Metz v. Langston

Cite as 2015 Ark. App. 319

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-14-970

Opinion Delivered MAY 13, 2015

APPEAL FROM THE SEBASTIAN
GINA METZ (formerly LANGSTON) COUNTY CIRCUIT COURT,
APPELLANT GREENWOOD DISTRICT
[NO. DR-09-20-A-G]
V.
HONORABLE JIM D. SPEARS,
JUDGE
THOMAS LANGSTON
APPELLEE AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Gina Langston Metz and appellee Thomas Langston divorced in 2009,

at which time Gina was awarded primary physical custody of their three children and

$700 per month in child support from Thomas. Gina appeals the June 2014 order that

reduced Thomas’s child-support obligation and calculated past-due support arrearages. After

conducting a de novo review, we affirm because Gina has failed to demonstrate clear error

or an abuse of discretion.

In 2013, Thomas incurred health issues and fell behind on child support. In August

2013, Gina filed a motion for contempt alleging that Thomas failed to pay child support and

his half of the children’s medical expenses not covered by insurance, as well as a motion to
Cite as 2015 Ark. App. 319

increase child support and to modify visitation.1 In September 2013, Thomas filed a response,

resisting Gina’s motion for contempt, and countered with a motion to reduce child support

due to his taking medical leave from employment and currently receiving no income.2

A hearing was scheduled for April 8, 2014, but the hearing was not conducted due to

technical problems with the official court reporting system. Counsel for the parties met in

chambers with the trial court. Counsel were urged by the trial court to work out the issues,

but a new hearing was not requested or set. In the intervening two months, the parties were

able to resolve many outstanding issues but not the proper amount of past-due child support

arrearage and current child-support obligation. Each party sent a letter to the trial court

advancing her or his respective position on what the child support obligation should be, past

and present.

Gina’s attorney’s letter was the first sent to the trial court, dated June 10, 2014.

Therein, attorney Shannon Foster stated, “Stephen Smith [Thomas’s attorney] and I decided

we would each send you our Orders with proposed calculations for the child support, so the

Court could determine the proper child support amount and arrearage.” She provided an

original and three copies of her proposed order. In the letter, she contended that Thomas was

$1,950 behind as of August 2013; that he received highly variable specified weekly income

between August 2013 and April 2014 from his employer Gerdau Macsteel and from short-

1
Her motion to increase child support and to modify Thomas’s visitation are not before
us on appeal.
2
His response additionally asked the trial court to hold Gina in contempt with regard
to visitation, but this issue is not before us on appeal.

2
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term disability insurance payments from The Hartford; and that a downward adjustment was

made to account for the oldest child having reached majority in June 2014. Gina attached to

her letter payroll documents from Gerdau Macsteel and disability benefit information from

The Hartford pertaining to Thomas’s benefits. Gina charted per-week child support figures,

depending on actual moneys received. She contended that Thomas should pay $106 per

week in child support from March 2014 forward, when Thomas was no longer receiving any

income at all, reduced to $90 per week from and after the time that their oldest child

graduated from high school.3

In her proposed order, Gina acknowledged that Thomas had histoplasmosis and

meningitis, was currently unemployed, had applied for disability and appealed the denial, and

had seizures that prevented him from driving. Her proposed order also conceded that “a

downward modification of child support is warranted based on the Defendant’s current

unemployment and medical condition, as of date of filing.” Gina proposed an arrearage for

child support in the amount of $8,200 as of mid-April 2014, $106 in weekly child support

owed from mid-April until early June 2014, and then $90 per week thereafter for the

remaining two minor children. Her proposal for arrearages was for Thomas to pay $18 per

week over the $90-per-week rate. In addition, her order recited that Gina would be awarded

judgment for the past due amount, and “if or when the Defendant does qualify for disability

and is awarded backpay, the arrearage balance at that time shall be paid from the backpay

3
Gina contended that during the period of time that Thomas was not receiving any
income or disability benefits, the court should impute income at a rate of $250 per week.

