Fonken v. Fonken, 97-1568

• Citation: 976 S.W.2d 952,334 Ark. 637
• Decision Date: 29 October 1998
• Docket Number: No. 97-1568,97-1568
• Parties: Lowell D. FONKEN, Appellant, v. Yedidiyah D. FONKEN, Appellee.
• Court: Supreme Court of Arkansas

Page 952

976 S.W.2d 952

334 Ark. 637

Lowell D. FONKEN, Appellant, v. Yedidiyah D. FONKEN, Appellee.

No. 97-1568.

Supreme Court of Arkansas.

Oct. 29, 1998.

Teresa L. Hughes, Searcy, for Appellant.

Daisy Olson, Jacksonville, for Appellee.

THORNTON, Justice.

Appellant Lowell Fonken is the father of Yedidiyah "Jake" Fonken, appellee, who, upon reaching his majority, filed suit in White County Chancery Court seeking back child support. The chancery court found that, pursuant to Ark.Code Ann. § 9-14-105(c)(Repl.1998), Mr. Fonken was obligated to pay his son back child support in excess of $19,000.00. From the decision of the trial court, Mr. Fonken brings this appeal. We affirm.

Jake's parents were divorced on November 3, 1982, by order of the Pulaski County Chancery Court. Custody was awarded to the mother, and Mr. Fonken was ordered to pay child support in the amount of $135.00 per month. In May, 1988, Mr. and Mrs. Fonken jointly petitioned the Pulaski County Chancery Court for a change of custody, and requested that Mr. Fonken's child-support obligation be abated. This petition was granted. Custody of Jake was later returned to his mother by a consent order dated February 2, 1989, but there was no mention of child support in the order. Later in 1989, when he was eleven, Jake went to visit his maternal grandparents for the summer. At this time, his mother was receiving voluntary child-support payments from Mr. Fonken. Alleging abuse while in his mother's custody, Jake and his grandparents notified his mother that he would not be returning to her home. Once his mother realized that Jake would not be returning, around October, 1989, she told Mr. Fonken to stop sending her child-support payments.

At trial of this matter, Jake testified that he visited with his father when he and his grandparents would visit the state, and that they spoke on the phone numerous times when Jake would call Mr. Fonken collect. According to Jake, his father had given him $155.00 in birthday gifts over the years, but that was the extent of the support paid since Jake went to live with his grandparents.

Jake turned eighteen on December 20, 1995; shortly thereafter, he filed suit in White County Chancery Court seeking retroactive child support from February 2, 1989, until December 20, 1995 from his father alone, pursuant to Ark.Code Ann. § 9-14-105(c). The trial court found that Mr. Fonken had a legal obligation to furnish support for his son from the time Jake lived with his grandparents, beginning in October, 1989, through the reminder of his minority. Using the child-support chart as well as Mr. Fonken's income from the years in question, the trial court awarded support to Jake in the amount of $19,690.63, with interest.

Mr. Fonken's first point on appeal is that the trial court erred in retroactively modifying the May 12, 1988, order of the Pulaski County Chancery Court, which changed custody and abated his obligation for child support. As a general rule, custody and support of children, during and after a suit for divorce between the parties, belongs appropriately to the court hearing the divorce case. McCormac v. McCormac, 304 Ark. 89, 91, 799 S.W.2d 806, 807 (1990); Holt v. Holt, 42 Ark. 495, 498 (1883). Here, the Pulaski County Chancery Court abated its previous order for child support in 1988, and it did not order child support reinstated when it returned custody to the mother in February, 1989. Although the Pulaski County Chancery Court continued to have jurisdiction of support matters arising out of the divorce action between Mr. and Mrs. Fonken, it did not exercise that jurisdiction to establish child-support obligations following its abatement of such obligations. While Mr. Fonken objected to the exercise of jurisdiction by the White County Chancery Court, he did not obtain or insist upon a ruling on this issue. The issue of appropriate venue in this action was waived by Mr. Fonken, through his appearance and acceptance of the White County Chancery Court's authority. Tortorich v. Tortorich, 333 Ark. 15, 21, 968 S.W.2d 53, 55 (1998); Hargis v. Hargis, 292 Ark. 487, 490, 731 S.W.2d 198, 200 (1987).

Although chancery cases are reviewed de novo on appeal, we will not disturb a chancery court's findings of fact unless they are clearly erroneous or clearly against the preponderance of the evidence. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Nichols v. Wray, 325 Ark. 326, 333, 925 S.W.2d 785, 789 (1996).

Ark.Code Ann. § 9-14-105(c)(Repl.1998) provides that:

(a) The chancery courts in the several counties in this state shall have exclusive jurisdiction in all civil cases and matters relating to the support of a minor child or support owed to a person eighteen (18) or older which accrued during that person's minority.

(b) The following may file a petition to require the noncustodial parent or parents of a minor child to provide support for the minor child:

(1) Any parent having physical custody of a minor child;

(2) Any other person or agency to whom physical custody of a minor child has been given or relinquished;

(3) A minor child by and through his guardian or next friend; or

(4) The Office of Child Support Enforcement when the parent or person to whom physical custody has been relinquished or awarded is receiving assistance in the form of Aid to Families with Dependent Children, Medicaid, Title IV-E of the Social Security Act--Foster Care, or has contracted with the department for the collection of support.

(c) Any person age eighteen (18) or above to whom support was owed during his minority may file a petition for a judgment against the nonsupporting parent or parents. Upon hearing, a judgment may be...