Lee v. Lee

Decision Date12 April 2006
Docket NumberNo. CA 05-1141.,CA 05-1141.
Citation233 S.W.3d 698
PartiesDavey LEE, Appellant, v. Patricia LEE and Office of Child Support Enforcement, Appellees.
CourtArkansas Court of Appeals

Wm. C. Plouffe, Jr., El Dorado, AR, for appellant/cross-appellee.

Joanie M. Ozment, El Dorado, AR, for appellees/cross-appellant.

SAM BIRD, Judge.

Appellant Davey Lee appeals from the judgment of the Union County Circuit Court holding him in contempt for nonpayment of child support, granting the Office of Child Support Enforcement (OCSE) judgment for $7,132 in unpaid child support, and setting his support obligation at $40 per week. The $40-per-week sum represented a downward deviation from the $72-per-week sum provided by application of the child-support chart. Appellant raises five points for reversal. OCSE cross-appeals from the trial court's decision to deviate downward from the child-support chart. We affirm on both direct appeal and cross-appeal.

Appellant and appellee Patricia Lee were divorced by decree of the Union County Chancery Court entered on July 25, 2000. The decree awarded Patricia custody of the parties' two minor children and ordered appellant to pay child support of $58 per week.

In October 2001, the Lees' minor children were injured in an explosion at Patricia's home. The Lees filed a suit seeking damages for the children in the Union County Circuit Court. The case was settled, and a special-needs trust was created for the children with Liberty Bank of Arkansas serving as trustee.

OCSE intervened in the divorce case and filed a motion seeking to modify appellant's support obligation and to hold appellant in contempt for nonpayment of support. Appellant denied the material allegation of the petition. Prior to trial, appellant issued a subpoena to the bank seeking "financial account and/or trust records for the last three years concerning Patricia A. Lee. . . ." The bank filed a motion to quash the subpoena, alleging that the records had been ordered sealed in the earlier tort case. Appellant asserted that the motion to quash should be denied because the order sealing the records did not extend to the records sought.

After a hearing, the trial court granted the motion to quash by order entered on February 9, 2005. The trial court found that the purpose of the subpoena was to determine the assets and income available to the minor children and whether the bank had provided appellant with a complete list of all income or payments received by Patricia or the minor children. The court concluded that appellant had received all information necessary for the court to make a determination as to whether there should be a deviation from the child-support chart.

Appellant filed a "Motion for Reconsideration/New Trial and Motion for Findings of Fact and Conclusions of Law" on February 22, 2005. The motion sought findings of fact and conclusions of law regarding the following: the reasons that the records were sealed; whether the sealing of the records applied to records subsequently created by the bank for purposes of administering the special-needs trust; why the release of subsequently created documents would violate the order sealing the records; how the bank met its burden of showing good cause to quash the subpoena; how the records were not relevant to a requested deviation from the child-support chart; and how the release of the records would harm the special-needs trust. On March 16, 2005, the trial court denied the motion as being without merit and as untimely filed under Ark. R. Civ. P. 59(b).

At trial, appellant admitted that he had an arrearage of $12,132 but stated that he and Patricia had an agreement whereby he would not have to pay child support. He said that she told him that he "would not have to worry about child support anymore." He identified a document, signed by Patricia, requesting that the child-support case with OCSE be closed. Appellant stated that he was working, earning $7 per hour for a forty-hour week. He stated that he had a wife and two children, ages two and four, living at home with him. He also admitted receiving $250,000 as his share of the settlement from the accident involving his older children but stated that he did not put that money in the bank. He added that $150,000 in cash from that settlement, a vehicle, and a motorcycle were stolen from his home.

According to appellant, he paid $5,000 for food and clothing for the children. He asserted that the children were removed from Patricia's custody in 2002 due to her inability to care for them after the explosion. Appellant also claimed that he should not have to pay support for the period the children were not in Patricia's custody. He said that, in addition to the $5,000 previously mentioned, he paid more than $2,000 during the fifteen-month period the children were in foster care. However, he did not have receipts for these payments. He said that the children received $1,500 per month in disability from social security and $6,000 per month from the special-needs trust. According to appellant, the trust was worth approximately $1 million and paid for all of the household expenses. He added that the children's total estate was valued between $15 to $17 million. He stated that he did not think it was fair for him and his new family to suffer by his paying child support when the children's needs were met by the trust.

After the hearing, the trial court announced its findings from the bench and found that appellant was previously ordered to pay child support of $58 per week and that appellant admitted an arrearage of $12,132. The court gave appellant credit for $5,000 in previous payments. This resulted in a net judgment of $7,132. The trial court found that appellant was not entitled to credit for payments from the special-needs trust because it was not created with funds provided by appellant. The trial court found, based on the child-support chart, that appellant should pay $72 per week in current support. Because the children were receiving $1,500 per month from social security and $6,000 per month from the special-needs trust, the court concluded that a deviation from the child support was warranted and that such a deviation would not adversely affect the children. In deciding to deviate from the chart, the court also noted that appellant had two other biological children residing with him. The court then set child support at $40 per week, plus $8 per week on the arrearage. An order based on the trial court's oral findings was entered on July 1, 2005. Appellant filed a timely notice of appeal, and OCSE filed a timely notice of cross-appeal.

Appellant raises five points on appeal: (1) that the trial court erred when it held that the income from the special-needs trust would not be credited against appellant's support obligation; (2) that the trial court erred in not considering Patricia Lee's request to close her child-support case and that she did not have custody of the minor children for an extended period of time, and that appellant detrimentally relied on Patricia Lee's request in stopping child support; (3) that the trial court erred in setting appellant's support obligation at $40 per week; (4) that the trial court erred in quashing a subpoena for the records of the trust from the bank; and (5) that the trial court erred when it denied as untimely appellant's motion seeking findings of fact as to the trial court's decision to grant the bank's motion to quash. On cross-appeal, OCSE argues that the trial court erred in deviating downward from the child-support chart.

Child-support cases are reviewed de novo on the record. Paschal v. Paschal, 82 Ark.App. 455, 117 S.W.3d 650 (2003). It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Cole v. Cole, 82 Ark.App. 47, 110 S.W.3d 310 (2003). This income may differ from income for tax purposes. See Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002). As a rule, when the amount of child support is at issue, the appellate court will not reverse the trial judge absent an abuse of discretion. McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Paschal, supra.

In setting the amount of child support that a noncustodial parent must pay, reference to the most recent child-support chart is mandatory. Thompson v. Thompson, 63 Ark.App. 89, 974 S.W.2d 494 (1998). The family-support chart is more accurately identified as Section VII of Supreme Court Administrative Order 10, In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. 1064 (2002). Administrative Order Number 10 sets out the definition of income for child-support purposes and the manner of calculation of support. It also lists factors that the court should consider when determining support at variance to the chart. Although the court must consider the chart, it does not have to use the chart amount if the circumstances of the parties indicate that another amount would be more appropriate. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992); see also Ark.Code Ann. § 9-14-106 (2002).

Appellant first argues that the trial court erred in not crediting the amount that the children receive from the special-needs trust against his support obligation. In Hinton v. Hinton, 211 Ark. 159, 199 S.W.2d 591 (1947), the supreme court held that military allotments assigned to a child could be credited toward the father's child-support obligation. In Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962), the court held that a father was entitled to credit social security retirement benefits received by the child against the father's child-support payments. In so holding, the court observed that such benefits were not gratuitous but earned, and the court was persuaded that the equities tipped in favor of allowing credit to the father under the circumstances of the case.1 However, in Thompson v....

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