Hall v. Hall , 429 S.W.3d 219 ( 2013 )

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SUPREME COURT OF ARKANSAS
No. CV-12-89
TAMMYE HALL Opinion Delivered September 19, 2013
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. DR-2010-407]
JUSTIN HALL HONORABLE VANN SMITH, JUDGE
APPELLEE
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
Appellant Tammye Hall appeals from the circuit court’s order, which among other
things, denied her motion to increase child support due from appellee Justin Hall.1 While
Justin had cross-appealed from the circuit court’s order, we dismissed his cross-appeal on
Tammye’s motion, holding that Justin’s partial payment of the judgment against him
constituted a voluntary acquiescence to the judgment. See Hall v. Hall, 2012 Ark. 429. As
her sole point on appeal, Tammye asserts that the circuit court erred in denying her motion
to increase child support. We affirm the circuit court’s order.
The parties were divorced on March 1, 2010, by way of a consent divorce decree that
included a property-settlement agreement. Pursuant to that agreement, Justin was to pay
Tammye $1485 per month based on his weekly net-take-home salary from Falcon Jet, his
1
The circuit court’s order also addressed Tammye’s multiple motions for contempt and
her motion for sanctions, as well as Justin’s counterclaim and his countermotion to reduce
child support and alimony or for joint custody.
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employer. In addition, Justin agreed to pay one-half of the private-school tuition for the
couple’s two minor children, but not less than $715 per month. In exchange for the tuition
arrangement, Tammye agreed not to consider Justin’s income from his personal business, Hall
Engineering, in setting his child-support obligation.
On May 24, 2011, Tammye filed a motion to increase child support, in which she
asserted that there had been a material increase in Justin’s Hall Engineering income or
alternatively that the original child-support award had been based on figures fraudulently
provided by Justin. She further contended that since entry of the divorce decree, one of the
couple’s children required extensive therapy sessions, enrollment into a different school, and
extra parental attention due to a diagnosis of Asperger’s Syndrome. Justin responded that
Tammye was exaggerating the child’s needs and disputed any increase in his income;
therefore, he maintained, her motion should be denied.
Following several hearings on the myriad motions filed by both Tammye and Justin,
the circuit court entered its order disposing of the motions on October 18, 2011. In it, the
circuit court noted Justin’s admission in open court that he “hid marital assets from [Tammye]
and purposely misrepresented his true financial status from both [her] and the Court.” The
court found that Justin had “willfully concealed marital funds from [Tammye] in order to
decrease the amount of money to be divided” and that Justin’s actions were “egregious,
calculated, and a direct affront” to the court and to Tammye. The court further observed that
Justin had devised a plan to ensure that Tammye would not only be denied her legal right to
her portion of the marital funds, but also that it would be practically impossible to discover
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his fraudulent concealment.
The circuit court then outlined multiple bank accounts, which Justin had used to hide
marital assets. Many of the accounts contained deposits from checks made payable to Justin
or to Hall Engineering that Justin held for deposit until after December 21, 2009, the date the
parties’ assets were to be divided. Ultimately, the circuit court awarded Tammye a total of
$125,206.50, plus $37,500 in attorney’s fees and $5,985.34 in costs, plus interest at six percent.
With regard to child support, the circuit court denied Tammye’s motion and found that,
while it had been convincingly demonstrated to the court that Justin had concealed “at least
$125,000.00 and possibly more, that is attributable as income to sources other than Falcon
Jet,” Tammye was aware of the difficulty in determining Justin’s Hall Engineering income at
the time of the divorce decree. The circuit court found that it was unable to determine if the
amounts of money concealed by Justin were regular sources of income or one-time payments;
it further noted that the funds were derived in at least 2009 and 2010. Although the circuit
court denied Tammye’s motion, it observed that it would allow Tammye to pursue her claim
at a later time upon the proper motion.
Upon the filing of a motion for clarification and ruling by Tammye, the circuit court
issued an order disposing of the motion, wherein it amended the judgment due Tammye to
$124,698.50. Tammye filed timely notices of appeal from both orders and now brings the
instant appeal.
For her sole point on appeal, Tammye argues that the circuit court erred in denying
her motion to increase child support. She contends that, while the circuit court found itself
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unable to determine whether the amounts of money concealed were regular sources of
income or one-time payments, such a distinction is irrelevant, as all sources of a payor’s
income are to be included when determining the amount of child support to be paid. She
asserts that she proved a material change in Justin’s income, and, therefore, the circuit court
was required to modify child support based on that proof. The circuit court’s failure to do
so, she maintains, constitutes error. Justin responds that there was no material change in
circumstances warranting an increase in Tammye’s child-support award, because while hidden
assets were discovered, ongoing income was not. For this reason, he concludes, the circuit
court did not err.
Our standard of review for an appeal from a child-support order is de novo on the
record, and we will not reverse a finding of fact by the circuit court unless it is clearly
erroneous. See Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005). In reviewing a circuit
court’s findings, 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. See id. As a
rule, when the amount of child support is at issue, we will not reverse the circuit court absent
an abuse of discretion. See id. However, a circuit court’s conclusion of law is given no
deference on appeal. See id.
It is axiomatic that a change in circumstances must be shown before a court can modify
an order for child support. See Hill v. Kelly, 368 Ark. 200, 243 S.W.3d 886 (2006). In
addition, the party seeking modification has the burden of showing a change in circumstances.
