Baker v. Office of Child Support Enf't

Cite as 2017 Ark. App. 173

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-613

Opinion Delivered March 15, 2017
LEE BAKER
APPELLANT APPEAL FROM THE PIKE COUNTY
CIRCUIT COURT
V. [NO. 55DR-02-54]

OFFICE OF CHILD SUPPORT HONORABLE TOM COOPER,
ENFORCEMENT JUDGE
APPELLEE
AFFIRMED

N. MARK KLAPPENBACH, Judge

This appeal concerns a request to modify a child-support obligation. Appellant Lee

Baker appeals the Pike County Circuit Court’s order filed in May 2016 that denied his

“Request for Review and Adjustment” of his child-support arrearages and current child-

support obligation.1 Appellant filed his motion in March 2016, contending that there had

been a material change in circumstances that warranted a change or abatement of child

support. Appellant asserted that he had been incarcerated since November 2013, that he had

no means to pay child support, that one child had reached the age of majority and graduated

from high school, and that a reduction of his past and future child-support obligations was

appropriate. The trial court denied this motion, leading to the present appeal.2 We affirm.

1
Appellant also asked for appointment of counsel in a separate motion, which was
denied in the May 2016 order, but this is not an issue on appeal.
2
Appellant’s notice of appeal, filed in May 2016, also purports to appeal an earlier
order filed in December 2015 that denied appellant’s August 2014 petition to hold child
Cite as 2017 Ark. App. 173

Our standard of review is de novo on the record, and we will not reverse unless the

trial court’s findings are clearly erroneous. Hall v. Hall, 2013 Ark. 330, 429 S.W.3d 219;

Brown v. Brown, 2014 Ark. App. 455, 440 S.W.3d 361. A finding is clearly erroneous when

the reviewing court, on the entire evidence, is left with the definite and firm conviction that

a mistake has been committed. Hill v. Kelly, 368 Ark. 200, 243 S.W.3d 886 (2006). As a rule,

when the amount of child support is at issue, we will not reverse the circuit court absent an

abuse of discretion. Troutman v. Troutman, 2016 Ark. App. 70, 482 S.W.3d 365. A change

in circumstances must be shown before a court can modify an order regarding child support,

and the party seeking modification has the burden of showing a change in circumstances. Hunt

v. Hunt, 40 Ark. App. 166, 842 S.W.2d 470 (1992). A circuit court’s determination as to

whether there are sufficient changed circumstances to warrant a modification is a finding of

fact, and we will not reverse this finding unless it is clearly erroneous. Baber v. Baber, 2011

Ark. 40, 378 S.W.3d 699.

We have guidance on our state’s law when the request to abate child support is based

on an obligor’s incarceration. See Reid v. Reid, 57 Ark. App. 289, 944 S.W.2d 559 (1997).

In Reid, the obligor parent contended that his child support should be abated during the

support in abeyance. The notice of appeal was untimely to appeal the December 2015 order;
thus we have no appellate jurisdiction to consider the December 2015 order. Ark. R. App.
P.-Civ. 4(a) (2015); In re Estate of Stinnett, 2011 Ark. 278, 383 S.W.3d 357.
Appellant filed a motion for reconsideration of the December 2015 order, which was
denied in January 2016. Appellant did not designate the January 2016 order as an order on
appeal, but even if appellant had designated that order in his notice of appeal, it would have
been untimely, meaning that we would lack appellate jurisdiction to consider it.

2
Cite as 2017 Ark. App. 173

period of his incarceration, but the trial court denied the request. Our court recited the

longstanding maxim that equity will not intervene on behalf of a party whose conduct in

connection with the same matter has been unconscientious or unjust, otherwise known as the

clean-hands doctrine. Id. (citing Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995);

Marshall v. Marshall, 227 Ark. 582, 300 S.W.2d 933 (1957)). The purpose of invoking the

clean-hands doctrine is to protect the interest of the public on grounds of public policy and

to preserve the integrity of the court, and it is within the trial court’s discretion to determine

whether the interests of equity and justice require the application of the doctrine. Id. (citing

Grable v. Grable, 307 Ark. 410, 821 S.W.2d 16 (1991)). Although unemployment or

diminution of earnings is a common ground for modification, a petition for modification will

be denied if the change in financial condition is due to the fault, voluntary wastage, or

dissipation of one’s talents or assets. Id. The Reid court reasoned that a child-support

obligation should not be modified where the means with which to pay were reduced or

eliminated by criminal activity, deciding that equity will not come to the aid of one who of

his or her own volition engages in criminal behavior and suffers the consequences that affect

the ability to pay child support. Id. Moreover, as between appellant and his children, the

interest of the children must prevail. Id.; Newton v. State Office of Child Support Enf’t, 2013

Ark. App. 53 (affirming where the trial court, citing Reid, denied Newton’s petition seeking

to abate his child support, finding that the incarceration was caused by his own fault and thus

Newton came to court with unclean hands).