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amount.” The orthodontic and medical costs were proposed to be ordered divided evenly;

the amounts were not in dispute. Her attorney closed the letter with the statement that

“Mr. Smith should be submitting his Order and child support calculations to the Court, as

well.”

On June 23, 2014, counsel for Thomas responded to Gina’s proposal, copying Gina’s

attorney with this correspondence. In Thomas’s letter to the trial court, his attorney noted

that the major dispute was the child support arrearage amount and current child support

obligation. Thomas’s attorney attached an edited version of Gina’s proposed precedent. The

attorney’s letter recited the following:

The concern with Ms. Foster’s child support calculation is that she seeks to
make things complicated. Ms. Foster wants to use the Gerdau vacation payments as
a means to increase Mr. Langston’s child support payments before his income was
limited to supplemental insurance and then went to zero. The problem with these
calculations is twofold. First, child support should not fluctuate on a week to week
basis; and Second, the reason Mr. Langston was receiving the larger sums was due to
the fact that he had accrued vacation time and was being paid for those days he would
never get to take because of his health and impending unemployment.
The easiest way to calculate the support obligation is as your Honor indicated
in chambers in Greenwood in the early spring. Mr. Langston’s support of $700 per
month for three (3) children should remain in place until Mr. Langston’s filing (on
September 24, 2013) for a downward modification. This filing for a downward
modification coincides directly with Mr. Langston’s dependence on supplemental
insurance alone. As of March 1, 2013, [sic] Mr. Langston had no income, not even
unemployment, and his support obligation should be set at a minimum, in hopes that
he will receive retroactive SSI benefits to eliminate any arrearage and assist with future
child support obligations for the two (2) remaining minor children.

Thomas attached his own calculation, starting with a calculated arrearage at the old child-

support rate, and adding child support at a reduced rate based on Thomas’s receipt of disability

insurance payments. Thomas’s attorney wrote that judges typically imputed $250 in net

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monthly income for those with no income, which translated into $110 per month in child

support for three children, lowered to $93 per month for two children. Thomas offered

figures of $6,760 in total past due child support as of June 1, 2014, and ongoing child support

due of $93 per month.

After reviewing the two proposed orders and supporting documentation, the trial court

selected the edited order submitted by Thomas for filing, which included the following

relevant findings:

(1) that Thomas had sufficiently proven that he suffers from histoplasmosis, a medical
condition that left him medically unable to work as a result of strokes, paralysis, and
seizures, leaving Thomas without earned income since March 2014;
(2) that child support should be adjusted to $110 per month for the three children from
and after that date;
(3) that child support was reduced to $93 per month due to one of the children having
attained the age of majority as of June 2014;
(4) that as of June 2014, there existed a child-support arrearage totaling $6,760;
(5) that due to Thomas’s medical conditions, it was unlikely that he would return to
work;
(6) that if Thomas qualified for and received social security disability with back pay,
then the arrearage would be paid from the back pay amount and future support would
be paid by disability withholding;
(7) that the parties were responsible for one-half each of the costs of orthodontic braces
for their son as well as other medical, dental, and prescription medication costs, but if
Thomas was unable to pay those expenses, the costs would be added to the child-
support arrearage and paid accordingly with any back-pay amounts.

This order also contained a last page, titled “Child Support Arrearage Calculation,” which

contained the following bullet points of information, taken directly from Thomas’s attorney’s

correspondence:

* As of May 1, 2013, Mr. Langston was in arrears in the amount of $900.00;
* Mr. Langston’s monthly child support payment was $700.00 per month with a one-
half abatement to $350 for June of 2013 for the six (6) weeks of summer visitation
with [the parties’ youngest son];

