APRIL JOHNSON v. BRADLEY JOHNSON
No. CV-21-503
ARKANSAS COURT OF APPEALS
October 18, 2023
2023 Ark. App. 464
WAYMOND M. BROWN, Judge
DIVISION I | Opinion Delivered October 18, 2023 | APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION [NO. 60DR-05-4859] | HONORABLE MACKIE M. PIERCE, JUDGE
WAYMOND M. BROWN, Judge
April Johnson appeals from the postdivorce order of the Pulaski County Circuit Court that resolved issues of child support and contempt. On direct appeal, April argues the circuit court erred in (1) finding that Bradley Johnson is obligated to pay 25 percent of his bonuses but not his commissions; and (2) crediting payments made directly to April against Bradley’s arrearage. Bradley cross-appeals, arguing the circuit court erred in (1) ordering him to pay support based on a percentage of his total additional income; (2) finding him in contempt; and (3) awarding attorney’s fees to Aрril.1 We affirm on direct appeal and on cross-appeal.
In 2019, April filed yet another motion for an increase in child support, contempt, and other relief. Shе requested (1) that she be reimbursed for a monthly child-support deficit in the amount of $112 since entry of the last order;2 (2) a modification of child support based on Bradley’s increased net income; (3) that any increase be retroactive to the August 2013 modification filing that was dismissed without prejudice; (4) reimbursement for $1300 in orthodontic expenses incurred on behalf of the minor children; (5) proof of all bonuses Bradley received since June 21, 2007; and (6) that Bradley be held in contempt for his failure to provide his tax information as ordered, his failure to pay the $3500 in attorney’s fees as ordered, his failure to provide proof of his bonus amounts, and his failure to pay the proper amounts.
On July 30, 2019, Bradley filed a response to April’s latest motion and, in turn, filed a motion for partial judgment on the pleadings pursuant to
Following a hearing, on February 18, 2020, the circuit court entered an order denying Bradley’s motion “in part as to the res judicata element because child support is a right of the child that may be brought individually, unless heard on the merits. This matter was never litigated and there is no statute of limitations issue.” The circuit court additionally noted, “There may be a laches element in the lapse of time regarding procurement of evidence, in that records are not kept indefinitely, and [April] demands proof of payment by [Bradley] from 2009 forward.” Bradley was ordered to provide April certain tax-related documents and bank records from 2009 forward. Further, the court refused to hold Bradley in contempt for underpayment due to the scrivener’s error—$1348 monthly versus $674 biweekly.
On May 22, 2020, April filed a verified motion for contempt against Bradley, claiming there are outstanding counseling bills and that he repeatedly failed to reimburse her for his one-half.
The outstanding matters were heard on July 24, 2020. On October 21, following posttrial briefs, the circuit court issued a letter opinion stating the following:
I have had an opportunity to review and consider the pleadings, testimony, evidence, and post-trial briefs in this matter. I find the following by a preponderance of the evidence.
[Bradley] shall receive credit for $71,332.00 in direct payments to [April] made between May 2009 and June 2020. However, both parties are advised that the Court will not give credit for any payments made outside of the Clearinghouse in the future. The Court adopts [Bradley’s] argument that commissions and bonuses are separate and distinct forms of income. [Bradley] is ordered to pay twenty-five percent of his net bonuses, but not his commissions.
The Court adopts [Bradley’s] argument that [April] sat on her rights for roughly a decade and permitted [Bradley] to pay for multiple expenditures for the children. The doctrines of estoppel and laches apply and [April] shall not be entitled to any sums of support based upon bonuses prior to the filing of her motion on June 3, 2019. Her recovery shall consist of twenty-five percent of [Bradley’s] net bonuses since the date of the filing of the motion, to be calculated by the attorneys. [Bradley] shall not receive any other specific credits for sums paid to Pleasant Valley Country Club on behalf of the children.
