Maner v. Maner

1

2023 Ark.App. 256

THOMPSON MANER APPELLANT v. KATHRYN MANER APPELLEE

No. CV-22-272

Court of Appeals of Arkansas, Divisions I & IV

May 3, 2023

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72DR-13-1985] HONORABLE JOANNA TAYLOR, JUDGE AFFIRMED IN PART; REVERSED IN PART

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

Brady & Platt, PLC, by: Kathryn E. Platt, for appellee.

STEPHANIE POTTER BARRETT, JUDGE

This is a second appeal in a child-support modification case. Appellant Thompson Case Maner (Case) appeals the Washington County Circuit Court's order ordering him to continue paying $7000 a month in child support for his two children with appellee Kathryn Maner (Katie). Case makes two arguments on appeal: (1) the circuit court lacked authority to enter the child-support order; and (2) the circuit court erred by failing to apply the chartbased presumptive amount of child support. We affirm the circuit court's authority to act in this matter, but we hold that the circuit court's calculation of child support is clearly erroneous, and we reverse on that point.

I. Facts

In Maner v. Maner, 2021 Ark.App. 472, 639 S.W.3d 368 (Maner I), we held that the circuit court erred in dismissing Case's motion to reduce his child-support obligation on the basis that there was no material change in circumstances; we reversed and remanded the case to the circuit court for further consideration. At the time he requested the modification, Case was paying $7000 a month in child support. On remand, the circuit court took no further evidence; the parties submitted proposed orders to the circuit court. Case's proposed order reduced his child-support obligation from $7000 a month to $1858 a month retroactive to July 1, 2020. Katie's proposed order which the circuit court entered on January 28, 2022, found it was in the children's best interest for Case's child-support obligation to remain at $7000 a month. An amended order was filed on February 1, 2022, to correct a scrivener's error. Case filed a notice of appeal on February 15.

Later on the afternoon of February 1, after signing the amended order on appeal, Circuit Judge Joanna Taylor filed an order of recusal in this case. The reason given for the recusal was that the administrative plan for the Fourth Judicial District provided that she would recuse from all pending domestic-relations cases not having related orders of protection, and those cases would be assigned to other divisions.

On February 15, Case moved to vacate the January 28 and February 1 orders pursuant to Rules 60 and 59(a)(6) of the Arkansas Rules of Civil Procedure. Case based his Rule 60 argument on the fact that his counsel had only recently learned that the Fourth Judicial District's administrative plan provided that on December 31, 2021, Judge Taylor would recuse from all pending domestic-relations cases not having related orders of protection. Case argued that the administrative plan automatically recused Judge Taylor from hearing his case as of December 31, 2021, and she therefore lacked the authority to enter the January 28 and February 1, 2022 orders. Under Rule 59(a)(6), Case argued that there was no evidence to support a refusal to decrease his child-support obligation, given that there had been a significant reduction in his income and that there was no evidence to support an upward deviation in the chart child-support amount. This motion was not ruled on by the circuit court. Case filed a second notice of appeal on March 15 to include his deemed-denied motion.

As set forth in Maner I, when Case and Katie divorced in December 2013, they agreed to share joint custody of their minor sons, with Case paying $8809 a month in child support-$8000 to Katie, and $809 into a trust for the children. The parties agreed that if Case's child support was reduced, the trust payments would terminate, and all child support would be paid directly to Katie. The parties further agreed to split the costs of the children's Montessori school and any agreed upon summer camps as well as the cost of the children's health-insurance premiums and any medical bills not covered by insurance.

In May 2019, the parties entered an agreed order modifying Case's child-support obligation to $7000 a month due to a material change in circumstances. The parties further agreed to equally split the costs of airfare for the children to travel to tennis tournaments; the fees for tennis tournaments; tennis memberships and lessons; School of Rock fees; school lunches and field trips; and any other agreed-upon extracurricular activities.

