563 S.W.3d 601
Ark. Ct. App.2018Background
- Melanie Fischer (Jaskiewicz) obtained primary custody after 2011 divorce; Michael Fischer was ordered to pay biweekly child support and Melanie sought modification in Nov. 2016 alleging increased income.
- Michael, a hospitalist, earns W-2 wages from Practice Plus/Baptist Hospital and intermittent 1099 income from other hospitals; his income fluctuated across 2014–2016 tax years.
- Michael submitted AFM showing net biweekly income of $6,287.72 and attached recent paystubs; he testified his 1099 work declined due to fewer available shifts and reduced reimbursements.
- Trial court found a material change in income, set modified biweekly support using the AFM figure and Administrative Order No. 10 family-support chart, and ordered 21% of future bonuses/1099 income be paid as additional support.
- Melanie argued the court should have averaged Michael’s income over three–four years (or otherwise averaged fluctuating income) instead of relying on the AFM; the court rejected that and denied reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by relying on Michael’s AFM rather than averaging income over multiple years | Use a 3–4 year (or multi-year) average because income fluctuates (Taylor/Delacey support) | AFM and recent paystubs reflect current expendable income; no AO10 requirement to average | Court upheld use of AFM/recent evidence; no legal error in not averaging income |
| Whether AFM was an incorrect basis for support calculation | AFM not representative because it is not an average of variable income | AFM is current financial statement; trial court may assess credibility and other evidence | Court declined to address unsupported assertion; AFM accepted with testimonial context |
| Whether trial court abused discretion in computing new support amount under Admin. Order No. 10 | Averaging would produce more accurate/supportable figure | AO10 provides presumptive chart amounts; court followed AO10 and considered bonuses/1099 separately | No abuse of discretion; award presumed reasonable under AO10 |
| Whether court should have used tax returns for averaging because of fluctuating income | Tax returns over multiple years provide truer picture and should be averaged | AO10 requires tax returns only for self-employed payors; Michael is not self-employed | Court held AO10 does not mandate multi-year averaging here; reliance on AFM and testimony permissible |
Key Cases Cited
- Taylor v. Taylor, 369 Ark. 31 (2007) (affirming trial court’s averaging over a seven‑week period for fluctuating weekly income)
- Delacey v. Delacey, 85 Ark. App. 419 (2004) (trial court erred by using a single high‑earning month rather than averaging monthly income)
- Evans v. Tillery, 361 Ark. 63 (2005) (discussing broad definition of income under support guidelines)
- Ford v. Ford, 347 Ark. 485 (2002) (income definition and policy to interpret income broadly for benefit of child)
- Boyd v. Crocker, 2017 Ark. App. 108 (2017) (standard of review for child‑support modification appeals)
- Garcia v. Garcia, 2018 Ark. App. 146 (2018) (failure to cite authority or make a convincing argument supports affirmance)