570 S.W.3d 484
Ark. Ct. App.2019Background
- Parties met in medical school (Poland); two daughters born to Szwedo in 2010 and 2013; parties separated in 2015. Cyrus admitted paternity; custody agreement gave joint legal custody with Szwedo primary physical custodian. Child-support issues reserved for final hearing.
- Cyrus amended his answer five days before trial to assert affirmative defenses (estoppel, laches, payment, setoff, waiver, satisfaction); the court allowed the amendment and heard related evidence.
- At trial the court found Cyrus’s net monthly income was $40,000, set current support at $8,333/month, denied Szwedo’s request for roughly $450,000 in retroactive child support, but ordered Cyrus to fund 529-style accounts of $100,000 for each child.
- Court later clarified it intended no award of retroactive support and treated the education accounts as a means to provide for education; it also ordered Cyrus to pay $20,000 of Szwedo’s attorney fees and split the remainder of the ad litem fee equally.
- Szwedo appealed, raising six points including timeliness of the amendment, retroactive and current support calculations, ad litem fee procedure, access to medical records, and international travel with the children.
Issues
| Issue | Plaintiff's Argument (Szwedo) | Defendant's Argument (Cyrus) | Held |
|---|---|---|---|
| Whether court erred in allowing Cyrus to amend answer five days before trial | Amendment was untimely and prejudiced her trial preparation | Amendment permissible under Rule 15; no prejudice shown and no continuance requested | Affirmed — court did not abuse discretion allowing amendment; plaintiff failed to show prejudice |
| Whether retroactive child support must be awarded and amount | Retroactive support (≈ $450,000) is mandatory from birth under Ark. Code §9-10-111; court erred by denying it | Argued in-kind support/offsets (housing, expenses) justified reducing or substituting award (education accounts) | Reversed — retroactive support must be awarded pursuant to Administrative Order No. 10 guidelines; remanded for guideline-based calculation (court cannot substitute trust/529 in lieu of retroactive award) |
| Whether current support and income finding were correct | Cyrus’s net monthly income was higher (~$49,700) so support should be ~$10,370/month | Court reasonable to average variable income and find $40,000/month; $8,333/month consistent with guidelines | Affirmed — no abuse of discretion in finding and setting current support at $8,333/month |
| Procedure for attorney ad litem fees, medical-record release, and international travel safeguards | Court erred by awarding ad litem fees without motion/documentation; medical-record access violated privacy; allowing travel to non‑extradition countries unsafe | Szwedo acquiesced at trial to fee procedure; protective order governed medical records; ad litem recommended travel with safeguards (bond, itinerary, waiver) | Affirmed in part — estoppel and lack of demonstrated prejudice defeat fee objection; protective order and lack of prejudice defeat medical-record complaint; travel authorized with safeguards and objections not preserved on appeal |
Key Cases Cited
- Ward v. Doss, 361 Ark. 153 (discussing standard of review for child-support appeals)
- McWhorter v. McWhorter, 346 Ark. 475 (deference to circuit court factual findings)
- Akins v. Mofield, 355 Ark. 215 (use of child-support guidelines for retroactive support)
- Gilbow v. Travis, 2010 Ark. 9 (court cannot order retroactive support to be placed in trust/interest-bearing account)
- Davis v. Bland, 367 Ark. 210 (requirements for deviation from support guidelines)
- Taylor v. Taylor, 369 Ark. 31 (abuse-of-discretion standard for child-support determinations)
- Deer/Mt. Judea Sch. Dist. v. Kimbrell, 2013 Ark. 393 (liberal amendment policy under Rule 15)
- Dupwe v. Wallace, 355 Ark. 521 (estoppel against inconsistent positions on appeal)