Townsend v. Townsend

2021 Ark. App. 87

KIMBERLY TOWNSEND APPELLANT v. JAMES TOWNSEND APPELLEE

No. CV-20-72

ARKANSAS COURT OF APPEALS DIVISION IV

February 24, 2021

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT

[NO. 43DR-18-46]

HONORABLE JASON ASHLEY PARKER, JUDGE

AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellant Kimberly Townsend ("Kim") appeals from the divorce decree entered by the Lonoke County Circuit Court. On appeal, Kim raises three challenges to the decree, assigning error to (1) the court's award of child support; (2) the court's unequal division of marital property; and (3) the court's refusal to award her alimony. Finding no error, we affirm.

I. Background

Kim and appellee James Townsend were married in 2003. During their fifteen-year marriage, they had two children, M.T. and J.T.; acquired property; and incurred a significant amount of debt. Throughout their marriage, James was the primary source of income while Kim was the stay-at-home care provider. In 2018, the parties separated. After the separation, James stayed in the marital home while Kim moved in with her sister.

James filed for divorce, and Kim answered and counterclaimed. During the litigation, the parties disagreed strongly on the issues of custody, visitation, child support, alimony, property allocation, and the payment of bills. Both parties presented extensive testimony about their respective financial situations, their debt, and their marital property. On October 24, 2019, the court entered a final divorce decree awarding James and Kim shared joint legal custody of the children with Kim having primary physical custody and setting forth a detailed visitation schedule for James.¹ The court ordered James to pay $175 biweekly in child support with that amount rising to $325 biweekly in March 2000. The court acknowledged in its decree that both amounts (i.e., $175 and $325) were a downward departure from the family-support chart. Regarding marital property and debt, the court implemented an unequal division of the property in order to address the couple's large outstanding debt. And finally, the court denied Kim's request for alimony. Kim filed a timely notice of appeal challenging the court's findings on child support, the division of marital property, and alimony.

II. Discussion

A. Child Support

In her first point on appeal, Kim attacks the court's rulings concerning 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 circuit court unless it is clearly erroneous. Hall v. Hall, 2013 Ark. 330, 429 S.W.3d 219. In reviewing a circuit 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 accorded to their testimony. Id. As a rule, when the amount of child support is at issue, we will not reverse the circuit court's order absent an abuse of discretion. Symanietz v. Symanietz, 2020 Ark. App. 394, 609 S.W.3d 643. However, a circuit court's conclusion of law is given no deference on appeal. Id.

Under Arkansas's child-support statutes, when a decree of divorce is entered, a circuit court shall make an order concerning the care of the children as is reasonable from the circumstances of the parties and the nature of the case. Ark. Code Ann. § 9-12-312(a)(1) (Supp. 2019). In determining a reasonable amount of child support, the court shall refer to the most recent revision of the family-support chart. Ark. Code Ann. § 9-12-312(a)(3)(A). That chart, in turn, is set forth in Arkansas Supreme Court Administrative Order No. 10 (2020).²

Pursuant to the chart, a court must determine in its order the payor's income, recite the amount of support required under the guidelines, and recite whether the court deviated from the family-support chart. See Deline v. Deline, 2019 Ark. App. 562, at 14, 591 S.W.3d 365, 374. There is a rebuttable presumption that the amount of child support calculatedpursuant to the most recent version of the chart is the amount of support to be awarded in a divorce proceeding.

Here, the court determined that James earned a net biweekly income of $2,777 and that the presumptive child support per the family-support chart is $588 biweekly. However, the court set the support at a rate lower than the presumptive chart amount. In order to rebut the presumption described above, the court must enter a written finding that the amount calculated pursuant to the chart is "unjust or inappropriate." See Ark. Sup. Ct. Admin. Order No. 10(I); see also Newton v. Newton, 2018 Ark. App. 525, at 8, 565 S.W.3d 493, 499. If the court order varies from the guidelines, it shall include a justification of why the order varies as may be permitted under section V of Administrative Order No. 10.

