Wyliea Lindley SULLIVAN v. Kenneth Leonard EDENS
90-171
Supreme Court of Arkansas
December 17, 1990
Rehearing denied January 14, 1991.*
801 S.W.2d 32
*Hays and Glaze, JJ., would grant rehearing. Corbin and Brown, JJ., not participating.
In the case at bar, the State argues that the additional factors are supplied by the three defendants being “nervоus and jittery” and by Miller‘s crying and saying he had never done anything like that before. The argument misses the mark.
The standard of review on appeal of a trial court ruling on a motion to suppress is now well established: On appeal the appellate court will make an independent dеtermination based on the totality of the circumstances as to whether evidence obtained by means of a warrantless search should be suppressed, and the trial court‘s finding will not be set aside unless it is clearly erroneous. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987).
Viewing the evidence in the light most favorable to the appellees, as we must do, it is obvious that Cross‘s crying and stating that he had never before done anything like this could well have meant that he never before had smoked marijuana. Further, being “nervous and jittery” could well have been the result of the accident. We cannot hold that the ruling of the triаl court was clearly erroneous.
Affirmed.
Crawford Law Firm, by: Michael H. Crawford, for appellee.
ROBERT H. DUDLEY, Justice. This is a significant case involving the collection of accrued but unpaid child support. The 1978 divorce decree awarded custody of the children to the mother, appellant, and ordered the father, appellee, to рay monthly child support in an amount equal to 32% of his take-home pay, but, in any event, not less than $200.00 per month. In 1982, the mother filed a petition asking that the father be held in contempt for failing to pay child support. Prior to the hearing, the father paid the mother $1,000.00, and they agreed that the futurе amount of child support would be a fixed $200.00 per month, increasing to $225.00 per month beginning in 1984, and further increasing to $250.00 per month beginning in 1987. Neither party petitioned to have the original decree modified. The mother‘s petition was later dismissed for failure to prosecute.
After hearing the evidence the trial court found that the applicable statute of limitation was five years, and the mother “is not entitled to the amount previously ordered by this court but shall be entitled to the amount agreed by the parties.” The mother appeals and argues that the trial court erred (1) in applying a five year statute of limitation and (2) in refusing to give judgment for the full amount of past due child support. The trial court did err in fixing the amount of arrearage and, accordingly, we reverse.
The chancellor applied the correct statute of limitation. Prior to 1989, the statute of limitation applicable to arrearages accruing as the result of failure to comply with an order оf child support was five years.
The mother filed her suit for collection оf arrearages on July 12, 1989. She voluntarily dismissed the suit in October 1989, but re-filed it on December 7, 1989, which was within one year of the nonsuit. Thus, the chancellor correctly ruled that the mother‘s
Next, the mother assigns as error the chancellor‘s ruling that she “is not entitled to the amount previously ordered by this court but shаll be entitled to the amount agreed by the parties.” Again, a relatively new statute is applicable and requires that we divide this point into two sub-parts: (1) decide the amount of arrearages due before the statute‘s effective date, and (2) then decide the arrearages due after its effective date.
The chancellor made a finding of fact that the parties agreed to reduce the child support to a fixed $200.00 beginning in 1982, $225.00 per month beginning in 1984, and $250.00 beginning in 1987. That finding is not clearly erroneous, and we affirm it. Prior to 1987, agreements between former spouses reducing the amount of child support payments did not bind the court, but the court could recognize such an agreement (1) if the agreement was supported by a valid consideration, Ray, v. Manatt, 250 Ark. 230, 465 S.W.2d 111 (1971), or (2) if it were inequitable to do otherwise, Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980). An example of consideration is where the amount of child support is reduced by agreement and the obligor thеn takes custody of one of the children. Ray v. Manatt, supra. Here, there was a comparable consideration. The mother gave up the right to 32% of the father‘s income but gained an increase in the fixed amount of support from $200.000 to $250.00 per month over a period of time. This was significant since the father had been unemployed some of the time just prior to the agreement. Accordingly, the chancellor did not err in recognizing the agreement.
However, the chancellor did err in refusing to be bound after the effective date of the new act.