[Bradley] is in willful contempt for his failure to timely submit his W-2 fоrms, failure to provide his tax returns, failure to provide the amounts of his bonuses, and failure to timely pay medical bills. [April] shall submit a fee petition on these issues for the Court’s consideration.
With regard to support from August 1, 2020 forward, the Court finds that the shared income model will apply. For purposes of determining [April’s] gross income, the parties shall utilize only her income from her current employer. [Bradley’s] request to average [April’s] salary over a two year period is denied.
Ms. Dickson and Mr. Rowan are directed to use the findings of this letter opinion to calculate the sum of net bonuses due to [April] since June 3, 2019 as well as the current support based upon the shared income model. Ms. Dickson will prepare a precedent with a copy to the Court and to Mr. Rowan, and Mr. Rowan will have five (5) days to object to the form of the precedent.
On June 11, 2021, Bradley filed a motion to reconsider and set aside. It was deemed filed when the order was entered on June 14. In the order, Bradley’s monthly child-support obligation was set at $1356 based on April’s monthly gross income of $7990.45 and Bradley’s monthly gross income of $20,820. Bradley was ordered to pay the minor child’s health-
The circuit court denied Bradley’s pending motion to reconsider and set side, resulting in a final order pursuant to
April’s notice of appeal was timely filed on August 9, 2021. Bradley timely filed a notice of cross-appeal on August 19. In an order entered on December 2, April was awarded
The standard of review for an appeal from a child-support order is de novo on the record, and a finding of fact by the circuit court will not be reversed unless it is clearly erroneous.5 A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made.6 In reviewing a circuit court’s findings, due deference is given to the circuit court’s superior position to determine the credibility of the witnesses and the weight to be given to their testimony.7 In a child-support determination, the amount of child support lies within the sound discretion of the circuit court, and that court’s findings will not be reversed absent an abuse of discretion.8 An abuse of discretion is found when the circuit court acts improvidently, thoughtlessly, or without due consideration.9 However, a circuit court’s conclusions of law are given no deference on appeal.10
I. Direct Appeal
On appeal, April argues that the circuit court clearly erred in finding that Bradley’s commissions are not additional net income for purposes of his child-support obligations.
Bradley’s pay structure comprises different categоries of income: base salary, commissions, and bonuses. The operative order pertaining to child support during the instant action was entered in 2009. In that order, the circuit court found that Bradley’s “net income, not including bonuses, as that term is defined in Section II of Supreme Court Administrative Order No. 10, and after deducting health and dental insurance for the minor children, is $5847.00 per month.” Bradley was ordered to pay $1348 monthly in child support. The 2009 order did not specifically address commissions, bonuses, or other sources of additional income; however, it provided that all orders not in conflict shall remain in full force and effect. Accordingly, we turn to the prior child-support order for direction. In the prior agreed order entered in June 2007, Bradley was ordered to pay child support in the amount of 25 percent of all net income received from employment, including bonuses. Consequently, because the new order was silent as to bonus income, and the prior order’s
Furthermore, the then-current version of Section II of Administrative Order No. 10 referenced in the 2009 order set forth the following definition of “income” for purposes of determining child support:
Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for:
1. Federal and state income tax;
2. Withholding for Social Security (FICA), Medicare, and railroad retirement;
3. Medical insurance paid for dependent children; and
4. Presently paid support for other dependents by court order, regardless of the date of entry of the order or orders.12
To the extent April argues that because Administrative Order No. 10 identifies commissions as income for child-support purposes, and therefore, Bradley was required to pay a percentage of his commissions earned dating back to the 2009 order, we find no reversible error. The 2009 child-support order stated a figure for Bradley’s income and the resulting child-support obligation. April admits that commissions were not averaged into the monthly child-support amount ordered. Yet, April did not appeal from that order or any of the previous orders, based on the circuit court’s alleged failure to include commissions in that figure or to expressly identify commissions as additional income as it did in relation to Bradley’s bonus payments.
