David v. David

682 S.W.3d 327

2023 Ark. App. 568

James DAVID, Appellant

v.Brittany DAVID, Appellee

No. CV-22-552

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered December 6, 2023

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72DR-19-730], HONORABLE JOHN C. THREET, JUDGE

Cullen & Co., PLLC, by. Tim Cullen, for appellant.

Putman Law Office, by: William B. Putman, for appellee.

KENNETH S. HIXSON, Judge

₁Appellant James David (James) appeals from the Washington County Circuit Court’s order modifying child support filed on July 22, 2022, in favor of appellee Brittany David (Brittany).¹ In this appeal, James contends that (1) the circuit court’s decision on his motion to modify child support was clearly erroneous, and (2) the circuit court erred by refusing to apply the modified child-support amount retroactively to the date the motion was filed. We disagree and affirm.

₂To offer a preview for context, a few months after the decree had been entered and child support and spousal support had been agreed upon by the parties, James’s income increased by approximately $35,000 annually. Brittany petitioned for a commensurate increase in child support pursuant Arkansas Supreme Court Administrative Order No. 10. In the interim and before the petition for modification came for trial, the supreme court issued Revised Administrative Order No. 10, which dramatically changed the formula to calculate child support.² As a result of the 2020 Revised Rule 10 becoming effective, James filed a counterpetition requesting a decrease in his child support from $2,458.54 a month to $900 a month, despite the fact that his income had increased by $35,000 annually. Hence, the litigation and appeals.

I. Relevant Facts

The parties were married on December 22, 2006, and three children were born of the marriage. A decree of divorce was filed on May 28, 2019. The decree approved and incorporated—but specifically did not merge—the parties’ property, child-custody, and support agreement (PSA). According to the PSA, the parties agreed to share joint custody ₃and equal time with the minor children. Regarding child support, the PSA provided the following in pertinent part:

That [James] is ordered to pay child support in the amount of Two Thousand Four Hundred and Fifty-Eight Dollars and Fifty-Four Cents ($2,458.54) per month, based upon offsetting the parties incomes, with the next payment being due on July 1, 2019, and on the 1st day of each and every month thereafter. The child support is offsetting and is calculated based upon the difference between the parties’ net take home pay. Specifically, [James’s] full support obligation is $2,988.54 per month (based upon a net monthly take home pay of $12,410.18), and [Brittany’s] full support obligation is $530.00 per month (based upon an imputed net monthly take pay of $1,282.86 per month), yielding an offsetting support obligation of $2,458.54 to be paid by [James] to [Brittany], on a monthly basis.

Additionally, the PSA required James to provide medical insurance with the parties equally splitting any uncovered medical expenses. Also, the PSA required James to pay Brittany $2,500 a month in alimony for thirty months unless Brittany remarried, cohabited with a romantic partner, or died before the expiration of the thirty months. And, important for this discussion, the divorce decree provided in pertinent part that a "change in gross income in an amount equal to more than twenty percent (20%) or more than $100.00 per month shall constitute a material change of circumstances sufficient to petition the court for review and modification of the child support."

On March 31, 2020, less than a year after the divorce decree was entered, Brittany filed a petition for modification of child support alleging that there now existed a material change in circumstances in that James’s income had increased substantially while hers had not. Therefore, she requested that child support be increased and recalculated using the same ₄formula as the parties agreed on and used in the parties’ PSA and that the increase be made retroactive.

James filed his response, praying that Brittany’s petition be denied and filed a counterpetition for modification of child support also alleging that a material change of circumstances had occurred, requiring a retroactive modification of child support in accordance with the Old Rule 10.

While the counterpetitions to modify child support matriculated through the court system, the Arkansas Supreme Court made dramatic changes to Administrative Order No. 10. The new Revised Administrative Order No. 10 became effective for "all support orders entered after June 30, 2020," including orders modifying child support. In re Implementation of Revised Admin. Ord. No. 10, 2020 Ark. 131, at 1, 2020 WL 1643491 (per curiam).

