Holloway v. Holloway

          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04DR-16-2082] HONORABLE SCOTT JACKSON, JUDGE

          Cullen & Co., PLLC, by: Tim Cullen, for appellant/cross-appellee.

          Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellee/cross-appellant.

          WAYMOND M. BROWN, JUDGE

         In this divorce action, Christopher S. Holloway (who is known as Shawn and will be referred to as such herein) appeals the order of the Benton County Circuit Court. He asserts that the court erred by "imposing an unreasonable financial burden on [him] by awarding retroactive and current support without any finding establishing [his] income, without the mandatory reference to the child support chart, and without considering applicable factors supporting a downward deviation." Shawn also challenges the division of the parties' property. Tori D. Holloway (Tori) cross-appeals arguing (1) equal division of the marital home was erroneous, and (2) the award of additional visitation beyond what was exercised during the parties' long separation was not in the children's best interest. We affirm the circuit court's order.

          Shawn and Tori were married on June 1, 2001, and filed for divorce in December 2016. The divorce decree entered on March 12, 2018, distributed the marital assets, debts, and property between the parties, and also established the custody, visitation, and child-support obligations of the parties with regard to the four children born of the marriage.

         Following the entry of the divorce decree, Shawn filed a motion for reconsideration urging the court to reconsider the child-support award due to the totality of the financial burden placed on him as a result of having to pay current and retroactive child support, half of the children's private-school tuition, and also contribute toward their extracurricular activities and medical expenses. In response, Tori urged the circuit court to deny the motion stating that Shawn had "not complied with any recognized procedure to alter the decree" as required under Rule 59 or Rule 60 of the Arkansas Rules of Civil Procedure. Shawn replied, alleging that the child-support award was excessive and, although not explicitly stated, his motion for reconsideration should be considered a motion for a new trial under Arkansas Rule of Civil Procedure 59.

         Arkansas Rule of Civil Procedure 59(b) provides

A motion for a new trial shall be filed not later than 10 days after the entry of judgment. A motion made after entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.

         Here, the motion was filed on March 23 and was deemed denied thirty days later on April 24.^[1] Shawn filed his notice of appeal on April 9, which was prior to the deemed denial of his postjudgment motion. While a notice of appeal filed before disposition of any motion to alter, amend, or set aside a judgment shall be treated as filed on the day after entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law, such a notice is only effective to appeal the underlying judgment, decree, or order, not the postjudgment motion.^[2] Shawn's failure to file an amended notice of appeal following the deemed denial of the postjudgment motion is fatal to our appellate review of the issues raised therein.

         We review divorce cases de novo on the record.^[3] We will not reverse a circuit court's finding of fact in a divorce case unless it is clearly erroneous.^[4] A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made.^[5]

         I. Shawn's Direct Appeal

         Shawn contends that the circuit court erred in (1) not making a finding regarding his income, (2) ordering child support at a rate of $725 biweekly, and (3) not referencing the child-support chart. We note that Shawn also took issue with the circuit court's award of retroactive child support and failure to consider factors supporting a downward deviation from the family support chart. However, because Shawn failed to raise these arguments below, they are waived on appeal.^[6]

         Case law provides that in setting child support, reference to the family support chart contained in Administrative Order No. 10 is mandatory.^[7] It establishes a rebuttable presumption that support awarded pursuant to the chart is the appropriate amount of support and can be modified only upon written findings stating why the application of the chart amount would be unjust or inappropriate.^[8] When the amount of child support is at issue, we will not reverse the circuit court absent an abuse of discretion.^[9]

         Shawn first challenges the circuit court's failure to make a finding regarding his income. He asserts, for the first time on appeal, that there is conflicting evidence as to what his income is for child-support purposes. In support of his contention, he relies on Tori's testimony that Shawn's 2016 W-2 showed a net income of $49, 804, which amounts to $957 per week. However, that testimony was provided for purposes of calculating retroactive child support.^[10] In the parties' temporary order, Shawn agreed to pay child support in "the sum of $725.00 bi-weekly based on the bi-weekly take home pay of $2677.00 . . . ." Furthermore, in the divorce hearing, Shawn acknowledged, "[a]fter taxes, my biweekly take-home pay is around $2600." Notably, his affidavit of financial means also indicates a net biweekly pay ...