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Fischer v. Fischer

Court of Appeals of Arkansas, Division III

October 31, 2018

MELANIE FISCHER (JASKIEWICZ) APPELLANT
v.
MICHAEL FISCHER APPELLEE

          APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63DR-10-535] HONORABLE ROBERT HERZFELD, JUDGE

          Riggan Law, by: Kimberly Eden, for appellant.

          One brief only.

          BART F. VIRDEN, JUDGE

         Appellant Melanie Fischer (Jaskiewicz) appeals from the Saline County Circuit Court's order granting her petition to modify child support. On appeal, Melanie argues that the trial court erred in modifying child support based solely on appellee Michael Fischer's affidavit of financial means (AFM), which resulted in a "meager" increase in child support, and that the trial court instead should have averaged Michael's income over the last three or four years.[1] We find no error and affirm.

         I. Procedural History

         The parties were married in October 1997 and divorced in May 2011. Melanie was awarded custody of their three children, and Michael was ordered to pay $1, 703 biweekly child support.[2] On November 15, 2016, Melanie filed a petition to modify child support, alleging that there had been a material change in circumstances in that Michael's income had increased. The trial court granted Melanie's petition in part. She filed a motion for reconsideration, which was deemed denied.

         II. Administrative Order No. 10

         In determining an appropriate amount of child support, courts are to refer to the most recent revision of the family-support chart in Arkansas Supreme Court Administrative Order Number 10, which provides a means of calculating child support based on the payor's net income. Ark. Code Ann. § 9-12-312(a)(3)(A) (Repl. 2015). There is a rebuttable presumption that the amount of child support contained in the family-support chart is the correct amount of child support to be awarded. Ark. Code Ann. § 9-12-312(a)(3)(B); Ark. Sup. Ct. Admin. Order No. 10(I). "Income" means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions. Ark. Sup. Ct. Admin. Order No. 10(II)(a). The definition of "income" is "intentionally broad and is designed to encompass the widest range of sources consistent with this State's policy to interpret 'income' broadly for the benefit of the child." Id.; Evans v. Tillery, 361 Ark. 63, 70, 204 S.W.3d 547, 552 (2005) (quoting Ford v. Ford, 347 Ark. 485, 495, 65 S.W.3d 432, 439 (2002)). The affidavit of financial means shall be used in all family-support matters. Ark. Sup. Ct. Admin. Order No. 10(IV).

         III. Hearing Testimony

         Michael Fischer testified that he is a doctor employed by Practice Plus. He explained that he works as a hospitalist for Baptist Hospital ("Baptist") in North Little Rock. He stated that he is a W-2 employee and is paid biweekly but that he also earns 1099 income from working for hospitals other than Baptist. Michael stated that he sometimes receives bonuses from Baptist depending on his collections for the month but that he had "not really made a bonus from them in a long time." He testified that, even though he had not been ordered to do so, he had paid Melanie a portion of his quarterly bonuses and 1099 income in 2015 and 2016 because "it was the right thing to do." Evidence of those additional payments was submitted, including three checks written to Melanie in 2015 totaling $7, 390 and three checks written in 2016 totaling $5, 500.

         Michael also submitted federal income-tax returns, plus exhibits, for 2014, 2015, and 2016. His 2014 tax return, filed jointly with his current spouse, reflected an adjusted gross annual income of $373, 942, including a net profit of $1, 673 from his chart-review business. His 2015 tax return, also filed jointly with his spouse, showed an adjusted gross annual income of $430, 550, including a net business profit of $43, 510 from his 1099 income. Michael's 2016 tax return, filed separately from his spouse, showed an adjusted gross annual income of $288, 487, including a net profit of $20, 827 from his 1099 income.

         Michael stated that his 1099 income had decreased because the non-Baptist hospitals had "a full complement of full-time hospitalists" and did not need him. Michael said that his 2016 income was not as much as before because (1) there was no extra work available, (2) there had been "a decrease in reimbursements on my regular job," (3) given "the current situation with Medicare and all," physicians are not being paid as much as in the past, and (4) "Medicaid has had cuts over the years." He insisted that he would have worked more if he could have but that he could not.

         Michael's AFM was introduced into evidence. It reflects gross wages per pay period in the amount of $10, 128.74 and $3, 841.02 in deductions, leaving him with a net biweekly income of $6, 287.72. Under a section entitled "Other Income," Michael wrote that another source was "other jobs" and that the amount was $0 but "variable." He testified that when he filled out the AFM, he had not done any extra work but that he had since worked a couple of nights at Saline Memorial Hospital, which is not owned by Baptist. Michael attached to his AFM three pay stubs from Baptist dated March 9 and 23, 2017, and April 6, 2017, reflecting current total gross wages of $13, 128.74, $11, 928.74, and $10, 128.74, respectively. Michael explained that the totals ...


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