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Kirby v. Semeyn

Court of Appeals of Arkansas, Division I

October 25, 2017

HEATHER KIRBY f/k/a HEATHER SEMEYN APPELLANT/CROSS-APPELLEE
v.
JEFFREY SEMEYN APPELLEE/CROSS-APPELLANT

         APPEAL FROM THE STONE COUNTY CIRCUIT COURT [NO. 69DR-99-40] HONORABLE HOLLY L. MEYER, JUDGE

          Murphy, Thompson, Arnold, Skinner & Castleberry, by: A.F. "Tom" Thompson III and Kenneth P. "Casey" Castleberry, for appellant.

          Rose Law Firm, a Professional Association, by: Amanda K. Wofford, for appellee.

          PHILLIP T. WHITEAKER, Judge

         Heather Kirby and Jeffrey Semeyn were divorced in January 2003. Heather was awarded custody of the parties' two children, and Jeffrey was ordered to pay child support. In April 2015, Heather filed a petition for an increase in child support and for arrears in child support. The Stone County Circuit Court granted her request for an increase in child support but denied her request for arrears. Both parties have appealed the court's order. Heather appeals the denial of her request for child-support arrearages, and Jeffrey cross-appeals the award of increased child support. He also appeals the trial court's award of interest and attorney's fees.

         Our case law is well settled. We review domestic-relations cases de novo, but we will not reverse a trial court's finding of fact unless it is clearly erroneous. Berry v. Berry, 2017 Ark.App. 145, at 2, 515 S.W.3d 164, 166; Hunter v. Haunert, 101 Ark.App. 93, 270 S.W.3d 339 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that the trial court has made a mistake. Hunter, supra. In reviewing a circuit court's findings of fact, we give due deference to the court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008); Blalock v. Blalock, 2013 Ark.App. 659. Based on this standard of review, we affirm on direct appeal and reverse and remand on cross-appeal.

         Before addressing the specific arguments raised on direct appeal and on cross-appeal, we must consider certain provisions of the parties' divorce decree that are relevant to the arguments presented. Heather and Jeffrey entered into a property-settlement and child-custody agreement that was eventually incorporated into their divorce decree. At the time of the decree, Jeffrey was a student in medical school, but the parties anticipated that he would eventually graduate, begin and complete a residency, and then begin a medical practice. With this in mind, they designed the child-custody agreement to take care of their two children, one of whom has Down syndrome and will require a lifetime of care. With respect to support and maintenance of the children, Heather and Jeffrey agreed:

5. Support and maintenance of the children. [Jeffrey] shall pay child support in the amount of $407.40 per month beginning the 1st day of March, 1999 until he begins his medical residency. The same shall become due and payable on the 1st and 15th day of each month payable through the Clerk of Stone County Circuit Court, HC 71, Box 1, Mountain View, AR 72560.
The obligation of [Jeffrey] to pay child support shall continue until said children have obtained the age of eighteen (18) years, graduates from high school, dies or marries, whichever event is the first to occur. However, due to the disabilities of the parties minor child, [JPS], child support shall continue during his lifetime. Child support shall be computed annually and shall be commensurate with the Arkansas Child Support Chart.
The parties acknowledge that [Jeffrey] is in arrears in child support and medical/dental expenses. Said arrearage shall be computed at the time [Jeffrey] begins, or should begin, his medical residency. [Jeffrey] shall pay the sum of $300.00 per month for six (6) months and the sum of $400.00 per month for six (6) months thereafter in addition to the regular monthly child support payment to cure such child support arrearage. At the end of one (1) year from the date [Jeffrey] begins, or should begin, his medical residency, the existing balance shall be reevaluated and amortized over a period of four (4) years at the current interest rate for a loan of similar nature and he shall make monthly payment to pay said amount in full within forty-eight (48) months. [Jeffrey] shall compute the then current amount and supply calculations to the wife. Once the amount is agreed upon, then[Jeffrey] shall immediately have a proper petition and order prepared and entered at his cost reflecting the then current amount. If [Jeffrey] shall fail to do the above, then the wife may compute the amount and petition the court and all costs, expenses, and attorney's fees incurred by her shall be taxed to the husband and he shall immediately pay the same. If the then current amount is not agreed upon, then it shall be submitted to this court and all costs, expenses, and attorney's fees incurred shall be taxed to the party that was most in error on the computations.
It is contemplated by the parties that [Jeffrey] will not have the arrearage paid off at the time he begins his medical residency. At the time [Jeffrey] begins, or should begin, his medical residency, then the child support and medical/dental expense arrearage shall be ascertained and support at time shall be modified to the current amount that he should then owe according to the Arkansas Child Support Chart. An additional sum shall be added by agreement of the parties or by a court of competent jurisdiction in Arkansas, to alleviate the arrearage. It is contemplated by the parties that there may be more arrearage subsequent to the execution and entrance of the Decree of Divorce and such arrearage shall be computed at the time [Jeffrey] begins, or should begin, his medical residency and those amounts will be considered in computing the total arrearage that [Jeffrey] owes and shall be calculated in figuring the amount of monies he shall have to pay monthly to cure any arrearage.
In order to keep track of the amount of medical/dental and other healthcare related expenses, [Heather] shall provide [Jeffrey] copies of all billing statements. If [Jeffrey] objects to any such medical expense as being his liability in whole or in part, then he shall, within ten (10) days of receipt, contact [Heather] in writing of his objection to any disputed medical expenses. If [Jeffrey] has objected to any medial expense that is later held to be his expense, then he shall pay any and all court costs, attorneys fees, and other expenses related to this matter.
Each of the parties shall exchange tax returns annually. In the event that [Jeffrey] shall receive any type of income tax refund, then the same shall be paid to [Heather] and she shall credit said sum ...

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