Next, the parties agreed that Bradley’s regular child-support obligation from June 2009 to July 2020 totaled $175,080.98. They further agreed that through June 2020, Brаdley paid $89,860.47 in support through the Arkansas child-support “Clearinghouse,” an additional $1,250 that had yet to be included in the Office of Child Support Enforcement (“OCSE”) records, and he was entitled to a $2500 credit, amounting to a total of $93,610.47 in child-support payments during that time. These calculations established that Bradley was in arrears of $81,470.51 on his regular child-support obligation. The parties also agreed that Bradley had paid April $71,332 in direct payments. The circuit court gave Bradley credit for the total amount of those direct payments but cautioned that no future credits would be given for payments made outside thе Clearinghouse.
In Guffey v. Counts, 2009 Ark. 410, Guffey was obligated to pay Counts $405 a month child support for their two sons. At some point, Guffey informed Counts that his income had increased, and according to the chart from Administrative Order No. 10, his support obligation increased to $694 a month. He explained to Counts that to avoid legal fees, he would pay the increased amount into the registry each month. He did so for seven years. However, for four months following OCSE’s later petition to increase Guffey’s monthly obligation, he stopped making payments. Guffey’s child-support obligation was eventually increased. Counts filed a contempt petition against Guffey for the four-month gap in payments; Guffey responded that he was entitled to credit for the seven years of overpayments. The circuit court held that Guffey’s overpаyment to the child-support registry was a voluntary expenditure of child support in excess of what was required; thus, he was not entitled to receive a credit for the overpayment against four months of nonpayment.
In Glover v. Glover, 268 Ark. 506, 598 S.W.2d 736 (1980), our supreme court held that the father was not entitled to a credit against his child-support arrearages for additional support in the way of clothes, airfare, and other incidental expenses of the children that were voluntarily made. As a matter of
Contrary to April’s contention, we find Guffey and Glover factually distinguishable from the present case. In Guffey, the case involved voluntary overpayment of child support beyond the required support obligation. Here, there is no overpayment. Bradley’s direct payments to April were not in excess of his court-ordered obligation. During the time periods Bradley was making direct payments to April, he largely ceased submitting payments through the Clearinghouse. Bradley testified that he stopped making payments through the Clearinghouse for “multiple reasons.” He stated the following:
When I lost my job — — when I lost one job and it stopped going directly to the State, and there were multiple times that April had asked for checks because she needed them early. There was one time where I was sick and was unable to work, where I went to Mayo Clinic and was not getting checks, was not getting paid, but still gave April the checks during those times of illness where I was at Mayo Clinic and — — and UAMS during those times. And so there were multiple times that I just — — and then I’d bounce back and do it. But there were multiple reasons.
The record establishes that Bradley’s direct payments were consistent with, and in satisfaction of, his сourt-ordered child-support obligation.17 April makes no claim that she viewed the payments as anything other than Bradley’s court-ordered child-support
Further, because the payments were in accordance with his court-ordered child support, they cannot be deemed “voluntary” payments for which he is not entitled to credit. April acknowledges that she received the payments from Bradley. And she makes no claim that the payments were “overpayments.” She contends only that he should not be given credit for the payments because he failed to utilize the Clearinghouse for the payments. This is not a situation of overpayment or voluntary expenditures as in the cases relied on by April. Bypassing the Clearinghouse and making court-ordered payments directly to April did not serve to make the payments voluntary or gifts because Bradley was legally required to pay the child support to April. We are not persuaded by April’s argument that using the “incorrect mechanism” for the payments disqualifies it from credit toward Bradley’s child-support obligation.
