Norman v. Alexander, CA 10-914
| Decision Date | 04 May 2011 |
| Docket Number | No. CA 10-914,CA 10-914 |
| Parties | ANDREA SHA NORMAN APPELLANT v. JOHN ERIC ALEXANDER APPELLEE |
| Court | Arkansas Court of Appeals |
JUDGE
AFFIRMED IN PART;
REVERSED IN PART
This appeal challenges portions of the May 24, 2010 order entered by the Pulaski County Circuit Court that denied appellant Andrea Sha Norman the following: (1) an increase in child support based upon appellee John Eric Alexander's monthly gift income, and (2) reimbursement for health-insurance premiums for coverage during the period when appellee failed to provide the coverage required by their property settlement agreement. We affirm as to the child support but reverse as to the health-insurance premiums.
We review domestic-relations proceedings de novo but do not reverse unless the trial court's findings are clearly erroneous. Hass v. Hass, 80 Ark. App. 408, 97 S.W.3d 424 (2003). This standard of review applies to child-support awards. Davie v. Office of Child Support Enforcement, 349 Ark. 187, 76 S.W.3d 873 (2002). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002). The amount of child support lies within the sound discretion of the trial judge, and that finding will not be reversed in the absence of an abuse of discretion. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). The trial court must determine the payor's income, which is intentionally defined broadly for the benefit of the child. Paschal v. Paschal, 82 Ark. App. 455, 117 S.W.3d 650 (2003). Gifts can properly be considered income for child-support purposes. Ford, supra.
Here, the parties had been divorced since 2002. Appellee was ordered to pay $1200 per month in child support for their three children. Child support was raised over the years, but appellee became unemployed in 2007, and his child support was lowered to $1500. Appellee, who holds a degree from Hendrix and an MBA, was laid off from his job at Acxiom. In August 2009, appellant filed a motion for an increase in child support alleging a material change in appellee's income.
Appellant reviewed appellee's bank statements; appellee provided no tax returns. In reviewing appellee's 2009 gross deposits, appellant believed appellee to have $15,282 in average monthly income. Appellee testified that he and his wife live in a gated community in West Little Rock in a 4380-square-foot house, eat out, buy groceries at high-end markets, and his wife goes to the spa and tanning salon. His stepdaughter and his former father-in-law (appellant's father) live with him. Appellee listed monthly expenses of $9000. His bankingstatements showed more than $12,000 per month going out of their account. Appellee testified that his parents give him $8500 to $11,000 per month, although it had dropped in the four months just prior to the hearing to about $7500 a month. Appellee admitted that he does not work and had not been offered a job since being laid off in 2007. Appellee's parents had for years paid for the children's private-school education.
Appellee's father testified that appellee was his only son, that he had helped him over the years, and that he had been supporting him. He testified that he did not know how long he could continue paying appellee's expenses because his savings and dividends were running out. He did not want to sell his stocks because he wanted to be able to leave his grandchildren something. But, he intended to "try to take care of my son until I go broke."
The amount of child support is within a trial court's discretion, which will not be overturned absent an abuse of that discretion. Ford, supra. Administrative Order No. 10 II defines income to include any form of payment, periodic or otherwise, due to an individual, regardless of the source. "Relevant factors to be considered by the court in determining appropriate amounts of child support shall include... other income or assets available to support the child from whatever source[.]" Ark. Sup. Ct. Admin. Order No. 10 (v)(12).
The trial judge stated from the bench that she needed to look at the monthly gift income, but she did not know how long those gifts would continue. She said that if she believed his parents would The trial court entered an order finding that appellee "is well-educated and intelligent, but he has not made a strong effort to find a job." The order recited that appellee would be imputed $8000 monthly income. The trial court has discretion to determine the actual disposable income of the payor. We cannot say on de novo review that the trial court clearly erred or abused its discretion in failing to set child support on the precarious and indefinite additional future gifts by appellee's father.
We next consider appellant's argument that the trial court erred by not ordering appellee to reimburse her for three years of premiums for health-insurance coverage for the children. The settlement agreement approved by the trial court in their divorce decree required appellee to provide health-insurance coverage "equal to the coverage now in effect," which was a low-deductible United Healthcare policy. His employer changed the health insurance that it provided to its employees in January 2005. Appellant made her objection known to appellee but he did not comply with their agreement. Appellant acquired coverage equal to the original policy for the children beginning in 2005. Appellee provided no health-insurance coverage at all for the children after December 2007.
The trial judge ordered appellant to be reimbursed for the premiums when insurance was totally lacking, beginning January 2008 forward. The trial court found that for the period between January 2005 and December 2007, appellee had provided coverage "although not comparable to the coverage in effect at the time of the divorce." The trial court added that"if [appellee] had petitioned the Court for relief from the decree [during the lesser-coverage period], the Court would have granted it." It is this period that is at issue. We hold that the trial court clearly erred.
The parties' agreement was incorporated, but does not purport to have merged, into the decree. See Meadors v. Meadors, 58 Ark. App. 96, 946 S.W.2d 724 (1997). It was an independent, binding contract. Wall v. Wall, 2011 Ark. App. 143. Questions relating to the construction, operation, and...
To continue reading
Request your trial