FROM THE PIKE COUNTY CIRCUIT COURT [NO. 55DR-02-54] HONORABLE
TOM COOPER, JUDGE.
Baker, pro se appellant.
L. Mitchell, for appellee.
MARK KLAPPENBACH, Judge.
appeal concerns a request to modify a child-support
obligation. Appellant Lee Baker appeals the Pike County
Circuit Court's order filed in May 2016 that denied his
"Request for Review and Adjustment" of his
child-support arrearages and current child-support
obligation. Appellant filed his motion in March 2016,
contending that there had been a material change in
circumstances that warranted a change or abatement of child
support. Appellant asserted that he had been incarcerated
since November 2013, that he had no means to pay child
support, that one child had reached the age of majority and
graduated from high school, and that a reduction of his past
and future child-support obligations was appropriate. The
trial court denied this motion, leading to the present
appeal. We affirm.
standard of review is de novo on the record, and we will not
reverse unless the trial court's findings are clearly
erroneous. Hall v. Hall, 2013 Ark. 330, 429 S.W.3d
219; Brown v. Brown, 2014 Ark.App. 455, 440 S.W.3d
361. A finding is clearly erroneous when the reviewing court,
on the entire evidence, is left with the definite and firm
conviction that a mistake has been committed. Hill v.
Kelly, 368 Ark. 200, 243 S.W.3d 886 (2006). As a rule,
when the amount of child support is at issue, we will not
reverse the circuit court absent an abuse of discretion.
Troutman v. Troutman, 2016 Ark.App. 70, 482 S.W.3d
365. A change in circumstances must be shown before a court
can modify an order regarding child support, and the party
seeking modification has the burden of showing a change in
circumstances. Hunt v. Hunt, 40 Ark.App. 166, 842
S.W.2d 470 (1992). A circuit court's determination as to
whether there are sufficient changed circumstances to warrant
a modification is a finding of fact, and we will not reverse
this finding unless it is clearly erroneous. Baber v.
Baber, 2011 Ark. 40, 378 S.W.3d 699.
guidance on our state's law when the request to abate
child support is based on an obligor's incarceration.
See Reid v. Reid, 57 Ark.App. 289, 944 S.W.2d 559
(1997). In Reid, the obligor parent contended that
his child support should be abated during the period of his
incarceration, but the trial court denied the request. Our
court recited the longstanding maxim that equity will not
intervene on behalf of a party whose conduct in connection
with the same matter has been unconscientious or unjust,
otherwise known as the clean-hands doctrine. Id.
(citing Wilson v. Brown, 320 Ark. 240, 897 S.W.2d
546 (1995); Marshall v. Marshall, 227 Ark. 582, 300
S.W.2d 933 (1957)). The purpose of invoking the clean-hands
doctrine is to protect the interest of the public on grounds
of public policy and to preserve the integrity of the court,
and it is within the trial court's discretion to
determine whether the interests of equity and justice require
the application of the doctrine. Id. (citing
Grable v. Grable, 307 Ark. 410, 821 S.W.2d 16
(1991)). Although unemployment or diminution of earnings is a
common ground for modification, a petition for modification
will be denied if the change in financial condition is due to
the fault, voluntary wastage, or dissipation of one's
talents or assets. Id. The Reid court
reasoned that a child-support obligation should not be
modified where the means with which to pay were reduced or
eliminated by criminal activity, deciding that equity will
not come to the aid of one who of his or her own volition
engages in criminal behavior and suffers the consequences
that affect the ability to pay child support. Id.
Moreover, as between appellant and his children, the interest
of the children must prevail. Id.; Newton v.
State Office of Child Support Enf't, 2013 Ark.App.
53 (affirming where the trial court, citing Reid,
denied Newton's petition seeking to abate his child
support, finding that the incarceration was caused by his own
fault and thus Newton came to court with unclean hands).
these legal parameters, we examine the chronology of events
and proceedings in the trial court. In August 2014, appellant
filed a "Petition to Hold Support in Abeyance, "
asserting that he was taken into the Arkansas Department of
Correction in July 2014, that he was unemployed, and that he
was unable to pay child support. The Office of Child Support
Enforcement (OCSE) objected to appellant's petition and
raised the defense of unclean hands; OCSE also asserted that
appellant had not established that he could not work under
some type of work-release program. Appellant filed a response
to OCSE in July 2015, asserting that he had been sentenced to
six years in prison with two years suspended; that he was
unable to work due to his sex-offender status; and that he
should be afforded the relief he requested. After a brief
hearing, the trial court entered an order in December 2015
denying appellant's petition. Appellant did not file a
timely notice of appeal from this December 2015 order. In
January 2016, appellant filed a motion to reconsider, which
the trial court denied, also in January 2016. Appellant did
not file a notice of appeal from the January 2016 order.
March 2016, appellant filed a "Request for Review and
Adjustment, " asserting that there "has been a
significant change since the last time my child support was
established or reviewed." Appellant asserted that he had
been incarcerated since November 2013 with no means to pay
child support; that one child had turned eighteen and
graduated from high school; and that the trial court should
conduct a review and "if appropriate make adjustments to
arrearages and monthly amount of support." OCSE filed a
response in opposition to appellant's request, noting
that the trial court had already denied his request in
December 2015and that no changed circumstances had occurred
since that time. OCSE also reasserted the defense of unclean
hands and the argument that appellant had not established his
inability to work pursuant to a work-release-type program.
The trial court entered an order on May 12, 2016, denying
appellant's request. Appellant filed a timely notice of
appeal from the May 2016 order.
appellant's pro se appeal brief, he argues that he
earlier provided proof that he was in prison and that he was
ineligible for a work-release program. Appellant cites
Allen v. Allen, 82 Ark.App. 42, 110 S.W.3d 772
(2003), for the proposition that, although incarceration does
not abate an obligation to pay child support, it can support
a modification down to the minimum amount of support required
of an unemployed person ($25 per week). Appellant fails to
demonstrate reversible error.
the trial court had denied a request to reduce or abate child
support in December 2015 based on the same evidence that
appellant contended had manifested a change in circumstances
in March 2016. Appellant did not timely appeal from the
December 2015 order, which became a final order from which
any change in circumstances would be measured. Appellant
cannot show clear error in the trial court's denial of
the same request a mere three months later. Moreover, while
an inability to earn can support a trial court's finding
to reduce child-support obligations, the trial court is not
required to reduce those obligations particularly where the
obligor is deemed at fault for causing his own inability to
work. See Reid, supra.
appellant does not argue the issue of his child's turning
the age of eighteen and graduating from high school in the
argument section of his opening appellate brief, we do not
address that issue here. Appellant mentions this particular
argument in his reply brief, but we do not consider arguments
raised for the first time in a reply brief. Orintas v.
Point Lookout Prop. Owners Ass'n Bd. of Dirs., 2015
Ark.App. 648, 476 S.W.3d 174. The reasoning behind this rule
is that an appellee must not be deprived of an opportunity to
respond to an appellant's arguments for reversal.
Abdin v. Abdin, 94 Ark.App. 12, 223 S.W.3d 60