Office of Child Support Enforcement v. Calbert

OLLY NEAL, Judge. The Office of Child Support Enforcement (OCSE) appeals the Bradley County Chancery Court’s order terminating appellee Joe Morris Calbert’s child-support obligation. For reversal, OCSE contends that the trial court erred in terminating appellee’s child-support obligation for his eighteen-year-old son, Cedric, because Cedric is still in high school and will not graduate until May 2000. Appellee Joe Calbert and Denise Calbert were divorced on June 25, 1984. Denise Calbert was awarded custody of the parties’ minor children, and appellee was ordered to pay $40 in weekly child support. On May 13, 1999, appellee filed a notice to terminate income withholding for child support pursuant to Arkansas Code Annotated section 9-14-237(a)(l). OCSE filed an objection to appellee’s notice, and countered that appellee’s child-support obligation should extend beyond Cedric’s eighteenth birthday, because he would not graduate from high school until May 2000. The chancellor found that the parties’ son should have graduated in May 1999; that his eighteenth birthday was June 2, 1999; and that appellee’s child-support obligation would terminate as of that date. This appeal followed. There is no factual dispute in this case. It was tried largely on stipulations. The parties stipulated that appellee and his ex-wife agreed that the child would repeat the second grade, that he had completed twelve years of public school, and that he would reach his eighteenth birthday before graduating from high school. The parties also stipulated that the child spends about seventy-five percent of his time in homes other than that of his mother. That time is spent at his girlfriend’s home and at the appellee’s home. The only issue at trial was whether the appellee’s obligation to pay child support would terminate when the child reached eighteen years of age. OCSE points out that appellee and his ex-wife mutually agreed to have Cedric repeat the second grade, and were it not for that decision, Cedric would have graduated prior to his eighteenth birthday. OCSE contends that the chancellor’s order should be reversed because the facts in evidence show that although Cedric Calbert is eighteen, he remains a high school student and will not graduate until he is nineteen years old. Arkansas Code Annotated section 9-14-237(a)(l) (Repl. 1998) provides: (a)(1) An obligor’s duty to pay child support for a child shall automatically terminate by operation of law when the child reaches eighteen (18) years of age or should have graduated from high school, whichever is later, or when the child is emancipated by a court of competent jurisdiction, marries, or dies, unless the court order for child support specifically extends child support after such circumstances. OCSE cites McFarland v. McFarland, 318 Ark. 446, 885 S.W.2d 897 (1994), and Matthews v. Matthews, 245 Ark. 1, 430 S.W.2d 864 (1968), in which the appellate courts have affirmed an award of child support beyond a child’s eighteenth birthday where the child has remained in school. Indeed, Arkansas Code Annotated section 9-12-312(a)(5)(A) provides: The court may provide for the payment of support beyond the eighteenth birthday of the child to address the educational needs of a child whose eighteenth birthday falls prior to graduation from high school so long as such support is conditional on the child remaining in school. This court reviews chancery cases de novo, and “when we can plainly see where the equities lie, we may enter an order that the chancellor should have entered, or we may decline to do so if justice will be better served by remand.” See McKay v. McKay, 66 Ark. App. 268, 989 S.W.2d 560 (1999). Here, we affirm the order terminating child support for a different reason than that given by the chancellor. The parties stipulated the following facts: 1) Denise and Joe Calbert divorced on June 25, 1984; 2) Denise and Joe Calbert agreed that the child would repeat the second grade; 3) Denise and Joe Calbert agreed that the child had completed twelve years of public school education beginning with the first grade; 4) Denise and Joe Calbert agreed that the child would be eighteen years old on June 2, 1999; 5) Denise agreed that the child spends seventy-five percent of the time outside of her home and that time is spent with his girlfriend and the appellee. The chancellor seemed to base his decision on the fact that Cedric should have graduated from high school by his eighteenth birthday. That decision, however, ignores the fact that appellee was instrumental in delaying Cedric’s graduation by one year in agreeing that he should repeat the second grade. The language of Arkansas Code Annotated section 9-14-237(a)(1) provides that “[a]n obligor’s duty to pay child support for a child shall automatically terminate by operation of law when the child reaches eighteen (18) years of age or should have graduated from high school, whichever is later....” (emphasis supplied). Appellee’s position that the child should have graduated from high school disregards his central role in changing when the child should have graduated. A parent cannot prevent a child from graduating and then complain about the result of his own conduct. We affirm the order, even though Cedric has not graduated high school, because the evidence shows that the majority of his time is spent outside of the custodial parent’s home. This court is bound by the stipulations of the parties. See Turner v. Eubanks, 26 Ark. App. 22, 759 S.W.2d 37 (1988). The stipulations of the parties indicate that Cedric spends only twenty-five percent of his time in Denise Calbert’s home. The overwhelming majority of the child’s time is spent at the home of appellee or the child’s girlfriend. Based on this evidence we conclude that the trial court’s decision to terminate child support was not clearly wrong. Affirmed. Jennings, J., agrees. Stroud and Roaf, JJ., concur. Robbins, C.J. and Hart, J., dissent.