Brown v. Brown

• Decision Date: 27 February 2002
• Docket Number: No. CA 01-953.,CA 01-953.
• Citation: 76 Ark. App. 494,68 S.W.3d 316
• Parties: David L. BROWN v. Janet P. BROWN.
• Court: Arkansas Court of Appeals

68 S.W.3d 316

76 Ark. App. 494

David L. BROWN v. Janet P. BROWN.

No. CA 01-953.

Court of Appeals of Arkansas, Division I.

February 27, 2002.

Mark S. Carter, P.A., by: Mark S. Carter, Little Rock, for appellant.

Hurley & Whitwell, by: Stephen E. Whitwell, North Little Rock, for appellee.

ANDREE LAYTON ROAF, Judge.

Appellant, David Brown, and appellee, Janet Brown, were divorced in 1993. In 2001, Janet filed a motion for contempt and for an increase in child support. The trial court granted an increase in child support and found David in contempt for failing to provide Janet his income tax returns as required in their divorce decree. On appeal, David argues that the trial court erred in 1) failing to consider certain evidence with regard to the practice of the parties for the payment of their child's medical expenses; 2) finding him in contempt for failing to provide Janet with his 2000 tax return; 3) disallowing certain deductions from his tax return when determining his income for purposes of calculating child support; 4) retroactively increasing child support to a date prior to the filing of Janet's petition; 5) failing to consider certain evidence in determining that amounts paid by him in excess of his child-support obligation were gifts; 6) determining that corporal punishment is per se child abuse under Arkansas law; and 7) increasing his child support when Janet failed to show a change of circumstances by not introducing evidence of his income at the time of the earlier decree setting child support. We agree that the trial court erred with respect to the retroactive increase of support and in determining that corporal punishment is per se child abuse in Arkansas and reverse and remand on those points. We affirm the trial court on all remaining points.

Pursuant to the property settlement agreement in the parties' 1993 divorce decree, David was ordered to pay $266 a month in child support. The decree stated that David was to provide Janet with copies of his W-2s, or his tax return if he became self-employed, within thirty days of filing the return. David also agreed to pay one-half of their minor child's medical expenses not covered by insurance and to be responsible for one-half of the insurance premium for the child.

In March 1994, Janet filed a motion for contempt and for an increase in child support. After David did not appear at the hearing, Janet submitted an order to the court that found David in contempt and increased the child support to $307 per month. This order was never signed by the chancery court. Although the child support was not officially increased, the testimony of the parties in this case indicates that David assumed that the child support was raised to $307.

On February 13, 2001, Janet filed another motion for contempt and to increase child support. In her motion, Janet stated that David owed $2,400 in medical expenses for their child and that he had not provided her with copies of his recent tax returns as required by the divorce decree. After a hearing, the trial court found David in contempt for failing to provide Janet with his tax returns until a few days before the hearing. The trial court granted Janet's motion to increase child support and set the child support at $496 per month. The court retroactively increased the child support to January 1, 2001, although the motion for increase was not filed until February 13, 2001. David was given until June 1, 2001, to pay the medical expenses owed to Janet. The court also stated that corporal punishment by a parent is abuse, per se, in Arkansas and that David's visitation would cease immediately if the court found out that he had spanked or hit his child. David appeals from this order.

In reviewing chancery cases, this court considers the evidence de novo, but will not reverse a chancellor's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Tucker v. Tucker, 74 Ark.App. 316, 49 S.W.3d 145 (2001). Where the decision turns on the credibility of interested witnesses, we defer to the superior position of the trial court to judge that credibility. Norman v. Norman, 268 Ark. 842, 596 S.W.2d 361 (App.1980).

David's first and fifth arguments are essentially the same; that the trial court erred in not considering his Exhibit 1 in finding that the amounts paid by him over the child-support amount were gifts and not agreed-upon payments for his child's medical expenses. Exhibit 1 is a medical bill for the Browns' child from 1993 that was mailed to David from Janet. Attached to the bill was a note from Janet stating, "Please send $45.13 with next child-support payment. Don't forget you are to pay me $30.00 per month for Alex's insurance. This can be added to child-support payment, too." David testified that, based on the note, he had been overpaying child support to compensate for medical expenses. Because the chancery court's order listed certain exhibits that the court relied on in making its decision and this exhibit was not listed, David contends that the court did not consider this evidence. This argument is without merit.

