Mixon v. Mixon, CA
| Decision Date | 03 March 1999 |
| Docket Number | No. CA,CA |
| Citation | 987 S.W.2d 284,65 Ark.App. 240 |
| Parties | Kathleen M. MIXON, Appellant, v. Robert P. MIXON, Appellee. 98-867. |
| Court | Arkansas Court of Appeals |
Ann R. Dodson, Little Rock, for Appellant.
Donald K. Campbell, III, Little Rock, for Appellee.
Kathleen Mixon appeals from a decision in Pulaski County Chancery Court on April 29, 1998, that modified Robert Mixon's child-support obligations. Appellant contends that the chancellor erred when he calculated the child-support arrearage owed by appellee based on the reduced value set forth in the family-support guidelines for one child after an older child turned eighteen. We disagree and affirm.
The appellant and appellee were divorced on September 21, 1995. Appellee was ordered to pay $485.00 per month ($242.50 biweekly) in child support for the two minor children. The oldest child, Jonathan, graduated from high school in January 1997, and turned eighteen years old on August 26, 1997.
On March 26, 1998, appellee filed a motion to modify child support and a motion to quash the wage assignment order, arguing that he was entitled to a reduction in child support based on his income to $96.00 per week since May 1997. Appellee also argued that his child-support obligation should have been reduced to $68.00 per week after August 26, 1997. Appellee argued that he owed the difference of what he actually paid in September and October 1997 and what he was obligated to pay; appellee admitted to owing some support from November 1997 to March 1998. Furthermore, in his motion to quash the wage assignment, appellee argued that the court should stay the enforcement of the wage assignment until the determination of appellee's true support obligation.
In a decision filed May 19, 1998, the chancellor found that the appellee's obligation to pay child support for Jonathan terminated as a matter of law on August 26, 1997, pursuant to Arkansas Code Annotated section 9-14-237 (Repl.1993). The chancellor further found that the appellee remained obligated to pay child support for the remaining minor child at the reduced rate of $330.00 per month from August 26, 1997, until he filed the motion to reduce his obligation. The chancellor found that a change of circumstances occurred on September 25, 1995, when appellee suffered an involuntary reduction in net take-home pay to $381.79 per week that had not changed at the time of his petition to modify. Furthermore, the chancellor determined that appellee owed $2552.50 in child support from August 15, 1997 to March 26, 1998. After deducting two payments of $276.00 (total of $552.00) made after August 26, 1997, and $1,143.95 in the form of wage garnishments, the chancellor ordered that appellee's employer should deduct an additional $228.79, and ordered that appellee pay the remaining sum of $628.00 within sixty days. The wage assignment was quashed after the last deduction of $228.79 was to be made. The new amount of child support owed, beginning March 26, 1998, was $74.00 per week. The employer was ordered to withhold this amount from appellee's paycheck.
Appellant argues that the chancellor erred by retroactively modifying the appellee's child support prior to the date he filed a motion to modify, and she cites two cases from this court that she alleges are in direct conflict: Laroe v. Laroe, 48 Ark.App. 192, 893 S.W.2d 344 (1995), and James v. James, 52 Ark.App. 29, 914 S.W.2d 773 (1996). She argues that the chancellor could not modify the support obligations retroactively, before the date the petition for modification was filed, so that the obligation for support did not change on August 26, 1997. She maintains this position, despite the language of Ark.Code Ann. § 9-14-237 and our holding in James v. James, because a child-support obligation may not be modified without filing a petition for modification.
The appellee argues that the chancery court did not retroactively modify child support prior to the date he filed the motion to modify. Rather, appellee contends that the chancellor ruled that his arrearage was incorrectly calculated, and that the State attempted to collect more money than was actually owed. Furthermore, the appellee argues that he did not modify the child support on his own; rather, as a matter of law, part of his support obligation was terminated prior to his petition for modification. Lastly, the appellee contends that Laroe does not apply to this case, because Ark.Code Ann. § 9-14-237 (which applies here) was not in effect when Laroe was decided.
Although chancery cases are reviewed de novo on the record, the appellate court will not reverse unless the chancellor's findings are clearly against the preponderance of the evidence or are clearly erroneous. Heflin v. Bell, 52 Ark. App. 201, 916 S.W.2d 769 (1996). This standard of review applies to the chancellor's decision regarding whether there are sufficient changed circumstances to warrant a modification in child support. Woodson v. Johnson, 63 Ark. App. 192, 975 S.W.2d 880 (1998). The amount of child support to be paid lies within the discretion of the chancellor. Id.
The provisions of two statutes are called into question. Arkansas Code Annotated § 9-14-234 (Repl.1998), provides that:
(b) Any decree, judgment, or order which contains a provision for the payment of money for the support and care of any child or children through the registry of the court or the Arkansas child support clearinghouse shall be final judgment subject to writ of garnishment or execution as to any installment or payment of money which has accrued until the time either party moves through proper motion filed with the court and served on the other party to set aside, alter, or modify the decree, judgment, or order.
(c) The court may not set aside, alter, or modify any decree, judgment, or order which has accrued unpaid support prior to the filing of the motion.
Arkansas Code Annotated § 9-14-237 (Repl.1998), provides that:
(a)(1) An obligor's duty to pay child support for a child shall automatically terminate by operation of law when the child reaches eighteen (18) years of age or should have graduated from high school, whichever is later ... unless ...
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