Kemp v. Kemp
2011 Ark. App. 354
| Ark. Ct. App. | 2011Background
- Married 1993, divorced 2005; three children: K.K. (1997), L.K. (2000), G.K. (2004).
- Custody/child support agreement provided joint custody with Dana as primary custodian; Kevin to pay $4,500/month child support.
- Agreement also required private school costs shared, health insurance premiums, and ongoing medical expenses; alimony of $2,000/month to Dana.
- Alimony scheduled 2005–2009, terminated upon death, Dana’s remarriage, or cohabitation; Kevin to maintain life insurance naming Dana.
- In 2009 parties set new arrearage settlement and child-support amount; alimony terminated 2008 in “spirit of compromise.”
- Dana sought modification in 2009, arguing increased income justifies higher support; trial court denied modification, maintaining $9,210.52/month.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court properly deviated from the chart amount. | Kemp argues chart amount unnecessary given needs exceed. | Kemp argues chart overstates needs; deviation warranted by AO 10 factors. | No reversible error; trial court within discretion, no sufficient deviation warranted. |
| Whether the presumption of chart-based support applied. | Dana contends presumption should favor chart amount. | Kevin contends presumption can be rebutted; needs-based analysis shows excess. | Presumption upheld; evidence did not justify deviation. |
| Whether AO No. 10 factors and custodial income should affect modification. | Dana argues custodial income and needs support modification. | Kevin argues custodial income reduces necessity of higher support. | AO 10 factors considered; court appropriately weighed incomes and needs. |
Key Cases Cited
- Schumacher v. Schumacher, 986 S.W.2d 883 (Ark. App. 1999) (mandatory chart reference; discretion in deviation)
- Payton v. Wright, 972 S.W.2d 953 (Ark. App. 1998) (change in circumstances required for modification)
- Hayes v. Otto, 344 S.W.3d 689 (Ark. App. 2009) (de novo review; credibility determinations; abuse of discretion standard)
- Smith v. Smith, 19 S.W.3d 590 (Ark. 2000) (presumption in favor of chart-based amount; needs-based analysis)
- Williams v. Williams, 108 S.W.3d 629 (Ark. App. 2003) (court may deviate if chart amount exceeds needs; consideration of custodial income)
- Davis v. Bland, 238 S.W.3d 924 (Ark. 2006) (excessive support not in child’s best interest; promotes work ethic)
- Gilbow v. Travis, 372 S.W.3d 319 (Ark. 2010) (separate accounts for children’s benefit not allowed; affects modification analysis)
- Ceola v. Burnham, 189 S.W.3d 150 (Ark. App. 2003) (deviation considerations when chart exceeds needs)