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Cite as 2017 Ark. App. 173

With these legal parameters, we examine the chronology of events and proceedings

in the trial court. In August 2014, appellant filed a “Petition to Hold Support in Abeyance,”

asserting that he was taken into the Arkansas Department of Correction in July 2014, that he

was unemployed, and that he was unable to pay child support. The Office of Child Support

Enforcement (OCSE) objected to appellant’s petition and raised the defense of unclean hands;

OCSE also asserted that appellant had not established that he could not work under some type

of work-release program. Appellant filed a response to OCSE in July 2015, asserting that he

had been sentenced to six years in prison with two years suspended; that he was unable to

work due to his sex-offender status; and that he should be afforded the relief he requested.

After a brief hearing, the trial court entered an order in December 2015 denying appellant’s

petition. Appellant did not file a timely notice of appeal from this December 2015 order. In

January 2016, appellant filed a motion to reconsider, which the trial court denied, also in

January 2016. Appellant did not file a notice of appeal from the January 2016 order.

In March 2016, appellant filed a “Request for Review and Adjustment,” asserting that

there “has been a significant change since the last time my child support was established or

reviewed.” Appellant asserted that he had been incarcerated since November 2013 with no

means to pay child support; that one child had turned eighteen and graduated from high

school;3 and that the trial court should conduct a review and “if appropriate make adjustments

3
We note that according to Arkansas Code Annotated section 9-14-237(a)(1) (Repl.
2015), unless a court order for child support specifically extends child support after these
circumstances, an obligor’s duty to pay child support for a child shall automatically terminate

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to arrearages and monthly amount of support.” OCSE filed a response in opposition to

appellant’s request, noting that the trial court had already denied his request in December

2015 and that no changed circumstances had occurred since that time. OCSE also reasserted

the defense of unclean hands and the argument that appellant had not established his inability

to work pursuant to a work-release-type program. The trial court entered an order on May

12, 2016, denying appellant’s request. Appellant filed a timely notice of appeal from the May

2016 order.

In appellant’s pro se appeal brief, he argues that he earlier provided proof that he was

in prison and that he was ineligible for a work-release program. Appellant cites Allen v. Allen,

82 Ark. App. 42, 110 S.W.3d 772 (2003), for the proposition that, although incarceration

does not abate an obligation to pay child support, it can support a modification down to the

minimum amount of support required of an unemployed person ($25 per week). Appellant

fails to demonstrate reversible error.

Here, the trial court had denied a request to reduce or abate child support in December

2015 based on the same evidence that appellant contended had manifested a change in

circumstances in March 2016. Appellant did not timely appeal from the December 2015

order, which became a final order from which any change in circumstances would be

by operation of law when the child reaches eighteen years of age unless the child is still
attending high school; or, if the child is still attending high school, upon the child’s high
school graduation or the end of the school year after the child reaches nineteen years of age,
whichever is earlier.

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measured. Appellant cannot show clear error in the trial court’s denial of the same request

a mere three months later.4 Moreover, while an inability to earn can support a trial court’s

finding to reduce child-support obligations, the trial court is not required to reduce those

obligations particularly where the obligor is deemed at fault for causing his own inability to

work. See Reid, supra.

Because appellant does not argue the issue of his child’s turning the age of eighteen and

graduating from high school in the argument section of his opening appellate brief, we do not

address that issue here. Appellant mentions this particular argument in his reply brief, but we

do not consider arguments raised for the first time in a reply brief. Orintas v. Point Lookout

Prop. Owners Ass’n Bd. of Dirs., 2015 Ark. App. 648, 476 S.W.3d 174. The reasoning behind

this rule is that an appellee must not be deprived of an opportunity to respond to an

appellant’s arguments for reversal. Abdin v. Abdin, 94 Ark. App. 12, 223 S.W.3d 60 (2006).

For the foregoing reasons, we affirm.

Affirmed.

ABRAMSON and VAUGHT, JJ., agree.

Lee Baker, pro se appellant.

Greg L. Mitchell, for appellee.

4
In the most recent petition, appellant asserted that he had been in jail since
November 2013. In the earlier petition, appellant asserted that he had been in prison since
July 2014. The exact dates of his imprisonment, however, are not material to this appeal.

6