FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTEENTH DIVISION
[NO. 60DR-15-5023] HONORABLE VANN SMITH, JUDGE
& Stotts, PLLC, by: Jocelyn A. Stotts, for appellant.
Law Firm, by: Lee D. Short, for appellee.
F. VIRDEN, Judge
appeal arises out of a paternity and child-support case. The
Pulaski County Circuit Court entered orders finding appellee
Arthur Cyrus to be the father of two children born to
appellant Dominika Szwedo, awarded custody of the children to
Szwedo, and ordered Cyrus to pay $8, 333 a month in child
support. The court declined Szwedo's request for
approximately $450, 000 in retroactive child support. The
court ordered Cyrus to establish college savings accounts for
each child of at least $100, 000. On appeal, Szwedo argues
six points. We affirm in part and reverse in part. We remand
for further proceedings consistent with this opinion.
parties met in 2003 while attending medical school in Poland
and soon began dating. Cyrus returned to the United States in
2004, and Szwedo followed in 2006 when she began her
residency in New York City. The exact nature and extent of
the parties' relationship was contentious and disputed.
Two daughters were born to Szwedo, A.R.C. in 2010 and A.G.C.
in 2013. The parties separated for good in the summer of
December 2015, Cyrus sued to establish paternity of the
children and requested joint custody. Szwedo answered and
counterclaimed for custody, to set visitation, and for child
support, both current and retroactive to each child's
birth. Cyrus answered the counterclaim, admitting the
paternity of the children but denying the remaining
allegations. Cyrus amended his answer to Szwedo's
counterclaim on May 9, 2017, to plead the affirmative
defenses of estoppel, laches, payment, set off, waiver, and
15, 2017, at the beginning of the two-day trial, the circuit
court entered a paternity decree that found Cyrus to be the
father of A.R.C. and A.G.C. and incorporated and approved the
parties' agreement as to custody and visitation. The
agreement provided that the parties would have joint legal
custody of the children with Szwedo having primary physical
custody and Cyrus having visitation. The agreement covered
visitation in great detail and provided that the issues of
the children traveling outside Arkansas and outside the
United States were reserved for the final hearing. Also
reserved for trial were the issues of current and retroactive
child support and payment of the attorney ad litem's
trial, the court heard testimony about both parties'
incomes. Szwedo calculated Cyrus's income for
child-support purposes and his child-support obligation based
on the tax returns he produced and sought a net judgment for
a retroactive child-support arrearage of approximately $450,
000. There was also extensive testimony about the nature of
the parties' relationship. Szwedo testified that Cyrus
was abusive, had raped her, and had threatened to kill her.
She further testified that she was afraid Cyrus would
disappear with the children if he were allowed to travel
outside Arkansas or internationally with the children. Cyrus
testified that he opened joint bank accounts with Szwedo and
that he had supported the children through housing and
financial support. The court also heard recommendations from
the attorney ad litem.
28, 2017, the court issued an order from the final hearing.
After adopting the paternity decree, the court recounted a
brief history of the parties' relationship before
addressing the reserved issues. The court found that it was
in the best interest of the children to have the opportunity
to visit with their extended family on both sides and that
there was no reason that the children should not be allowed
to travel internationally with either parent. The court did
order certain safeguards to allay some of Szwedo's
court noted that Szwedo was claiming that she was entitled to
upwards of $450, 000 in retroactive child support and that
the parties disagreed over the extent of Cyrus's
financial involvement and support before filing this action.
After noting that it could consider the circumstances in
awarding retroactive child support, the court found that it
would be fundamentally unfair to award the full amount of
retroactive support sought. The court did not specifically
order any amount of retroactive support but ordered that
Cyrus establish a 529 account or similar savings plan for
each daughter valued at $100, 000 each to prepare for their
to prospective support, the court considered Cyrus's
2014, 2015, and 2016 income, as well as his income to date in
2017. The court found that Cyrus's net income may vary
from $30, 000 to $50, 000 a month depending on the amount of
work he completes. Some of the variation resulted from Cyrus
forgoing some shifts in order to exercise his visitation. The
court found Cyrus's net income to be $40, 000 a month.