Case filed the current motion to decrease his child-support obligation in January 2020; Katie then filed a counterpetition to decrease the amount of her child-support setoff. In the October 1, 2020 order dismissing both petitions for failure to show a material change in circumstances, the circuit court found each party paid approximately $200 a month in health-insurance premiums for the children; over the last fourteen months the noncovered medical and dental expenses had totaled $914, with each parent responsible for one-half; and the parties had spent a total of $22,872 in the last fourteen months for the children's cell phones and extracurricular activities, with each party being responsible for one-half. Even though the circuit court found that the incomes of both parties had decreased-Case's from $62,484.50 a month in 2018 to $53,468.08 a month in 2019, and Katie's from $12,779 a month in 2018 to $10,911 a month in 2019-it determined that was not a material change of circumstances sufficient to modify child support. After this court reversed and remanded that finding in Maner I for further consideration, the circuit court ordered Case's monthly child-support obligation to remain at $7000.

II. Authority to Enter Child-Support Order

Case first argues that the order entered by Judge Taylor on January 28 and the amended order entered on February 1, 2022, are void because the Fourth Judicial District's administrative plan provided that on December 31, 2021, Judge Taylor would recuse herself from all pending domestic-relations cases that did not have related orders of protection, which their case did not have. He contends that Judge Taylor was automatically recused from their case as of December 31, 2021, pursuant to the administrative plan, and therefore, she did not have authority to enter orders in this case after that date. We disagree.

Arkansas Supreme Court Administrative Order No. 14 regulates the administration of the circuit courts in Arkansas. Subsection 3 of that administrative order requires each judicial district, by majority vote, to adopt an administrative plan for the assignment of cases; subsection 4 provides that each judicial district's administrative plan be approved by the supreme court.

The Fourth Judicial District's administrative plan, effective January 1, 2022, specifically provided, "On December 31, 2021, to implement the above redistribution of the pending Division 7 domestic relations cases, Judge Taylor will recuse from all pending domestic relations cases that do not have related order of protection cases...." Maner I was handed down by this court on December 1, 2021; the mandate issued on January 4, 2022, reversing and remanding the case to circuit court. Case moved for entry of final order on January 24, 2022, attaching his proposed order; the circuit court instead entered Katie's proposed order on January 28, and the amended order on February 1.

Case contends that administrative orders are equivalent to court rules, and therefore, the same standard of review applies to the construction of administrative orders as applies to construction of court rules-it is a question of law, which is reviewed de novo. Mullenix v. Mayberry, 2023 Ark.App. 139, ___S.W.3d ___. He argues that in construing Administrative Order No. 14's language and giving the words their ordinary and usually accepted meaning, Judge Taylor was recused from the case as of December 31, 2021.

We hold that Judge Taylor had the authority to rule in this case. All of the sections of Administrative Order No. 14 must be read together, and subsection (3)(c)(1) provides that there must be a plan for recusals, and the recusal process shall be consistent with the requirements of Administrative Order No. 16. That order provides that a judge recusing himself or herself from a case shall file an order of recusal; then the case-management system will randomly assign the case to another judge. Therefore, the administrative plan did not automatically recuse Judge Taylor from the present case; by the mandates of Administrative Order No. 16, she was not recused until she signed an order of recusal, and that did not occur until after she entered the order now on appeal. We affirm on this point.

III. Upward Deviation of Child-Support Obligation

Case also argues that the circuit court erred in deviating upward from the chart-based presumptive amount of child support. We hold that the circuit court abused its discretion in deviating upward from the presumed chart-support amount, and we reverse that decision.

Our 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. David v. David, 2022 Ark.App. 177, 643 S.W.3d 863. On appeal, we give due deference to the circuit court's superior position to determine the credibility of the witnesses and the weight to be given their testimony. Id. In determining child support, the amount of support lies within the sound discretion of the circuit court, and those findings will not be reversed absent an abuse of discretion, but a circuit court's conclusions of law are...