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* As of the filing of the Counterclaim for downward modification on September 24,
2013, Mr. Langston’s arrears was $4,050.00;[4]
* Judge Spears advised in chambers that he would modify from the date of filing of the
Counterclaim, thus beginning on October 1, 2013, Mr. Langston’s only income was
the $281.00 per week or $1,124.00 per month supplemental insurance payment. If
you look at the Family Support Chart for three children and a net monthly income of
$1,124.00, the monthly support payment is $476.00 per month;
* Mr. Langston received $1,124.00 per month from October of 2013 through
February of 2014 before he lost his job and his supplemental insurance. His arrears for
this period is $2,380.00;[5]
* The Judges in Sebastian County have traditionally looked to see if an individual is
eligible for unemployment benefits, in order to calculate child support for an individual
who is unemployed with no income. In this instance, Mr. Langston is medically
unable to work and thus is not eligible to apply for unemployment. In these instances,
the Courts have assigned a net $250.00 per month income amount to the individual
paying child support with no income;
* That means that for the months of March, April and May, Mr. Langston’s child
support payment would be $110.00 for three (3) children or a total of $330.00;
* Since [the oldest child] is now eighteen (18) and has graduated from High School,
Child Support can be adjusted downward to $93.00 per month on June 1, 2014;
* So, Mr. Langston’s total arrearage from May of 2013 through May of 2014 is
$6,670.00.

In July 2014, Gina filed a “Motion to Set Aside Agreed Order,” in which she argued

that the trial court erroneously made assumptions about Thomas’s inability to work, made an

incorrect calculation of past-due support, made assumptions about whether Thomas had

applied for social security disability and did not require him to apply for such benefits, and

failed to abide by the requirements of Administrative Order No. 10. At that point, Gina

4
Based on Gina’s attorney’s calculations, her arrearage figure at that time was lower,
such that Thomas’s arrearage figure was to her benefit as of the end of September.
5
Gina’s calculation of child support owed for this period is a few hundred dollars
more, when her November 8, 2013 weekly disability income figure is corrected.

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asked for a hearing. Gina noted that although titled an “agreed” order, it was not an agreed

order.

In August 2014, Thomas filed a response to Gina’s motion to set aside, in which he

contended that the parties had worked out most issues except that having to do with child

support. Thomas contended that each party provided the trial court with proposed orders on

child support for its consideration based on accompanying supportive materials, agreeing to

have the trial court decide the matter on the written letter briefs. Thomas asserted that Gina

did not ask for a hearing on those letter briefs and proposed precedents prior to the trial

court’s entry of the order on appeal.6 He conceded that the order was not technically

“agreed” but gave Gina most of the relief she requested.

The trial court denied the motion to set aside the order. A timely notice of appeal

followed, wherein Gina appealed the trial court’s June 2014 order and its denial of her motion

to set the June order aside. In her brief, Gina presents the following points on appeal:

1. Should child support be set on the non-custodial parent’s actual earnings and the
Arkansas Family Support Chart, per Administrative Order No. 10, or an arbitrary
amount without explanation for deviation?
2. Is Appellant entitled to due process, i.e., a hearing, so that evidence of income may
be properly presented to the Court before an Order is entered?
3. Is the Court allowed to presume disability of a party with no medical evidence in
the record, and make a reduction of child support based on that presumption?

6
Furthermore, Thomas asserted in his posttrial responsive pleading that since the entry
of the order, he had been approved for social security disability in July 2014 and granted
retroactive benefits. He argued that Gina would be receiving current child-support based on
this disability income source when she was willing to communicate with the governmental
agency, and he stated his readiness to pay a substantial amount toward arrearages. The issue
of the application of the social security disability benefits is not before our court in this appeal.

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4. Can child support payments and medical payments be delayed indefinitely, thus
requiring one parent to bear the burden of sole support, or is this against public policy?

Gina contends that the trial court clearly erred in setting Thomas’s child support

obligation and its calculation of arrearages. This is the salient issue on appeal. The remaining

points hold no merit, primarily because Gina consented, induced, or acquiesced to the trial

court’s ruling on those issues. See Colquitt v. Colquitt, 2013 Ark. App. 733, 431 S.W.3d 316.

