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Mason v. Robertson

Court of Appeals of Arkansas, Division II

June 7, 2017



          Dodds, Kidd & Ryan, by: Catherine A. Ryan, for appellant.

          Robert Hudgins, for appellee.

          BRANDON J. HARRISON, Judge

         Tonya Mason appeals the circuit court's order setting visitation and child support. She argues that the circuit court erred in (1) finding that she is required to have a nanny present for visitation with her son, L.R.; (2) limiting her to one additional visitation per month with her son; and (3) finding that her ex-husband, Jonathan Robertson, expends $3900 per month in extraordinary expenses for L.R. We affirm.

         The parties divorced in August 2008 after an eight-year marriage, and they have two children: eight-year-old L.R., an autistic child with special needs, and two-year-old J.R. The parties were awarded joint legal and physical custody of L.R.; they were also awarded joint legal custody of J.R., but Mason received primary physical custody of J.R. Robertson was ordered to pay $4000 monthly in child support for J.R. He was also ordered to pay up to $3000 per month for fees associated with L.R.'s nanny care regardless of which party was taking care of L.R.

          Over the next several years, the parties continued litigating issues of custody, child support, and contempt, and in December 2012, an agreed order was entered establishing Robertson as L.R.'s primary physical custodian. Mason was awarded visitation with L.R. on alternating weekends from 12:30 p.m. to 4:30 p.m. on Saturday or Sunday. The order provided that Robertson "will provide services of his Nanny for the visitation and will pay for the cost, including transportation. If for some reason there is an emergency and their Nanny is unavailable, [Robertson] will promptly notify [Mason] and will reschedule the visitation[.]" Regarding child support, the parties agreed to deviate from the child-support chart "based on the extraordinary medical expenses incurred on behalf of [L.R.]." Mason's child-support obligation was $487 per month; however, this was offset against Robertson's child-support obligation, leaving him responsible for child support in the amount of $2200 per month.

         The current round of litigation began in January 2015, when Robertson petitioned to modify his child-support obligation. Over the next thirteen months, the parties filed multiple petitions for contempt, motions to compel, and requests for modification of visitation and child support. The circuit court held a hearing in March 2016, and after receiving testimony and arguments from counsel, the court found,

[W]e're going to reduce [Robertson's] monthly income by $3, 900 because of the extraordinary expenses that he incurs with the parties' autistic son, which included such expenses as the nanny expenses, the pull-ups, the money spent driving him around, some Sunshine School expenses, some positive reinforcers, sensory supplies, the insurance expense, a small allowance for repairs that are going to have to be made periodically to the home because of the son's disability, and a small allowance for some additional expenses for vacation.

         The court also found that Mason could request additional visitation, with two weeks' prior notice, but advised her to exercise her visitation on schedule as much as possible. The court stated several times that the parties "have got to learn how to communicate. You have got to follow the order." Mason also raised the possibility of hiring her own nanny instead of relying on the availability of Robertson's nanny for visitation, and the court stated, "If you can show me that it won't harm this child to do that, then I won't have a problem with it."

         The court entered a written order in August 2016 that included the following findings:

8. That Defendant must provide two (2) weeks advance notice to Plaintiff when requesting additional visitation. In the event a nanny is unavailable for Defendant's requested date, Plaintiff must make the minor child and nanny available at the soonest available time. Defendant may only exercise one (1) additional visitation per month and that visitation is not to be used to replace a missed visitation.
10. From the testimony taken in Court has found [sic] that the Plaintiff expends an average of $3, 900.00 each month for extraordinary expenses regarding the minor child, [L.R.]. Those expenses are for the payments to nannies, pull-ups, Sunshine Academy tuition, gas for driving the minor child around to soothe him, positive reinforcement tools, medical insurance, medical costs, repairs to the home caused by the minor child and cost of additional care for vacation. The Court arrived at this number by taking an average of those expenses over the last three (3) years. The Court finds that the Plaintiff is entitled to a reduction in his child support of forty-five percent (45%) of said amount.
Going forward, the Parties should use a rolling three (3) year average dropping off the latest year and adding the current year to adjust the $3, 900.00 amount. The $3, 900.00 a month cannot exceed or be lowered by six percent (6%) increase annually ...

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