Johnson v. Johnson

678 S.W.3d 418

2023 Ark. App. 464

April JOHNSON, Appellant/Cross-Appellee

v.Bradley JOHNSON, Appellee/Cross-Appellant

No. CV-21-503

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered October 18, 2023

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION [NO. 60DR-05-4859], HONORABLE MACKIE M. PIERCE, JUDGE

LaCerra, Dickson, Hoover & Roger, PLLC, by: Natalie Dickson and Lauren Hoover, Little Rock, for appellant/cross-appellee.

Dusti Standridge, for appellee/cross-appellant.

WAYMOND M. BROWN, Judge

₁April Johnson appeals from the postdivorce order of the Pulaski County Circuit Court that resolved issues of child support and contempt. On direct appeal, April argues the circuit court erred in (1) finding that Bradley Johnson is obligated to pay 25 percent of his bonuses but not his commissions; and (2) crediting payments made directly to April against Bradley’s arrearage. Bradley cross-appeals, arguing the circuit court erred in (1) ordering him to pay support based on a percentage of his total additional income; (2) finding him in contempt; and (3) awarding attorney’s fees to April.¹ We affirm on direct appeal and on cross-appeal.

The parties, who were divorced by decree entered on April 27, 2006, have an extensive history of litigation regarding issues of child support. There were three children born of the marriage. ₂April was awarded custody; Bradley was awarded visitation every other weekend and certain holidays. Bradley was ordered to pay child support in the amount of 25 percent of all net income received from employment, in- cluding bonuses. The circuit court ordered Bradley to pay $1070 a month in child support based on a finding that his net monthly income was $3862, excluding bonuses. In 2007, following a return to court, April’s motion for contempt was denied, and Bradley, via wage assignment, was ordered to pay child support in the amount of $1486 a month. Bradley was further ordered to pay April 25 percent of any and all net bonuses immediately upon receipt of said bonuses and shall include documentation of the actual bonus amount. Shortly thereafter, in an agreed order entered on June 21, Bradley was again ordered to pay child support in the amount of 25 percent of all net income received from employment, including bonuses. The parties agreed, and the court found, that Bradley’s net monthly income, not including bonuses, as defined in Section II of Supreme Court Administrative Order No. 10, was $5064. Consequently, Bradley was ordered to pay $1266 a month in child support. In March 2009, the parties again returned to court to address issues of child support. Bradley was found in willful contempt for his failure to provide wage and income information on a timely basis and for his failure to pay child support in 2007 and 2008, totaling $5598. Judgment was granted in favor of April for that sum, to be paid out of the equity division from the marital residence. A material change in Bradley’s income was also found, which warranted a modification of child support. The circuit court found that Bradley’s net income, not including bonuses, was $5847 a month. He was ordered to pay $1348 monthly, or $674 biweekly, in child support. Bradley was also ordered to pay $3500 in attorney’s fees to April’s counsel for failure to provide discovery in a timely fashion. In August 2010, the circuit court dismissed, without prejudice, April’s September 2009 motion for contempt for lack of proper service. April’s August 2013 motion ₃for modification of child support and other relief was dismissed without prejudice for lack of prosecution pursuant to Arkansas Rule of Civil Procedure 41.

In 2019, April filed yet another motion for an increase in child support, contempt, and other relief. She requested (1) that she be reimbursed for a monthly child-support deficit in the amount of $112 since entry of the last order;² (2) a modification of child support based on Bradley’s increased net income; (3) that any increase be retroactive to the August 2013 modification filing that was dismissed without prejudice; (4) reimbursement for $1300 in orthodontic expenses incurred on behalf of the minor children; (5) proof of all bonuses Bradley received since June 21, 2007; and (6) that Bradley be held in contempt for his failure to provide his tax information as ordered, his failure to pay the $3500 in attorney’s fees as ordered, his failure to provide proof of his bonus amounts, and his failure to pay the proper amounts.

On July 30, 2019, Bradley filed a response to April’s latest motion and, in turn, filed a motion for partial judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). In his motion, Bradley stated that April’s current action requesting retroactive relief to the year 2013 and reimbursement for orthodontic expenses is barred by res judicata, estoppel, and laches. He stated that in August 2013, she filed a motion for modification of child support and other relief seeking mod- ification of child support and reimbursement for the very same orthodontic bills sought in the current petition. Bradley stated that the July 2018 order dismissing the motion for nonprosecution bars any retroactive relief beyond entry of that order.

