Opinion
No. CA12-107
10-24-2012
DAVID BYRD APPELLANT v. DARLENE BYRD and STATE OF ARKANSAS OFFICE OF CHILD SUPPORT ENFORCEMENT APPELLEES
Molly E. Lucas, for appellant. Kimberly J. Keller, State of Arkansas Office of Child Support Enforcement, for appellee.
APPEAL FROM THE BOONE COUNTY CIRCUIT COURT [NO. DR 2002-297-1]
HONORABLE SHAWN A. WOMACK, JUDGE
AFFIRMED; MOTION DENIED
RITA W. GRUBER , Judge
This appeal arises from an order of the Boone County Circuit Court modifying the child-support obligation of appellant, David Byrd. On appeal, appellant contends, first, that the trial court erred in imputing income to him in this case and, second, that the trial court should be required to find that the record clearly establishes an intent to evade parental responsibilities before it can impute income. We affirm the trial court's order.
Appellees filed a motion to dismiss this appeal for failure of appellant to file a complete record on appeal. Appellant admitted that he filed only a partial record on appeal but argued that he deemed other parts of the record—transcripts of other hearings—unnecessary for his appeal. We deny appellees' motion to dismiss and decide the case.
David and Darlene Byrd were divorced by a decree entered on March 29, 2004, and have two children together: V.B., born July 31, 2001; and A.B., born December 30, 2003. Appellee Darlene Byrd has primary custody of the children. On October 18, 2006, the trial court ordered appellant to pay $1,023 per month in child support on the basis of his annual salary of $81,000 at Parson's Dispatch.
Sometime in early December 2006, appellant quit his job at Parson's and, on December 28, 2006, filed a motion requesting a temporary modification of his support obligation. The court held hearings in 2007 and 2008 pursuant to which appellant was held in contempt for failure to comply with his support obligations. However, a hearing on his motion for temporary modification was not held until August 2011 due to appellant's failure to perfect service on appellees, Darlene Byrd and the State of Arkansas Office of Child Support Enforcement (the State), until late 2009. The only evidence produced at the hearing was the testimony of appellant, his affidavit of financial means, and his tax returns from 2007 through 2010.
Appellant, who was fifty-one at the time of the hearing, testified that he had been the bookkeeper at Parson's and had essentially run the company for an annual salary of $81,000. He said that he quit his job with Parson's for an "ethical reason" when he discovered that his boss, the owner of the company, was taking money out of the account to spend at casinos. He felt that he had to leave when he was forced to write checks without knowing whether there were funds in the account to cover them.
He testified that his formal education consisted of high school and training as a market analyst. After he left Parson's, he took a job driving a school bus for Washington County, which he said brought in some money and allowed him to pick up his stepchildren from school. His wife at that time owned a home in a gated neighborhood, "made good money at Walmart," and paid all of the household and car expenses. However, he was terminated from the school-bus job in the fall of 2009 and his then-wife left him. He was also hospitalized in October 2009 for attempting suicide.
While he testified that he found it difficult to find a job because of his lack of education, he presented no evidence that he had applied for any jobs, and he failed to respond to interrogatories requesting job applications or information regarding positions for which he had applied after he left Parson's. He admitted on cross-examination that he had not made an effort to secure additional employment but said that it was his "interpretation of the law" that he was not required to make attempts to get a better job but merely had to support his children.
He testified that, at the time of the hearing, he worked nine to eighteen hours per week for Vaughn Recycling earning $14 per hour and had been attending community college for the past two years studying computer programing. His tax returns showed the following income: in 2007, $15,715; in 2008, $15,593; in 2009, $8,341; and in 2010, $15,576. He testified that he did not attend classes during the summer but that he had not secured additional work because he wanted to spend time with his children. He admitted that he did not know if he would have applied for additional work even if he had not spent time with his children. He said that he had two to three more years of school to get his degree.
He testified that he owned four horses and rented a pasture for them. He paid $85 per year for riding clubs in addition to $10 per week if either he or the children rode that week. He also testified that he paid $25-$30 each weekend for gas to get to the riding club. He did not provide copies of his bank statements for the past four years in spite of the State's request for them. He said that his school was paid for by a Pell Grant, with an additional $1000 paid to him, and that he also obtained funds from the Lottery Scholarship. He testified that he was in counseling, which he said was helping him get his depression under control.
Upon questioning by the court, appellant admitted that he needed about forty hours each week to attend classes and study. He testified that he worked between nine and eighteen hours per week. After calculating the available hours in a week and assuming eight hours each day for sleeping, the court indicated that there was sufficient time for appellant to work significantly more than he had been and still devote forty hours each week to college. Appellant testified that he used that extra time to sleep. He said that he did "a lot of sleeping." He did not think he could get a full-time job because he was depressed, though he admitted that school made him feel better about himself.
The court entered an order recognizing that some economic factors had changed that had likely affected appellant's earning capacity since its last order of child support, but found that appellant had made "little effort" to better his situation and found that the "voluntary nature of the reduction in his earning capacity" mitigated any relief to which he was entitled. The court imputed to appellant the ability to earn eighty percent of his previous income, consequently reducing his monthly support obligation by twenty percent, or $205. Because of appellant's delays in pursuing the case and his lack of effort in pursuing income to the capacity that he had the ability to earn, the court denied his request to make the modification retroactive to the filing of his petition in 2006 and ordered that the modified amount of $818 was effective retroactive to January 1, 2011. The court also ordered him to pay $163.60 monthly toward satisfaction of the State's $31,125.35 judgment for unpaid child support. Appellant brought this appeal from the court's order.
