Smith v. Smith

2022 Ark. App. 514

656 S.W.3d 198

Mary SMITH, Appellant

v.Jonathan SMITH, Appellee

No. CV-21-550

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered December 14, 2022

Barry E. Coplin, Little Rock; and Montgomery Wyatt Hardy, PLC, by: Betty J. Hardy, Little Rock, for appellant.

Dusti Standridge, for appellee.

KENNETH S. HIXSON, Judge

Appellant Mary Smith and appellee Jonathan Smith were divorced by a decree entered on June 22, 2021. The trial court ruled that the parties will share joint legal and physical custody of their two children, MC1, born in 2009, and MC2, born in 2012. The trial court ordered Jonathan to pay $1196.23 in monthly child support and denied Mary's request for alimony. The trial court also divided the parties’ marital property, purporting to divide it equally.

Mary now appeals from the divorce decree. Mary challenges the award of child support, arguing that the trial court erred in imputing income to her for purposes of setting the child support and that the trial court erred in using a methodology inconsistent with the provisions of Administrative Order No. 10. Mary also contends that the trial court erred in imputing income to her for purposes of alimony and in denying her alimony request. Finally, Mary argues that the trial court erred in making an unequal division of the parties’ bank accounts. We reverse and remand on each of these issues, as explained herein.

I. Standard of Review

Our standard of review in domestic-relations cases is well settled. This court reviews domestic-relations cases de novo, but we will not reverse the trial court's findings unless they are clearly erroneous. Doss v. Doss , 2018 Ark. App. 487, 561 S.W.3d 348. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. Due deference is given to the trial court's superior position to determine the credibility of witnesses and the weight to be given their testimony. Id. As to issues of law, however, we give no deference to the trial court; rather, we review issues of law de novo. Hargrove v. Hargrove , 2015 Ark. App. 45, 453 S.W.3d 683.

II. Facts and Procedural History

Mary and Jonathan were married on May 25, 2002. The parties separated in October 2019, after which Mary remained in the marital home and Jonathan moved to a nearby apartment. On October 28, 2019, Mary filed a complaint for divorce, and on the following day Jonathan filed an answer and a counterclaim for divorce. On June 9, 2020, the parties entered into an agreed temporary order whereby they agreed to share joint legal and physical custody of the children, with their time with the children being divided equally in a week on/week off fashion. The final divorce hearing was held on May 19, 2021.

Mary is a school teacher. Mary testified that after the parties married, she taught for five years at a public school. After MC1 was born, the parties agreed that Mary would be a stay-at-home mother, and Mary stayed at home to raise MC1 and MC2 for the next seven years. When MC1 reached school age, the parties agreed that he would be enrolled at Baptist Preparatory School (Baptist Prep). Baptist Prep is a private school, and Mary explained that this decision was based on Jonathan's rich family history with the school. Jonathan and his siblings had all graduated with honors from Baptist Prep. When MC2 reached school age, he, too, was also enrolled at Baptist Prep.

By agreement of the parties, Mary began teaching at Baptist Prep when MC2 was enrolled in August 2016. Mary has taught there ever since, and she earns an annual salary of $28,680. Mary stated that because she is employed as a teacher at Baptist Prep, the children receive a discount on their tuition.¹ Mary testified that after the parties’ separation, Jonathan changed his mind about the children being enrolled at Baptist Prep and thought they should go to a public school to save money. Jonathan told Mary that he did not object to the children remaining at Baptist Prep as long as Mary paid for it, and since that time, Mary (with the assistance of her parents) has paid the children's tuition. Mary stated that Baptist Prep provides an excellent education as well as an educational-therapy program and that both children are performing well.

Mary acknowledged in her testimony that if she worked in the public-school system, she could earn approximately double what she earns at Baptist Prep. Mary stated that, since the parties’ separation, Jonathan has told her "in a very insulting manner" that she was underemployed and that she needed to make more money somewhere else. Mary, however, stated that she preferred to remain at Baptist Prep where the children are enrolled and that she would continue to teach there.

