme court has made it clear that a finding that a material change in circumstances has occurred is subject to a clearly erroneous standard ...

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