463 S.W.3d 305
Ark. Ct. App.2015Background
- Gina and Thomas divorced in 2009; Gina received primary custody and $700/month child support for three children.
- Thomas developed serious medical conditions in 2013, stopped working, applied for disability, and fell behind on support; Gina moved for contempt and to increase support; Thomas countered to reduce support due to lack of income.
- After an attempted April 2014 hearing was not held (technical issues), counsel each submitted proposed orders and calculations to the trial court and asked the judge to decide on the papers; no new hearing was requested before entry of the order.
- The trial court adopted Thomas’s proposed calculations, finding Thomas medically unable to work, applying disability payments and an imputed low income for months with no income, and setting support at $110/month (three children) reduced to $93/month (two children) with total arrears of $6,760 as of June 2014.
- Gina moved to set aside the order, arguing lack of hearing/due process, improper assumptions about disability, incorrect arrearage calculation, and failure to comply with Administrative Order No. 10; the motion was denied and Gina appealed.
Issues
| Issue | Plaintiff's Argument (Gina) | Defendant's Argument (Thomas) | Held |
|---|---|---|---|
| Whether child support must follow the Family Support Chart or may be set lower without explained deviation | Chart must be used; any deviation requires written findings under Admin. Order No. 10 | Court properly applied chart to Thomas’s imputed income; no unexplained deviation occurred | Court: No abuse of discretion; court applied chart to a lower imputed income, so no deviation required |
| Whether Gina was denied due process by entry of order without a hearing | She was entitled to an evidentiary hearing to present income evidence before entry | Parties submitted proposed orders and evidence and consented (by conduct) to decision on the papers; Gina waived a hearing by not requesting one | Court: Gina waived right to a hearing by submitting proposed orders and failing to request hearing prior to entry |
| Whether the court improperly presumed disability without medical evidence | The court should not reduce support based on presumed disability absent medical proof and requirement to apply for SSD | Thomas had presented medical evidence in the record and both sides acknowledged his incapacity; trial court found him medically unable to work | Court: Trial court’s factual finding of disability was not clearly erroneous; reduction was justified and within discretion |
| Whether child-support arrearages and medical obligations can be deferred pending disability backpay (and whether calculation was erroneous) | Trial court miscalculated arrears and improperly deferred collection, unfairly shifting burden to Gina | Trial court set judgment for arrearages and provided for payment from any future disability backpay; calculations based on submitted records and adopted Thomas’s figures | Court: Arrearage calculation and collection approach were not clearly erroneous; judgment can be reduced to a sum certain for collection and backpay application was permissible |
Key Cases Cited
- Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (court presumes the Family Support Chart amount is appropriate)
- Davie v. Office of Child Support Enforcement, 349 Ark. 187, 76 S.W.3d 873 (court may impute income but must consider reasons for unemployment; no imputation required when disability not by choice)
- Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (standard for reversal—no distinct and firm conviction of error)
- McWhorter v. McWhorter, 2009 Ark. 458 (process for reducing past-due child support to a sum certain for judgment/collection)