Mary stated that in addition to the tuition discount, there are other advantages to teaching at the school where the children are enrolled. Mary stated that she is available for the children at school when they have issues, including coping with the divorce, and that she is able to coordinate their therapy and counseling at the school. Mary also stated that she brings the children home from school with her even during the weeks when Jonathan has custody. On those weeks, the children stay at Mary's house after school doing homework or other activities until Jonathan gets off work and comes to pick them up.

Mary also testified that she was seeking alimony from Jonathan and stated that she thought $2500 a month for a period of five years would be appropriate. Mary stated that alimony would assist her with pursuing a two-year online program to earn a master's degree, which would increase her income potential.

Jonathan is employed at Vestcom International where he has worked for fourteen years, and at the time of the divorce hearing, he earned an annual salary of $170,168. Jonathan testified that although he and Mary mutually agreed during their marriage that the children would attend Baptist Prep, he thought that the children should now be placed in a public school. Jonathan stated further that Mary is capable of working as a public-school teacher earning substantially more money than she earns at Baptist Prep. He thought that, for purposes of the child-support and alimony issues, Mary's annual income should be imputed at $50,000. Jonathan testified that Mary needed to "reduce her dependence on [him] and provide for what she needs for her children." Jonathan asked that, if any alimony was awarded, it be limited in duration and amount.

On June 22, 2021, the trial court entered a divorce decree. In the decree, the trial court ordered that the parties share joint legal and physical custody of the children, with their time with the children being divided equally in a week on/week off fashion. The trial court denied Mary's request for alimony, and found:

[Mary's] request for spousal support is denied. The Court weighed the ability and need of each Party and other factors and finds that [Mary] did not establish a need sufficient to warrant an award of spousal support due to her ability to obtain employment at twice her private school income and other resources. Her testimony was that she would double her income based on her current education and experience by teaching in public schools, but she has chosen employment at the private school the parties’ children attend. The Court imputes a gross salary of $50,000.00 a year or $4,166.67 a month to [Mary].

With respect to child support, the trial court also imputed income of $50,000 a year—or $4166.67 a month—to Mary, and the trial court found that Jonathan's monthly income was $14,314. As will be more fully explained below in our analysis of the child-support issues, the trial court purported to apply Administrative Order No. 10 but then used the shared parenting worksheet from the South Carolina Department of Social Services to arrive at Jonathan's monthly child-support obligation of $1196.23. The trial court awarded the marital residence to Mary, subject to her responsibility for the debt and her payment of one-half the value of the equity to Jonathan. The trial court evenly divided the parties’ respective retirement accounts. Finally, the trial court awarded any checking or savings accounts in either party's individual name as that party's separate property because the parties’ joint accounts had been closed and divided in May 2020.

III. Analysis

In this appeal from the divorce decree, Mary argues that the trial court erred in arriving at its child-support award, erred in its decision to deny her alimony, and erred in dividing the parties’ property. We review each argument in turn.

A. Child Support

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 trial court unless it is clearly erroneous. David v. David , 2022 Ark. App. 177, 643 S.W.3d 863. In reviewing a trial court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be given to their testimony. Id. In a child-support determination, the amount of child support lies within the sound discretion of the trial court, and that court's findings will not be reversed absent an abuse of discretion. Taylor v. Taylor , 369 Ark. 31, 250 S.W.3d 232 (2007). However, a trial court's conclusions of law are given no deference on appeal. Id.

Before addressing Mary's specific arguments as they relate to child support, we observe that the trial court decided this case under the "Income Shares Model" adopted by the supreme court in In re Implementation of Revised Administrative Order No. 10 , 2020 Ark. 131, 2020 WL 1643491, which became effective on June 30, 2020.² Administrative Order No. 10 takes into account the incomes of both parties instead of basing child support solely on the payor's income, as in the prior version of the...