The trial court's order did list certain evidence that it relied on, but it also stated that the decision was based on "other matters before the court." Although David argues that Exhibit 1 establishes an agreement between the parties as to the payment of medical expenses, there was other evidence introduced that does not support this claim. David established the amounts that he had overpaid by introducing canceled checks, showing that the amount he had paid for child support from 1996 until 2000 was more than the $307 per month that he had been paying from 1994 until 1996. The amounts of these checks ranged from $350 to $550. Although David claims that this "agreement" as to the medical bills started with the bill in 1994, the canceled checks indicate that David did not make any extra payments until 1996 and 1997. Janet testified that David agreed to make extra payments for their child's extracurricular activities in 1997, and the timing of the extra payments supports her testimony.

Also, David testified that the only other medical bill sent to him by Janet besides the one in 1994 was in January 2000. David's record of his child-support payments, which was introduced at the hearing, indicates that in addition to a $500 child-support check written in January 2000, he also paid an additional $92.84. David testified that this additional amount was for the medical bill that Janet had sent him. In light of the conflicting evidence, we cannot say that the chancellor's decision in regard to the medical expenses is clearly erroneous.

Moreover, it was proper for the court to find that these overpayments were gifts to Janet. As conceded by David, it is well settled that the chancery court is not required to give credit for voluntary expenditures by a parent that are above the child-support amount. Glover v. Glover, 268 Ark. 506, 598 S.W.2d 736 (1980); Stuart v. Stuart, 46 Ark.App. 259, 878 S.W.2d 785 (1994); Buckner v. Buckner, 15 Ark.App. 88, 689 S.W.2d 584 (1985). This is the case because the custodial parent relies on proper compliance with the decree in making arrangements for the child's care. Glover, supra. Thus, it was not error for the trial court to refuse to apply these overpayments towards David's medical expense arrearages.

For his second point, David argues that the trial court erred in holding that he was in contempt for failing to provide Janet with his 2000 federal tax return when the contempt hearing was held three days prior to the filing deadline for 2000 taxes. David cites Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995), for the proposition that a person cannot be held in contempt for failing to do something that the court did not order. The divorce decree stated that David was to provide each year's tax return within thirty days of the filing deadline. The hearing in this case was held on April 12, 2001, which was before the April 15 filing deadline in 2001. David is correct in his contention that he cannot be held in contempt for failing to provide his 2000 tax return, and Janet concedes this point. However, the chancery court's contempt order was not based solely on the 2000 tax return. The court found that David had also not provided his 1998 and 1999 tax returns until after Janet filed her motion on February 13, 2001. Thus, it was not error for the court to hold David in contempt for failing to timely provide his 1998 and 1999 tax returns.

David next argues that the trial court erred in disallowing "Schedule C" deductions from his 2000 tax return when determining the amount of future child support. As the chancery court's decision indicates, David was unable to adequately explain many of the deductions contained on his 1998, 1999, and 2000 tax returns. David argues that it was error for the court to impose on him a duty to know what his legitimate business expenses were and to know what was contained on his tax returns. His argument is without merit.

It is the ultimate task of the chancellor to determine the expendable income of a child-support payor. Stepp v. Gray, 58 Ark.App. 229, 947 S.W.2d 798 (1997). This court has stated that the chancellor "may not simply utilize one of the definitions of income found in the tax code, particularly in the case of self-employed persons, to arrive at the true disposable income of the support obligor." Id. at 235, 947 S.W.2d at 801. It is proper for the chancellor to consider whether a depreciation deduction should be allowed in calculating expendable income. See id. at 236, 947 S.W.2d at 801 (discussing appellate cases where a depreciation deduction was properly added back in to the support payor's income in arriving at an accurate indicator of expendable income). The version of the child-support chart applicable when this case was tried is found at In Re: Administrative Order No. 10: Arkansas...