Regarding her contention that she was denied due process, Gina waived any right to a hearing

by submitting, with consent of opposing counsel, proposed orders for the judge to sign

accompanied by supportive evidence upon which both parties relied, and by failing to request

a hearing until after the issues had been decided. Regarding her contention that Thomas’s

disability was erroneously presumed, Gina effectively conceded that Thomas was disabled and

entitled to a child-support reduction in her own proposed order, submitting a reduced figure

of imputed income assuming his inability to work. Gina’s argument about the delay in

recovering child support is not well taken because, again, even her own proposed precedent

suggested that she be granted a judgment for arrearages and have an additional method to

collect “if or when” Thomas was approved for disability. Any past due child support can be

reduced to judgment upon request. See McWhorter v. McWhorter, 2009 Ark. 458, 344 S.W.3d

64 (explaining the process of having the trial court reduce past due child support to a sum

certain for purposes of collection on the judgment).

The primary concern is whether the trial court’s order complies with Administrative

Order No. 10. Gina contends that the past-due child support calculation and the current

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child-support obligation both manifest clear error, failing to explain the calculations and an

alleged deviation from the Family Support Chart. We disagree.

We review child-support cases de novo on the record, but we will not reverse the trial

court’s findings of fact unless they are clearly erroneous. Stevenson v. Stevenson, 2011 Ark.

App. 552. As a rule, when the amount of child support is at issue, we will not reverse the

circuit court absent an abuse of discretion, but we give a trial court’s conclusions of law no

deference on appeal. Id.

Administrative Order No. 10 includes a family support chart indicating the amount of

support due depending upon the payor’s income, and a trial court’s order awarding child

support must recite the amount of support required by the chart and recite whether the trial

court deviated from that amount. Bass v. Bass, 2011 Ark. App. 753, 387 S.W.3d 218. It is

a rebuttable presumption that the amount of child support calculated pursuant to the chart is

the appropriate amount. Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991). If the court

deviates from the chart amount, it must include specific written findings stating why, after

consideration of all relevant factors including the best interests of the children, the chart

amount is unjust or inappropriate. Bass v. Bass, supra. Administrative Order No. 10 permits

the trial court to impute income under certain circumstances. Davie v. Office of Child Support

Enforcement, 349 Ark. 187, 76 S.W.3d 873 (2002). In Section III, subsection d. of

Administrative Order No. 10, it recites:

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

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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.

When the disability is not a matter of choice, however, the trial court is not required to

impute income under this subsection of Administrative Order No. 10. Davie, supra.

Determining whether Thomas was to be imputed any income at all, and if so, in what

amount, was a matter left to the discretion of the trial court. Byrd v. Byrd, 2012 Ark. App.

589. Here, the trial court appended an analysis of Thomas’s income for child support

purposes for the relevant months, recited the amount of disability benefits that would be

considered “income,” and applied the chart correctly to Thomas’s amount of income most

often received weekly from his disability insurance benefits payor.7 The trial court was not

required to match child support week-for-week but is given discretion to determine

appropriate child support income in a fact-intensive inquiry. Thereafter, the trial judge made

a finding of what his imputed income would be during his unemployability and calculated

current child support on that amount of imputed income. Stated another way, the issue is

not that the trial court deviated downward from the Family Support Chart; the issue is

whether the trial court was justified in using a lower imputed income due to Thomas’s health

and unemployment condition when applying the Family Support Chart. This was a matter

of the trial court weighing the evidence presented to it, and we hold that the trial court did

not abuse its discretion in calculating the imputed income. Thus, there was no requirement

7
Of the twenty-two weeks between October 1, 2013 and February 28, 2014, fifteen
of those weekly payments were between $281 and $293. Five of those weeks, Thomas
received less, between $0 and $241. Only two of those weekly payments were more.

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to explain a deviation from the Family Support Chart because no deviation took place.

We are not left with a distinct and firm conviction that a mistake was made in this

instance. See Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). Thus, we affirm.

KINARD and GLOVER, JJ., agree.

Foster Law Office, by: M. Shannon Foster, for appellant.

Smith, Cohen & Horan, PLC, by: Stepheen C. Smith and Jacob K. Wooley, for appellee.

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