We review child-support orders de novo on the record, and we will not reverse a finding of fact unless the finding is clearly erroneous. Hill v. Kelly, 368 Ark. 200, 243 S.W.3d 886 (2006). The amount of child support lies within the sound discretion of the circuit court, and we will not reverse that amount absent an abuse of discretion. Hayes v. Otto, 2009 Ark. App 654, at 6, 344 S.W.3d 689, 693. In reviewing a trial court's findings regarding child support, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. at 7, 344 S.W.3d at 693.
Appellant's first point on appeal is that the trial court erred in imputing income of $64,000 when his actual average income for the previous four years was $13,806 because his unemployment was not voluntary and his reduction in income was reasonable and justifiable. Specifically, he argues that he quit his job at Parson's for an ethical reason, which was justifiable. He claims that he then "aggressively" looked for a job and found one driving a school bus. He argues in his brief that he had a hard time finding a job due to his lack of education and his "mental issues." He argues that attending college is the equivalent of a fulltime job, and that his counselor thinks going to school is what he needs to be doing.
We turn to the law governing a trial court's authority to impute income in calculating a party's obligation to pay child support. The seminal case on the issue is Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988). In Grady, Mr. Grady, a staff attorney for the Department of Correction for twelve years, making approximately $1900 a month, resigned from his position after he separated from his wife and began a solo law practice where his estimated net income was $81 a week. The parties had six children, four of whom were living at home at the time of the divorce hearing. Mrs. Grady was forty-five years old at the time of the divorce, had an eighth-grade education, no special training, and a history during the twenty-two-year marriage as a housewife caring for the children. The circuit court awarded custody to Mrs. Grady and ordered Mr. Grady to pay $600 a month in child support and $10 a year in alimony. Mr. Grady argued on appeal that the court could not base a child-support award on his earning capacity when his earnings were considerably less at the time of the divorce. The supreme court disagreed and stated that there are circumstances under which it is appropriate to order child support based on a party's earning capacity rather than on actual earnings. The court determined that "[a] supporting spouse does not have total discretion in making decisions which affect the welfare of the family, if the minor children have to suffer at the expense of those decisions." Id. at 98, 747 S.W.2d at 79. Noting that a determination of the proper circumstances under which to impute income is often difficult, the court stated
On the one hand, the courts must not unduly interfere with the personal lives and career choices of individuals merely because they have been involved in a divorce. On the other hand, because there has been a divorce, the courts are thrust into the middle of the parties' personal lives in order to protect the interests of the minor children who are also unwilling participants in the divorce.Id. (quoting Rohloff v. Rohloff, 411 N.W.2d 484 (Mich. Ct. App. 1987)).
After its decision in Grady, the supreme court included a provision concerning imputed income in the Arkansas Child Support Guidelines:
d. Imputed Income. If a payor is unemployed or working below full earning capacity, the court may consider the reasons therefor. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a payor up to his or her earning capacity, including consideration of the payor's life-style. Income of at least minimum wage shall be attributed to a payor ordered to pay child support.Ark. Sup. Ct. Admin. Order No. 10(III)(d) (2012).
While appellant testified that his underemployment was reasonable, that he had "aggressively" searched for better employment, and that he had a hard time finding a job due to his lack of education and "mental issues," he offered no evidence to support his statements. He introduced no evidence that he had applied for any jobs at all, in spite of the State's and the court's repeated requests for such information. Nor did he introduce testimony or reports from his counselor regarding her alleged opinion about his mental state. He also testified that his interpretation of the law was that he was not required to work to his earning capacity, but was required merely to support his children. In any case, the court's own questions indicated that it believed appellant had not attempted to maximize his earning capacity or to earn a better living and that his failure to find a better job was a matter of choice. The court's questions suggested that appellant was sleeping during the time that he might have been earning additional income to support his children. Given the record provided by appellant and our deference to the trial court, we cannot say that the trial court abused its discretion in imputing income to appellant in this case.
For his second point on appeal, appellant argues that, before a trial court may impute income, the record should show an intent to evade parental responsibilities. He claims that the changes in economics and socioeconomics since Grady was handed down warrant consideration of new policy arguments in this area of the law. He argues that he has experienced the psychological effects of unemployment and underemployment, which caused his depression. First, appellant failed to bring up a record supporting his blanket assertions about the changes in economics and socioeconomics and their specific effect on his psychological state. Second, he failed to make this argument to the trial court. And finally, whatever our own views concerning this issue, this court is not the proper forum to entertain appellant's arguments. The law governing imputed income was set by the supreme court in Grady and in Administrative Order No. 10, and we have no authority to overrule, amend, or expand it. See, e.g., Horton v. Horton, 71 Ark. App. 251, 252, 29 S.W.3d 367, 368 (2000).
Affirmed; motion denied.
GLADWIN and GLOVER, JJ., agree.
Molly E. Lucas, for appellant.
Kimberly J. Keller, State of Arkansas Office of Child Support Enforcement, for appellee.