FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26DR-13-26]
HONORABLE LYNN WILLIAMS, JUDGE
Ballard & Ballard, P.A., by: Andrew D. Ballard, for
Michael H. Crawford, for appellee.
a case about child support. On January 25, 2018, the circuit
court of Garland County entered an order modifying
Demontie's visitation and increasing his child-support
obligation. Demontie appeals, arguing that the circuit court
did not have jurisdiction to enter the order or
alternatively, that retroactive child support was not
correctly calculated, and the amount of child support was too
much. We affirm but modify the retroactive-support award to
conform with our statute.
and Demontie Cross were married in June 2002 and divorced in
July 2010. Two children were born during the marriage. The
parties were awarded joint custody with Erika to be the
primary physical custodian. Demontie was ordered to pay child
support. Throughout the years, Demontie's child-support
obligation changed as his career progressed. On August 12,
2016, Erika filed a petition to modify transportation,
visitation, and child support. On October 7, 2016, counsel
for Erika emailed Mr. Bogdan Susan, an attorney who had
previously reached out to her on behalf of Demontie, asking
if he would be willing to accept service for Demontie, or if
she needed to send out a process server. A legal assistant
from the firm emailed Erika's counsel back on October 13,
stating that they would accept service. No summons was ever
issued, and no affidavit of service was ever filed.
February 16, 2017, Erika filed the same petition again, a
summons was issued, and Demontie answered. On October 12,
Demontie filed a motion to decrease his child support. A
final hearing was held on December 14, and the court took up
the issues of visitation and child support. At the hearing,
the parties testified about, among other things, their
current living arrangements and finances. At the conclusion
of the hearing, the court invited both parties to submit
proposed findings of fact and conclusions of law in lieu of
closing arguments. Each party submitted proposed findings of
fact and conclusions of law, and each party provided a
written argument as to why the other's order should not
be entered. Relevant to this appeal, the court entered
Erika's proposed order, which set Demontie's
child-support payment at $6, 229.24, based on a net monthly
income of $29, 982.11, and ordered Demontie to pay arrearages
dating back to August 2016, when Erika filed the first
petition. Demontie now appeals.
appeal, Demontie first argues that the circuit court lacked
jurisdiction to entertain Erika's August 12, 2016
petition because he was never served with either the petition
or the summons. Demontie has waived this argument. Unlike
subject-matter jurisdiction, which can be raised at any time,
including for the first time by this court sua sponte on
appeal, personal jurisdiction may be waived by a party.
Vibo Corp., Inc. v. State ex rel. McDaniel, 2011
Ark. 124, at 9, 380 S.W.3d 411, 419. Because this is a case
involving the welfare of children, the court had continuing
jurisdiction. Our rules do not require that a summons be
served when the circuit court has continuing jurisdiction, as
it did here. Wilson v. Wilson, 2016 Ark.App. 191, at
7, 487 S.W.3d 420, 425. In his answer to the petition,
Demontie admits that jurisdiction is proper, and he did not
raise the defense of insufficiency of service of process. Nor
did he move to dismiss the August 2016 petition for failure
of service of process. A defense of insufficiency of service
of process is waived if it is not made by motion under
Arkansas Rule of Civil Procedure 12(g) or in a responsive
pleading. Ark. R. Civ. P. 12(h)(1); see also Wallace v.
Hale, 341 Ark. 898, 900, 20 S.W.3d 392, 394 (2000).
next argues that, in the event his first point on appeal is
unsuccessful, the circuit court committed reversible error in
awarding seventeen full months of back child support. As
previously discussed, Erika filed her first motion for
modification of child support on August 12, 2016. The order
at issue, however, awarded Erika back child support for
"August 2016 through December 2017 in the amount of $2,
879.24 per month for a period of 17 months for a total of
Code Annotated section 9-14-107(d) (Repl. 2015) provides that
child-support modifications are to be retroactively set as of
the filing of the motion for modification. Retroactive
modification of a court-ordered child-support obligation may
be assessed only from the time that a petition for
modification is filed. Yell v. Yell, 56 Ark.App.
176, 178, 939 S.W.2d 860, 862 (1997). Absent a specific
finding of fraud in procuring an existing support decree, it
is an abuse of discretion to impose a retroactive
modification of a support order beyond the filing date of a
petition to modify. Beavers v. Vaughn, 41 Ark.App.
96, 849 S.W.2d 6 (1993). We agree that it was erroneous for
the circuit court to award a full month of child support for
the month of August. In her brief, Erika even conceded this
point. Accordingly, the award of retroactive support is
affirmed; however, it is modified to begin August 12, 2016,
when the petition was filed.
Demontie argues that the trial court committed reversible
error when it did not deviate from the chart in making its
child-support award. It is a rebuttable presumption that the
Arkansas Family Support Chart amount is the correct amount of
support to be awarded. Ark. Code Ann. §§
9-14-107(d), 234(c)(1), and 9-12-312. The amount of support
ordered is within the discretion of the circuit court and
will not be disturbed absent an abuse of discretion.
Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000).
argues that the award was an abuse of discretion because it
(1) exceeds Erika's living expenses, (2) is contributing
to Erika's accumulation of wealth, and (3) is going
toward paying for Erika's third child. He cites
Gilbow v. Travis, 2010 Ark. 9, 372 S.W.3d 319, for
the proposition that a court may grant more or less support
if the evidence shows that the needs of the child require a
different level of support. However, in Huey v.
Huey, we wrote that while a circuit court may deviate
from the child-support chart when the chart exceeds or fails
to meet the needs of the child, we have rejected the argument
that a noncustodial parent does not have to pay child support
pursuant to the chart simply because that amount exceeds a
child's actual needs. 90 Ark.App. 98, 104-05, 204 S.W.3d
92, 96 (2005).
the evidence supports the amount awarded because, at the
hearing, Erika testified that her two daughters with Demontie
have missed opportunities for extracurricular activities such
as travel and basketball camps because of a lack of funds.
She also testified that one of the girls needed braces, and
Demontie would not agree to help pay for them. Accordingly,