₄Following a hearing, on February 18, 2020, the circuit court entered an order denying Bradley's motion "in part as to the res judicata element because child support is a right of the child that may be brought individually, unless heard on the merits. This matter was never litigated and there is no statute of limitations issue." The circuit court additionally noted, "There may be a laches element in the lapse of time regarding procurement of evidence, in that records are not kept indefinitely, and [April] demands proof of payment by [Bradley] from 2009 forward." Bradley was ordered to provide April certain tax-related documents and bank records from 2009 forward. Further, the court refused to hold Bradley in contempt for underpayment due to the scrivener’s error—$1848 monthly versus $674 biweekly.

On May 22, 2020, April filed a verified motion for contempt against Bradley, claiming there are outstanding counseling bills and that he repeatedly failed to reimburse her for his one-half.

The outstanding matters were heard on July 24, 2020. On October 21, following posttrial briefs, the circuit court issued a letter opinion stating the following:

I have had an opportunity to review and consider the pleadings, testimony, evidence, and post-trial briefs in this matter, I find the following by a preponderance of the evidence.

[Bradley] shall receive credit for $71,332.00 in direct payments to [April] made between May 2009 and June 2020. However, both parties are advised that the Court will not give credit for any payments made outside of the Clearinghouse in the future. The Court adopts [Bradley’s] argument that commissions and bonuses are separate and distinct forms of income. [Bradley] is ordered to pay twenty-five percent of his net bonuses, but not his commissions.

The Court adopts [Bradley’s] argument that [April] sat on her rights for roughly a decade and permitted [Bradley] to pay for multiple expenditures for the children. The doctrines of estoppel and laches apply and [April] shall not be entitled to any sums of support based upon bonuses prior to the filing of her motion on June 3, 2019. Her recovery shall consist of twenty-five percent of [Bradley’s] net bonuses since the date of the filing of the motion, to be calculated by the attorneys. [Bradley] shall not receive any other specific credits for sums paid to Pleasant Valley Country Club on behalf of the children.

₅[Bradley] is in willful contempt for his failure to timely submit his W-2 forms, failure to provide his tax returns, failure to provide the amounts of his bonuses, and failure to timely pay medical bills. [April] shall submit a fee petition on these issues for the Court’s consideration.

With regard to support from August 1, 2020 forward, the Court finds that the shared income model will apply. For purposes of determining [April’s] gross income, the parties shall utilize only her income from her current employer. [Bradley’s] request to average [April’s] salary over a two year period is denied. Ms. Dickson and Mr. Rowan are directed to use the findings of this letter opinion to calculate the sum of net bonuses due to [April] since June 3, 2019 as well as the current support based upon the shared income model. Ms. Dickson will prepare a precedent with acopy to the Court and to Mr. Rowan, and Mr. Rowan will have five (5) days to object to the form of the precedent.

On June 11, 2021, Bradley filed a motion to reconsider and set aside. It was deemed filed when the order was entered on June 14. In the order, Bradley’s monthly child-support obligation was set at $1356 based on April’s monthly gross income of $7990.45 and Bradley’s monthly gross income of $20,820. Bradley was ordered to pay the minor child’s health-insurance premium in the amount of $124 a month. Bradley was found to have child-support arrears in the amount of $11,388.98 as of July 24, 2020.³ This amount was reduced to judgment with interest. The court also found, based on additional income, that Bradley owed another $16,816.35 for 2018 and another $14,551.31 for 2019, totaling $31,367.66, which was reduced to judgment with interest.⁴ The circuit court ordered that the $31,367.66 plus the $11,388.98 for a total, judgment of $42,756.64 be repaid at the rate of 20 percent of his current monthly child-support obligation. Twenty percent ₆of $1356 was determined to be $271.20 a month; therefore, Bradley was ordered to pay $1627.20 a month in child support until such time as the arrears were paid in full. Once the parties’ last minor child reaches the age of majority, Bradley shall continue to pay child support at his then current rate until the judgment is paid in full. In addition, the circuit court ordered. Bradley to quarterly pay the sum of $2500, with...