522 S.W.3d 146
Ark. Ct. App.2017Background
- Parents (Dare and Frost) never married; Virginia order gave Dare primary physical custody, Frost liberal visitation (including two summer weeks) and $400/month child support; Frost often received 3–4 weeks in summer by agreement.
- Dare moved to Arkansas; Frost registered the Virginia order in Saline County and sought modification of visitation alleging a material change; Dare counterclaimed for increased child support.
- Around early 2015 Dare began demanding more support and stopped allowing extra visitation beyond the written schedule; Frost continued to seek expanded visitation to reflect prior practice.
- Circuit court found a material change warranting modification of visitation, and separately held a hearing on child support focusing on whether Frost’s investment-account growth should be included in income.
- Trial court treated realized distributions as includable in income but declined to treat unrealized investment growth like income; it found Frost’s average net biweekly income was $1,174 and did not impute additional income based on lifestyle.
- On appeal, Dare challenged (1) the visitation modification (no material change) and (2) the refusal to include Frost’s investment-account growth (and to impute income) in child-support calculations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a material change of circumstances justified modifying visitation | Dare: No material change; prior agreement governed visitation | Frost: Elevated discord and Dare’s conduct (restricting extra visitation, exposing child to pleadings, "gamesmanship") warranted change | Court affirmed: hostility and actions constituted material change; visitation modified to reflect prior practice |
| Whether realized or unrealized gains from Frost’s stock portfolio (and lifestyle) should be included or imputed as income for child support | Dare: Court should include growth/realized gains and consider imputing income based on lifestyle | Frost: Investment growth is akin to retirement/real property—only includable when disbursed; not working below capacity so no imputation | Court reversed in part: remanded to include realized gains as income (leave method to trial court); affirmed no imputation absent evidence of underemployment |
Key Cases Cited
- Meins v. Meins, 93 Ark. App. 292, 218 S.W.3d 366 (Ark. Ct. App.) (party seeking visitation change must show material change; best interest is main consideration)
- Hass v. Hass, 80 Ark. App. 408, 97 S.W.3d 424 (Ark. Ct. App.) (courts apply stricter standards to custody/visitation modifications to promote stability)
- White v. White, 95 Ark. App. 274, 236 S.W.3d 540 (Ark. Ct. App.) (realized gain on sale/disposition of property constitutes taxable income when realized)
- Davis v. Bland, 367 Ark. 210, 238 S.W.3d 924 (Ark. 2006) (child-support amounts are determined by reference to Administrative Order No. 10)
- Hall v. Hall, 429 S.W.3d 219 (Ark.) (appellate review of child-support amount is for abuse of discretion)