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Troutman v. Troutman

Supreme Court of Arkansas

April 20, 2017

MARILYN CURRY TROUTMAN APPELLANT
v.
RONALD TROUTMAN APPELLEE

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. DR-04-1055] HONORABLE MARK LINDSAY, JUDGE

          Taylor Law Partners, LLP, by: William B. Putman, for appellant.

          Cullen & Co., PLLC, by: Tim Cullen, for appellee.

          JOSEPHINE LINKER HART, Justice

         Marilyn Curry Troutman (Curry) appeals from a December 8, 2014 Washington County Circuit Court order reducing her exhusband Ronald Troutman's monthly child-support obligation to $2108 from $6005 per month established by an agreement of the parties and memorialized in an order entered on October 25, 2012. The new support obligation was made retroactive to June 9, 2014, and the circuit court ordered amortization of the $27, 279 overpayment by a further $1000 per month reduction in Troutman's payments. On appeal, Curry argues that the circuit court erred in (1) finding that Troutman met his burden of proving that there has been a material change of circumstances; and (2) calculating Troutman's income for the purpose of child support. We agree that Troutman failed to prove a material change of circumstances, and we reverse and dismiss.

         After the court of appeals affirmed the circuit court's order, Curry petitioned for review. She alleged that the court of appeals had failed to follow its own precedent in regard to the treatment of retained earnings of a closely held Subchapter S corporation, thus creating a split of authority. Because it was apparent that the court of appeals decision calculations conflicted with prior court of appeals decisions, Pannell v. Pannell, 64 Ark.App. 262, 981 S.W.2d 531 (1998) and Anderson v. Anderson, 60 Ark.App. 221, 963 S.W.2d 604 (1998), we granted Curry's petition pursuant to Supreme Court Rule 2-4, which is invoked when the court of appeals "renders a decision which is in conflict with a prior holding of a published opinion of either the supreme court or the court of appeals."[1] When we grant a petition for review, we consider the appeal as though it had been originally filed in this court. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810.

         The parties married in 1998 and divorced in 2005. In 1999, the parties' only child was born. In the divorce decree, Troutman's original support obligation was set at $762 per month. In 2011, Curry successfully petitioned the circuit court to raise Troutman's monthly child-support obligation to $3, 095. In 2012, Curry again petitioned for an increase in child support. Pursuant to her petition, Curry sought to discover Troutman's income in 2012, and when Troutman resisted, she moved for contempt. The circuit court denied Curry's contempt motion, but in the same order, memorialized an agreement by the parties raising Troutman's child-support obligation to $6, 005 per month.

         On June 9, 2014, Troutman petitioned the circuit court to reduce his child-support payments. Attached to his petition was a summary of his taxable income, as reported on his Form 1040 for 2012 and 2013, as well as the deductions allowed by Administrative Order No. 10. He represented that the net sum was his income for child-support purposes.

         At the hearing on his petition, Troutman testified that he is a general contractor as well as the owner of other businesses that he claimed were not profitable. As a contractor, he conducts his business through Boulder Construction, Inc. (Boulder), which he started in 2004. Troutman acknowledged that Boulder is a subchapter S corporation, in which he owns all of the stock. He claimed that he used "completed projects" for "our type of accounting."

         Troutman further testified that, because of the accounting method he used, Boulder has income in 2013 that will be distributed in 2014. He also asserted that it was a sound business practice for Boulder to retain large sums of cash to cover unforseen problems with projects that could result in the work being less profitable than he anticipated. Nonetheless, Troutman admitted that he had shareholder distributions in 2013 totaling between $550, 000 and $580, 000. Further, he conceded that as sole shareholder, he has absolute authority to decide how much of Boulder's retained earnings he could withdraw.

         Troutman stated that, as of the hearing, Boulder had approximately $400, 000 in "liquid" assets. Referring to his tax returns, which were made part of the record, Troutman asserted that his company's cash reserves "went down substantially in 2013" and his accounts receivable "went up drastically." Nonetheless, Troutman admitted that in the 2013 tax year, he made a considerable cash outlay for land for his rock business, Winslow Stone Works and also purchased a bulldozer at a cost of more than $100, 000. Troutman acknowledged that he took a $554, 000 distribution in 2013, but claimed that he used it to pay his child support and income taxes.

