Browning v. Browning
2015 Ark. App. 104
| Ark. Ct. App. | 2015Background
- Arkansas Court of Appeals, Division III, No. CV-14-167, delivered Feb. 18, 2015.
- Brenda Browning appeals a trial court order that reduced David Browning’s child support and applied the change retroactively.
- David filed a 2009 petition seeking a reduction from the prior $250/week for two children.
- The 2010 trial court order reduced support to $139/week retroactive to April 2009; a 2010–2011 appeal led to voiding that order for lack of proper modification timing.
- In 2013, after a new motion, the court set support at $150/week based on income, with a retroactive date challenged by Brenda.
- The court also granted David a credit for overpayment; Brenda appeals on authority to modify and calculation of retroactive effect and credit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had authority to modify under the 2009 petition | Browning - authority existed to modify upon new motion on remand | Browning - modification based on April 2009 petition invalid; law-of-the-case barred | Partially yes; modification authority limited to May 2, 2013 motion; not April 2009 petition |
| Whether law-of-the-case barred reviewing the 2009 petition | Brenda - April 2009 petition status resolved in first appeal | David - law-of-the-case applies to limit issues previously decided | Yes; status resolved; trial court lacked authority to rule on April 2009 petition on remand |
| Whether $150/week reflects a proper modification based on income | Brenda - 2012 tax return unreliable; alternative income method needed | David - credibility and tax return supported income; tax-based finding proper | Affirmed; court relied on unrebutted testimony and tax return; affirm modification at $150/week |
| Whether retroactivity should be to May 2, 2013 (motion) instead of April 16, 2009 | Brenda - retroactivity improper; earlier petition governs | David - May 2, 2013 motion valid basis for retroactivity | Retroactivity limited to May 2, 2013; not April 2009; remand for arrearage calculation |
| Whether the credit for overpayment was properly calculated | Brenda - credit calculation flawed | David - calculation based on modified obligation | Reversed; remand to apply modification only from May 2, 2013 and recompute arrearage |
Key Cases Cited
- Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999) (1999) (law-of-the-case concept in modification decisions; defines finality of orders and law-of-the-case)
- Martin v. Martin, 87 S.W.3d 817 (2002) (2002) (modification timing and finality under §9-14-234( c))
- Shipp v. Shipp, 230 S.W.3d 305 (2006) (2006) (sufficient motion under §9-14-234 for reconsidering child support)
- Tucker v. Office of Child Support Enforcement, 247 S.W.3d 485 (2007) (2007) (treatment of tax returns for self-employed payors under AO No. 10)
- Cowell v. Long, 2013 Ark. App. 311 (2013) (use of tax records vs. net-worth method; reliance on tax returns when reliable)
- Hall v. Hall, 429 S.W.3d 219 (2013) (2013) (de novo standard of review for child-support findings; defer to trial court on credibility)