Pursuant to the guidelines, the court calculated the total
current child-support obligation to be $8, 333 a month. The
court found that $8, 333 was a fair amount of child support
considering the needs of the children, the income of both
parties, and the fact that Cyrus's income may deviate
from month to month.
court ordered the parties to equally divide the remaining
balance of $11, 530 due and owing on the attorney ad
filed a motion seeking $111, 706 in attorney's fees and
$7, 060 in costs, for a total $118, 766. Cyrus responded to
Szwedo's motion for fees and sought his own award of
fees. He sought $84, 897 in attorney's fees and $36, 931
in costs, for a total of $121, 828. He asserted that Szwedo
necessitated the fees by making unfounded allegations of
abuse and unnecessary discovery requests.
filed a motion to amend the court's findings and to
modify the order, noting that there may be a prohibition to
an order directing funds to an interest-bearing account.
Cyrus argued that the court may grant less child support than
the chart amount if warranted by the specific circumstances
of each case. Cyrus sought to have the court amend its order
to find that his retroactive child-support obligation since
the birth of the parties' oldest child through the entry
of the first child-support order was $450, 000. Cyrus
suggested that the court could then apply a deviation
analysis to find that the proper amount of retroactive child
support was $200, 000. He continued, arguing that the court
could then find that he had satisfied that obligation by
funding the two educational accounts. Szwedo responded to the
motion, arguing that there was no legal or factual basis for
the relief Cyrus sought.
August 11, 2017, the circuit court entered an order
addressing the various posttrial motions. The court noted
that the matter was hotly contested and that the parties
cared very little about one another. The court first
addressed Szwedo's request for retroactive child support
and whether Cyrus provided in-kind support while the parties
resided together. Although the court had difficulty
determining which party was telling the truth about their
relationship, it had no doubt that the children had been
supported by both parties to some extent. The court found
that Szwedo failed in her burden of proof to show that Cyrus
had not supported the children from 2010 to 2015, based in
part on Szwedo's lack of credibility due to her behavior.
The court found Cyrus to be more credible. The court noted
that it could have been clearer in stating that no
retroactive support was owed and that the provision regarding
the educational accounts was simply a means to provide for
the children's education.
court also took up the issue of attorney's fees. The
court noted that the attorneys spent an "inordinate
amount of time representing their client even though the
issues presented were not particularly novel or unique."
The court also noted that the custody and visitation issues
were ultimately settled. After considering the factors
provided in case law, the court ordered Cyrus to pay Szwedo
$20, 000 in attorney's fees. Each party was to bear the
balance of their attorney's fees and costs. This appeal
standard of review for an appeal from a child-support order
is de novo on the record, and we will not reverse a finding
of fact by the circuit court unless it is clearly erroneous.
Ward v. Doss, 361 Ark. 153, 158, 205 S.W.3d 767, 770
(2005) (citing McWhorter v. McWhorter, 346 Ark. 475,
58 S.W.3d 840 (2001)). In reviewing a circuit court's
findings, we give due deference to that court's superior
position to determine the credibility of the witnesses and
the weight to be accorded to their testimony. Id. at
158, 205 S.W.3d at 770. As a rule, when the amount of child
support is at issue, we will not reverse the circuit court
absent an abuse of discretion. Id., 205 S.W.3d at
770. However, a circuit court's conclusion of law is
given no deference on appeal. Id., 205 S.W.3d at
first argues that the circuit court erred in allowing Cyrus
to amend his answer to her counterclaim five days before
trial to assert the affirmative defenses of estoppel, laches,
payment, setoff, waiver, and satisfaction. Cyrus argues that
the point is not preserved for our review because
Szwedo's argument on appeal-that Cyrus did not timely
raise the affirmative defenses-is not an objection ...