         Troutman defended the declaration of his income found in the attachment to his petition. He claimed that it was the same calculation that resulted in his voluntary decision to increase his monthly child support obligation from $3095 in 2011 to $6005 in 2012.

         The documentary evidence contradicted Troutman's testimony in several important respects. Most importantly, attachment M-1 to his schedule K from his 2013 federal tax return indicated that Boulder reported $785, 392 in deferred income that was not subject to federal tax in 2013. Accordingly, Troutman's "liquid assets" were considerably higher than he represented at the hearing. Also, while purporting to show a loss of income in 2013, various schedules showed that despite a distribution of $554, 745 to Troutman as the sole shareholder of Boulder, the company's cash reserves increased.

         Certified Public Accountant, Jake Keen, testified in Curry's case-in-chief. He stated that Troutman's accounting method, was uncommon, but not unknown. He opined, based on Troutman's 2013 tax returns, that Troutman had at least $705, 245 in income "to live on." Further, he testified that Troutman's income in 2013 was "consistent between 2012 and 2013." On cross-examination, Keen conceded that Boulder's cash reserves declined between 2012 and 2013 by as much as $650, 000. Nonetheless, Troutman withdrew $554, 000 that he did not count as income on his 2013 tax return. Keen disputed that all of the distribution was used for child support and taxes-he asserted that, based on a quick calculation, no more than $295, 000 was necessary for those outlays, which left in excess of $200, 000 available for child support.

         Troutman presented his Certified Public Accountant Reece Parcham as a rebuttal witness. Parcham stated that the "completed projects" accounting method was commonly used by contractors with revenues of less than $10 million per year. He defended Troutman's assertion that Boulder's income was substantially less than in previous years, and asserted that Troutman's income would be substantially greater in 2014 when several projects are completed. According to Parcham, "it will all come out in the wash." Parcham could not state whether Troutman had paid taxes on the distribution that he took in 2013, but asserted that Troutman will not escape paying taxes on it at some point. Parcham stated that Boulder's retained earnings should not be considered for child-support calculations. He conceded, however, that Troutman had the "use and benefit" or the $550, 000 he drew down in distributions from Boulder. Parham also conceded that not all of the depreciation that Troutman claimed on his income-tax returns were "economic" depreciation.

         Curry moved to dismiss Troutman's petition at the close of the evidence. She asserted that Troutman had not met his burden of showing a material change-of-circumstances. The circuit court declined to consider any proof of Troutman's income other than what was listed in the attachment to his petition. It stated that it was going to calculate Troutman's support obligation without regard to the previous support order, considering only the decline in Troutman's income from 2012 to 2013.

         While describing Troutman's accounting method as "wacky, " the circuit court declined to "literally apply the section of section III [in Administrative Order No. 10] to this particular fact situation." It further found that the depreciation that Troutman claimed was "going to catch up with him at some point in time." The circuit court acknowledged that Troutman had the use of in excess of $500, 000 in 2013, but the "preponderance of the evidence indicates that he paid the income tax on it before he had use of it. So, to make him pay child support on it again would be punishing him. It would be double taxation, so to speak on his income as defined by Administrative Order 10."

         The circuit court accepted what Troutman determined to be his "net income" for 2012 and 2013-his adjusted gross income listed on his Form 1040 for the tax years 2012 and 2013, less the allowable deductions listed in Administrative Order No. 10 (social security, medicare tax, state and federal taxes, and health insurance). It added the sums together, $470, 766 for 2012 and a loss of $124, 033 for 2013 and divided by two to obtain an average for the two years: $173, 367. The circuit court then calculated the chart amount of child support for a monthly income of $14, 447, which is $2108, made retroactive to the June 9, 2014 filing of Troutman's petition to modify. Noting that in the intervening time since the filing of the petition, Troutman ...


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