Section V of Administrative Order No. 10 sets forth the factors for determining when a deviation from the chart may be appropriate. They include (1) food, (2) shelter and utilities, (3) clothing, (4) medical expenses, (5) educational expenses, (6) dental expenses, (7) child care, (8) accustomed standard of living, (9) recreation, (10) insurance, (11) transportation expenses, and (12) other income or assets available to support the child from whatever source, including the income of the custodial parent. Ark. Sup. Ct. Admin. Order No. 10(V)(a). Additional factors may warrant adjustments to a child-support obligation; among others, the factors include extraordinary time spent with the noncustodial parent or shared or joint-custody arrangements. Ark. Sup. Ct. Admin. Order No. 10(V)(6).

Kim argues that the circuit court erred in its calculation of the amount of child support. Here, the circuit court's decree addressed the downward deviation of child support as follows:

[A] downward deviation from [the] presumptive obligation is appropriate based upon [Kim's] lack of normal living expenses, the amount of time [James] spends with the children, the amount of the marital debt [James] must pay each month pursuant to this decree, the parties' respective 2018 tax liabilities and refunds, [Kim']s failure to make the [car] payments during the pendency of this matter, and [Kim's] willful contempt. Accordingly, [James] shall continue to pay $175 bi-weekly in child support until his first pay period in March 2020, at which point he will begin paying $325 bi-weekly.

Kim argues that the circuit court's downward deviation from the family-support chart is not supported by the considerations enumerated in the decree. We disagree.

First, Kim challenges the court's consideration of her "lack of normal living expenses" in its deviation from the chart amount of child support. We begin by taking note that food, shelter, and utilities are relevant factors for consideration by the court pursuant to Administrative Order No. 10. Next, we turn to the evidence before the court regarding her "lack of normal living expenses."

Regarding her normal living expenses, Kim testified that she was living with her sister, who did not require her to pay rent. Despite her testimony that she was not required to pay rent, she reported over $350 in monthly utilities-based expenses in her affidavit of financial means (AFM). On further examination, she conceded that her sister did not require her to pay rent or expenses and that these claimed expenses were not necessarily set in stone each month. She explained, however, that she was paying those things "out of the goodness of herheart." Despite not being required to pay her sister for her living expenses, Kim testified that she did not feel her sister would kick her out if she didn't pay her. Kim's sister corroborated that Kim and her children lived with her in her five-bedroom house, and she agreed that Kim and the children could stay with her "as long as they need to."

Additionally, Kim contends that at the time of the separation, she was working only eight hours a week and making only $3000 a year. While this contention was true with respect to this snapshot of her employment history, the court heard other evidence to the contrary. At the time of the final hearing, Kim was working a full-time job. Kim testified that she was employed by Walgreen's and earning between $550 and $600 biweekly. In her own AFM, she indicated that her net pay was $561 biweekly, but paycheck stubs from her employer dated between January and February 2019 reflected biweekly take-home pay that ranged between $621.82 and $659.27. In fact, on cross-examination, Kim agreed that she and her employer had been talking about her taking a management position that would come with a two-dollar-an-hour raise. As noted above, in reviewing a circuit court's findings regarding child support, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Hardy v. Wilbourne, 370 Ark. 359, 259 S.W.3d 405 (2007); McGee v. McGee, 100 Ark. App. 1, 262 S.W.3d 622 (2007). We therefore conclude that the circuit court gave proper consideration to Kim's living expenses as those factors are outlined in the family-support chart.

Next, Kim argues that the court wrongly considered the amount of time James would spend with the children under their custody and visitation agreement. See Ark. Sup. Ct.Admin. Order No. 10(V)(b)(6). The parties hammered out a very detailed custody arrangement under which James had alternate weekend visitation from Thursday evening through Monday morning (as opposed to the "standard" weekend visitation of Friday evening through Sunday evening); additional school holidays that coincided with federal holidays that James had off; and alternating weekly visitation during summers. These additional days constituted a not insubstantial amount of time; therefore, we cannot say that the circuit court's consideration of the additional time James spent with the children was clearly erroneous or not in accordance with section (V)(b)(6).

Kim's third challenge is to ...