Crow v. Crow, CA

• Decision Date: 09 November 1988
• Docket Number: No. CA,CA
• Citation: 26 Ark.App. 37,759 S.W.2d 570
• Parties: Jane E. CROW, Appellant, v. Dewey Wolfgang CROW, Appellee. 88-68.
• Court: Arkansas Court of Appeals

Page 570

759 S.W.2d 570

26 Ark.App. 37

Jane E. CROW, Appellant, v.Dewey Wolfgang CROW, Appellee.

No. CA 88-68.

Court of Appeals of Arkansas Division I.

Nov. 9, 1988.

Gary R. Gibbs, Hot Springs, for appellant.

John B. Thurman, North Little Rock, for appellee.

COOPER, Judge.

The appellant and the appellee were divorced on September 26, 1986.By agreement between the parties, the appellant had custody of the parties' three minor children and the appellee agreed to pay $1200.00 per month child support.In May 1987, the parties entered into a consent decree which changed custody of the two older children to the appellee.The appellee subsequently filed a petition requesting a reduction of the amount of child support he was required to pay to the appellant.The chancellor granted his petition and reduced the amount of child support to $400.00 per month.On appeal, the appellant argues that the chancellor erred in modifying the amount of child support because the amount was part of an executed independent property settlement agreement.We affirm.

The agreement, which was incorporated by reference into the divorce decree, provided that the appellant was to receive $1200.00 per month child support until the youngest child reached the age of eighteen.The agreement also provided that "neither party shall bring an action to increase or decrease the amount of child support during this period of time."The agreement further recited that it was the intent of the parties to finally settle the property issues and "determine future property rights, claims and demands in such a manner that any action with respect to the other be finally and conclusively settled by this Agreement."

It is the appellant's contention that the chancellor could not modify or alter the decree as to child support because all the provisions were based on an independent, integrated contract.We disagree.The court always retains jurisdiction over child support, as public policy.Regardless of the terms of an independent contract purporting to restrict a court's power to modify support payments, either party has a right to ask for a change in child support.Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671(1983).Although we are confident that this rule is correct, we recognize that there are cases which have left room for confusion.

In Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439(1950), the husband agreed to pay the wife $200.00 per month as alimony and support for their four children.The Arkansas Supreme Court reversed the chancellor's reduction of the monthly payments, stating

The parties to a divorce action may agree upon the alimony or maintenance to be paid.Although the court is not bound by the litigants' contract, nevertheless if the court approves the settlement and awards support money upon that basis there is then no power to modify the decree at a later date.McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938(1946).

We note that the quoted paragraph never specifically mentioned "child support," but uses terms such as "maintenance" and "support money".Further, we note that the only authority cited for the Court's ruling, McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938(1946) had nothing to do with child support since the only issues presented dealt with alimony.

In later decisions the Supreme Court held that the chancery court did have the power to modify agreements as to provisions for support of minor children on a showing of changed conditions necessitating such modification.SeeReiter v. Reiter, 225 Ark. 157, 278 S.W.2d 644(1955);Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409(1953).The court later explained this discrepancy in Collie v. Collie, 242 Ark. 297, 413 S.W.2d 42(1967).The Court stated:

Any apparent conflict in these cases is probably attributable to the fact that the alimony and child support were not provided for separately in the Bachus case, but child support was a separate item in the Lively case.SeeReiter v. Reiter, 225 Ark. 157, 278 S.W.2d 644.At any rate we think that the better rule is that a chancery court may withhold enforcement of the payment of child support payments that have become inequitable by change of circumstances and the court may either reduce or increase amounts of child support payments provided for by such agreements because of changed circumstances.The interests of minors have always been the subject of jealous and watchful care by courts of chancery.

242 Ark. at 301, 413 S.W.2d 42(citations omitted).

Any remaining area of confusion should have been eliminated in Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671(1983).In Noonerthe Supreme Court eliminated any distinction between combined and separate child support and alimony payments.In Noonerthe parties entered into an independent contract which provided for the husband to pay $100.00 per week as child support and alimony.The Court stated:

The Court always retains jurisdiction over child support, as public policy.No matter what an independent contract states, either party has a right to ask for a change in child support.In this case where alimony and child support were not separately stated, the appellant can ask the Chancery Court to make a determination as to how much of the $100 is child support and how much is alimony.

Thus we see that the Supreme Court clearly held that agreements for child support remain modifiable, even where alimony and child support are lumped together as one sum.We note that Nooner did not mention Bachus v. Bachus.Further, in Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239(1987)the Supreme Court said:

[S]uch separate agreements, even if incorporated into the decree, cannot diminish the power of the court to modify support upon a determination of a change of circumstances....

292 Ark. at 389, 730 S.W.2d 239.

The appellant cites McInturff v. McInturff, 7 Ark.App. 116, 644 S.W.2d 618(1983)andReves v. Reves, 21 Ark.App. 177, 730 S.W.2d 904(1987) in support of her argument that when an independent contract is so integrated that the various provisions constitute reciprocal considerations, the chancellor lacks the authority to modify the provisions pertaining to child support.We disagree.

In McInturff the wife had custody of the parties' three minor children pursuant to a property settlement agreement.The agreement also provided for the wife to receive, in lieu of child support,...