II. Cross-Appeal
Bradley raises sevеral points on cross-appeal. As to his first challenge, we find his argument to be unclear. However, from what we could glean from our thorough reading, the crux of Bradley’s argument is that the circuit court erred in ordering him to pay $31,367.66 on his net additional income. The circuit court, in its order, found that the doctrines of laches and estoppel applied because April sat on her rights for approximately a decade and permitted Bradley to pay for multiple expenditures for the children. Accordingly, the court found that April was not entitled to any sums of support based on Bradley’s bonus incomе prior to the June 3, 2019, filing of her motion. The court noted
To the extent Bradley argues that the circuit court erred in ordering him to pay based on additional income received in 2019 prior to the filing of the motion, we cannot say there was an abuse of discretion. There was no testimony or evidence presented that divided the year 2019 into pre- and post-filing for purposes of earned additional income, only evidence of additional income for the entire year. In a child-support determination, the amount of child support lies within the sound discretion of the circuit court, and that court’s findings will not be reversed absent an abuse of that discretion.18 An abuse of discretion is found when the circuit court acts improvidently, thoughtlessly, or without due consideration.19 We cannot say the circuit court acted improvidently, thoughtlessly, or without due
Along those same lines, we сannot say the court clearly erred in calculating Bradley’s additional support based on the total “net additional income.” He argues that net additional income encompassed “mostly commission” and not bonuses, and the circuit court found that April was not entitled to a portion of commissions. Again, we cannot say the circuit court abused its discretion: there were no definite numbers presented as to what portion of the additional income was attributed to commissions and what portion was derived from bonus payments.
Bradley next asserts that the circuit court erroneously found him in contempt. To establish contempt, there must be willful disobedience of a valid order of a court.20 Before a person can be held in contempt for violating a court’s order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands.21 This court will not reverse a finding of civil contempt unless it is clearly against the preponderance of the evidence.22 A contempt finding is clearly against the preponderance of the evidence if, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.23
Bradley further argues that regarding the failure to timely pay certain medical bills, he did so on the advice of counsel. Specifically, he contends he did not reimburse April for the counseling bills because he did not know why the children were going to counseling, he did not know why they were under the care of an out-of-network counselor, and he did not understand why they were not using the United Healthcare insurance. Bradley claims that his attorney advised him not to pay the counseling bills at that time.
In this case, the circuit court held Bradley in contempt for multiple reasons: failure to timely submit his W-2 forms, failure to provide his tax returns, failure to timely pay medical bills, and failure to provide the amounts of his bonuses. While Bradley addresses thе contempt finding as it relates to the W-2 forms, tax returns, and medical bills, he failed to challenge the court’s finding that he was in contempt for not providing information related to his bonus payments. When two or more alternative reasons are given for a decision and an appellant does not attack them all, we must affirm.24
For his last point, Bradley argues that the circuit court’s award of $5000 in attorney’s fees to April was clearly erroneous, and he seeks reversal. As a general rule, attorney’s fees
Here, in thе order entered on June 14, 2021, the circuit court provided that April may petition for attorney’s fees on contempt and child-support arrears. Accordingly, on June 24, April moved for attorney’s fees in the amount of $9,275.66 and attached as an exhibit a detailed statement of the legal fees she incurred during the time frame relevant to the instant litigation.28 Although Bradley objected to the attorney’s fees, the circuit court ordered him to pay April $5000 in fees and costs within ninety days of entry of the order.
Bradley contends that the award of attorney’s fees constitutes an abuse of discretion because Aрril was not the prevailing party in all matters, April contributed to the lengthy litigation, and the award “is significantly attributed to the parties’ disparate incomes.”
In the case at bar, April was awarded just over half of the attorney’s fees she requested. The action covered an extended time period, Bradley was found to have child-support arrears, and he was held in contempt for multiple reasons. Despite his contention to the contrary, Bradley has failed to demonstrate a clear abuse of discretion in the circuit court’s award of attorney’s fees. Thus, we affirm the circuit court’s order directing Bradley to pay $5000 for April’s attorney’s fees.
Affirmed on direct appeal; affirmed on cross-appeal.
HARRISON, C.J., and KLAPPENBACH, J., agree.
LaCerra, Dickson, Hoover & Roger, PLLC, by: Natalie Dickson and Lauren Hoover, for appellant/cross-appellee.
Dusti Standridge, for appellee/cross-appellant.