After Revised Administrative Order No. 10 became effective, each party filed amended petitions and added other claims, including claims for discovery violations and contempt.³ With the exception of the competing motions to modify child support, the parties resolved all other pending issues.

₅A hearing on the competing petitions to modify child support was held on October 27, 2020. At the outset of the hearing, Brittany orally withdrew her petition to increase child support, but James did not withdraw his petition to decrease child support. The circuit court granted Brittany’s motion, and the hearing commenced on James’s counterpetition for modification to decrease child support. Each party introduced into evidence several exhibits, including affidavits of financial means, child-support worksheets, and the PSA. James also offered expert testimony regarding the implementation of Revised Administrative Order No. 10.

James testified that he had filed an amended counterpetition to modify and decrease his child-support obligation on July 13, 2020, which was after Revised Administrative Order No. 10 took effect. James requested that his child support be modified, decreasing the amount of his support under the provisions of Revised Administrative Order No. 10 from $2,458.54 a month to $900 a month and made retroactive to the filing of his counterpetition. James argued that this reduction in child support was in the best interest of the children.

In support of his request to decrease child support, James testified that he had three sources of income at that time, including severance or retirement income from Simmons Foods, the City of Springdale, and the Arkansas Air National Guard. James further testified ₆that his income had increased approximately $35,000⁴ annually since the entry of the divorce decree in May 2019. James testified that he provides medical insurance for the children at a cost of $132.12 a month and further stated that he should receive a deduction in the amount of $913 a month for work-related child-care expenses. James testified that while he was currently unemployed and receiving income in a severance package, he was looking for a new position and would still need child care. James maintained his position that a reduction in child support was in the children’s best interest because he shared joint custody with equal time and because of the new revisions to the child-support guidelines.

James called Chris Bedwell as an expert witness regarding the implementation of Revised Administrative Order No. 10 and to provide an opinion on the amount of James’s child support under the revision.⁵

Bedwell testified that the methodology used to arrive at the new support charts is based on data on family income and expenditures on children and what it actually costs to raise children rather than just giving a straight percentage of one person’s income to another. He acknowledged this was a fundamental change in the way child support is calculated. Bedwell testified that the revised rule now considers the parties’ gross incomes rather than net incomes and that alimony is now deducted in the calculation of gross income. He further stated that it is contemplated that the court has discretion to ₇make additional adjustments to child support in joint-custody arrangements, taking into consideration the number of days that the children stay with each parent.

Regarding this case, Bedwell produced his report and calculations based on his interpretation of the new guidelines. Pertinent to the issues herein, Bedwell’s testimony indicates that after he determined James’s gross income and calculated James’s share of the basic child-support obligation at $2,869.01 a month, he reduced James’s basic child-support obligation for two reasons: (1) James paid the cost of the children’s health insurance in the amount of $182.12 a month, and (2) the cost of work-related child-care expenses in the amount of $913 a month "that [James] bears," These two reductions ultimately decreased James’s presumptive child support to $2,244 a month.

However, the calculation of this presumptive child-support amount did not exhaust Bedwell’s reductions for James’s ultimate child-support obligation. Bedwell indicated that Revised Administrative Order No. 10 allows the court discretion to further reduce the presumptive child-support amount to account for joint custody. To that end, pursuant to Revised Administrative Order No. 10, because James and Brittany each have the children 182.5 nights a year, Bedwell took the presumptive child-support amount for each parent and multiplied it by 50 percent, which represented the equal shared time spent with the children. Bedwell then reduced James’s monthly presumptive child support from $2,244 to $1,122. Bedwell made similar calculations for Brittany’s presumptive child support and determined her reduced child-support obligation was $222 a month. Mr. Bedwell then netted those two numbers to "equalize the relative obligation" and determined James’s relative "shared ₈custody obligation" was $900 a month. Thereupon, Bedwell opined that James’s child-support obligation should be reduced from...