(b) Any decree, judgment, or ordеr which contains a provision for the payment of money for the support and care of any child or children through the registry of the court shall be final judgment as to any installment or payment of money which has accrued until the time either party moves through proper motion filed with the court and served on the other party to set aside, alter, or modify the decree, judgment, or order.
(c) The court may not set aside, alter, or modify any decree, judgment, or order which has accrued unpaid support prior to the filing of the motion. However, the court may offset against future support to be paid those amounts accruing during time periods, other than reasonable visitation in which the noncustodial parent had physical custody of the child with the knowledge and consent of the custodial parent.
The General Assembly re-adopted identical provisions in 1989.
These statutes were enacted to insure that child support programs of the State of Arkansas would qualify for future funding from the United States Department of Health and Human Services. In Title IV-D of the Social Security Act, Congress appropriated funds for such a progrаm.
(a)(9)(A) a judgment by operation of law, with the full force, effect, and attributes of a judgment of the State, including the ability to be enforced,
(B) entitled as a judgment to full faith and credit in such State and in any other State, and
(C) not subject to retroactive modification by such State or by any other State; except that such procedures may permit modification with respect to any period during which there is pending a petition for modification, but only from the date that notice of such petition has been given, either directly or through the appropriate agent, to the obligee or (where the obligee is the petitioner) to the obligor.
In April of 1989, the Office of Child Support Enforcement of the Department of Health and Human Services issued its final
As previously set out, the original decree in this case was never modified by the court. Only a court can modify its decree and, as a result, the original decree remains in effect. After the new statute was enacted, the trial court could not “set aside, alter, or modify” the “order which has accrued unpaid support.” Thus, the chancellоr erred in ruling he could recognize the parties’ private agreement for the payments which fell due after the effective date of the act.
This is an appeal from a chancery case. We hear equity appeals de novo on the record made belоw, and ordinarily dispose of such cases on that record. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). However, if the record is not sufficient for us to dispose of the case, we have the discretionary power to remand an equity case for further proceedings. Ferguson v. Green, supra. The record in this case does not reveal what 32% of the father‘s income amounted to for the period after the 1987 act became effective. Thus, we do not have a sufficient record to finally dispose of the case. Accordingly, we remand the case for determination of the full amount of child support due.
HAYS and GLAZE, JJ., dissent.
PRICE, J., concurs.
DALE PRICE, Justice, сoncurring. I concur with the majority. However, for the benefit of the bench and bar I note that in the past some courts devised formulas by which child support would be determined in the future, for example, “32% of take home pay.” Two statutes now require that such a practice be abandоned.
I concur.
TOM GLAZE, Justice, dissenting in part. The majority court correctly upholds the trial court‘s finding that the parties entered into an agreement that, commencing in 1982, appellee would pay child support in the reduced amount of $200 per month and then increase it in monthly amоunts to $225 in 1984 and to $250 in 1987. While this agreement varied from the parties’ earlier agreement which was incorporated into their 1978 decree, this court has sanctioned such variances in or modification agreements of both alimony and child support payments. See Cunningham v. Cunningham, 297 Ark. 377, 761 S.W.2d 941 (1988); Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980).
After correctly affirming the trial judge‘s finding of a modified child support agreement entered into by the parties in 1982, the majority then mistakenly proceeds to apply
In sum, the majority‘s decision not only improperly applies Act 1057 of 1987 retroactively to reinstate support payments in the parties’ 1978 decree, Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981), it also places a construction on that Act which unconstitutionally impairs the parties’ 1982 contractual obligation. See James v. Cheney, 253 Ark. 926, 489 S.W.2d 785 (1973);
It is settled law that all legislation is intended to act only prospectively, and all statutes are to be construed as having only a prospective operation unless the purpose and intention of the Legislature to give them a retroactive effect is expressly declared or necessarily implied from the language used. Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297 (1958). When enacting Act 1057, the Legislature gave no hint that it intended to affect prior agreements such as the one entered into by the parties here in 1982. The trial court, and this court on appeal, determined that the 1982 agreement lawfully supplanted the support agreement previously incorporated in the 1978 decree. This court now errs in using Act 1057 to reinstate and enforce the parties’ originаl agreement.
For the reasons given above, I would affirm this cause in all respects.
HAYS, J., joins this dissent.