Howard v. Wisemon

Melvin Mayfield, Judge. The issue in this case is the amount the appellee should be required to pay for the support of his minor daughter. The appellant is the mother of the child who was 13 years old at the time of the hearing. The appellant contends that the chancellor clearly abused his discretion in failing to apply the rebuttable presumption that the amount of child support contained in the family support chart is the correct amount. The brief makes it clear that the appellant is referring to the chart found in the Arkansas Supreme Court’s per curiam of February 5, 1990. See In Re: Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990). The appellee father was directed by a court order entered on December 19, 1979, to pay $50.00 per month for support of the child whose support is the subject of this appeal. The appellant started the instant case by filing a petition on July 23, 1990, asking that the child support be increased. The first thing to be noticed is the provision of the Supreme Court’s per curiam which states: In determining requested modifications of child support orders entered prior to the effective date hereof, the trial court should consider the totality of the present circumstances of the parties and avoid modifications that would work undue hardship on the parties or any persons presently dependent thereon. 301 Ark. at 630. It is clear that the above provision applies to the instant case. The record shows that the appellee was found to be the father of the child here involved after a hearing on a complaint filed in December of 1979. The complaint stated that the child was born out of wedlock, and the appellee was ordered to pay $50.00 per month support. According to the mother, this amount was paid fairly regularly from 1979 up to the date the petition to modify was filed in July of 1990. That petition asked for an arrearage of $90.00; however, the court determined from the evidence that the proper arrearage was $910.00 and ordered that amount to be paid at the rate of $ 15.00 per month. This is in addition to the increase from $50.00 per month to $30.00 per week ordered by the court, plus the provision that the appellee father should pay one-half of the child’s “medical, dental, orthodontic, optometric, and prescription expenses.” At the hearing on November 14, 1990, the appellee introduced a pay stub into evidence showing that his pay for a week in September of 1990 was $273.00. This included two hours overtime, and the stub showed deductions for taxes and social security in the amount of $62.81, leaving his net pay at $210.63 for the week. He testified that he was married and living with his wife and three children, two of which were his. He said his monthly expenses were $1,461.83. Included in this amount was $511.83 for mortgage payments on the house in which appellee and his wife lived. The house, however, belonged to the wife. She had a gross income of about $14,500.00 per year. The appellant testified that her child is older now and needs more money for support. The appellant makes $186.00 per week gross. Deductions are $64.41 leaving a net weekly income of $121.59. She listed monthly living expenses of $395.83, and said she is in bankruptcy. The chancellor found that appellee had a weekly income in the amount of $210.00, and the chart called for $51.00 per week child support. He stated the statutes and supreme court rules required support in the amount set out in the chart unless there was some reason to alter that amount. He stated the chart would quadruple appellee’s payments and, considering his expenses, it would be devastating to increase by four times the amount of his support payments. Therefore, the chancellor said he was going to increase the weekly payment to $30.00 instead of $51.00. The court’s written order also contained essentially the same findings. We affirm the trial court. Its order followed the requirements and applied the rules set out in the supreme court’s per curiam of February 5, 1990. That per curiam states, as to modification of orders entered prior to the per curiam, that the court “should consider the totality of the present circumstances of the parties and avoid modifications that would work undue hardship on the parties or any persons presently dependent thereon.” 301 Ark. at 630. The appellant’s net income of $121.00 per week (about $484.00 per month) is a little more than her monthly expenses of $395.83. She will get an additional $120.00 per month from the increased child support payments, plus $15.00 per month until the $910.00 arrearage is paid. Appellee’s expenses of $1,461.83, when reduced by his $511.83 house mortgage (for which he is liable but which makes payments on the house owned by his wife), leaves his monthly expenses at $950.00. Added to that will be an increase in support payment to appellant. His net income is only $840.00 per month and this will not meet his expenses. His wife will obviously have to pay part of these expenses to help support him, their two children, and the one child of her own. In Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992), the Arkansas Supreme Court said: After figuring the child support amount under the chart, a chancellor has the discretion to adjust the amount if equitable and if written findings are made to that effect. In making the decision, the chancellor can consider a parent’s ability to pay. This would necessarily include a consideration of other children the parent is legally obligated to support. 308 Ark. at 284. Under the law and the evidence, we cannot say the findings of the chancellor are clearly erroneous. Affirmed. Rogers, J., dissents.