See id. In determining whether there has been a change in circumstances warranting
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adjustment in support, the court should consider remarriage of the parties, a minor reaching
majority, change in the income and financial conditions of the parties, relocation, change in
custody, debts of the parties, financial conditions of the parties and families, ability to meet
current and future obligations, and the child-support chart. See id. We have made it clear
that a finding that a material change in circumstances has occurred is subject to a
clearly-erroneous standard of review. See id.
In the instant case, the circuit court specifically stated that it “cannot determine if the
amounts of money that [Justin] concealed from [Tammye] are regular sources of income or
one time payments.” This was clearly a misstatement of the law, as this court has not
previously drawn a distinction between ongoing income and one-time income. We have
defined “income” as “any form of payment, periodic or otherwise, due to an individual,
regardless of source, including wages, salaries, commissions, bonuses, workers’ compensation,
disability, payments pursuant to a pension or retirement program, and interest less” certain
enumerated deductions. Ark. Sup. Ct. Admin. Order No. 10(II)(a) (2011) (emphasis added).
This definition is one that is “intentionally broad and designed to encompass the widest range
of sources consistent with this State’s policy to interpret ‘income’ broadly for the benefit of
the child.” Ford v. Ford, 347 Ark. 485, 495, 65 S.W.3d 432, 439 (2002). See also Ark. Sup.
Ct. Admin. Order No. 10(II)(a)(4). To that end, this court has previously recognized
nonperiodic monetary judgments, monetary gifts, certificates of deposit, retirement payments,
as well as gambling winnings, as income for purposes of determining child support. See, e.g.,
Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005); Ford, supra; McWhorter v. McWhorter,
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346 Ark. 475, 58 S.W.3d 840 (2001).
That being said, it is clear to this court that the circuit court’s erroneous statement of
the law was in no way the sole basis for the circuit court’s denial of Tammye’s motion. The
circuit court also found that Tammye was aware of the difficulty in determining Justin’s Hall
Engineering income at the time of the property-settlement agreement and further found that
the discovered funds were derived in at least 2009 and 2010.2 Because it was for all of these
reasons that the circuit court denied any increase “in child support of income from sources
other than Falcon Jet,” we cannot say, based on the record before us, that the circuit court’s
denial of the motion was incorrect.
Affirmed.
CORBIN, BAKER, and GOODSON, JJ., dissent.
COURTNEY HUDSON GOODSON, Justice, dissenting. In this case, the majority
declares that the circuit court made an error of law but nonetheless affirms, apparently holding
that the error was harmless because the court gave additional reasons for denying the petition
to increase child support that Tammye does not challenge on appeal. Despite the majority’s
assertion that Tammye does not contest all of the circuit court’s findings, Tammye does
present argument challenging the entirety of the court’s ruling, and none of the reasons
offered by the circuit court to deny relief warrant an affirmance of the decision. In my view,
this court should reverse and remand for the circuit court to consider the evidence with a
renewed understanding of the law and to determine whether the amount of child support
2
Tammye challenges neither finding.
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should be modified. Therefore, I respectfully dissent.
The record reflects that, two months after the entry of the consent decree, Tammye
filed the first of four motions for contempt seeking to enforce the terms of the decree. During
the course of discovery, she uncovered Justin’s fraudulent scheme to hide assets as well as
income generated from Hall Engineering. In its order, the circuit court made extensive
findings detailing the extent of Justin’s admitted fraud that was revealed during the course of
several hearings and a three-day trial.1 At least eleven undisclosed bank accounts were
discovered. Justin hid money in the reserve account of the law firm of his father, John Wesley
Hall, Jr., which had prompted the circuit court to appoint a special master.2 Justin also
manipulated his girlfriend into opening yet another account in which to hide money. In
addition, he withheld checks for deposit until after the operative date of the parties’
agreement, December 21, 2009.
While in the midst of exposing Justin’s deceit, Tammye also moved for an increase in
child support. In this motion, she alleged that there had been a material increase in Justin’s
income from Hall Engineering. Alternatively, she asserted that the agreed-upon amount of
support was based on fraudulent figures provided by Justin.
On the issue of child support, Tammye testified that, in agreeing to forgo consideration
of Justin’s income from Hall Engineering in setting child support, Justin had provided a spread
sheet reflecting a gross income of $30,000 earned in 2008. She said that Justin told her that
1
Upon questioning by the circuit court, Justin openly declared that he “did have to
play games to hide money from her, but it’s because she was spending it like mad.”
2
The circuit court found that Justin’s father did not participate in any wrongdoing.
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this amount did not take into account his expenses and that Justin represented that the
business did not make any money. Tammye stated that the $30,000 figure was completely
fraudulent and that the bank records now show a gross income of $137,000 for 2008.
Tammye also testified that in 2009 the business had gross receipts of $151,000. From that
amount, she deducted the expenses of $29,000 that Justin had claimed on his tax return to
arrive at a net income of $122,000 for 2009. Tammye further testified that in 2010 she
located gross deposits for Hall Engineering in the amount of $283,000. Again, she deducted
Justin’s claimed expenses of $52,031 to reveal a net income of $230,969 for 2010. In addition
to her testimony, Tammye offered an exhibit to tally the amount of child support using the
above-mentioned figures. Consistent with Arkansas Supreme Court Administrative Order
No. 10(III)(c), she averaged the net income for 2009 and 2010 to arrive at a child-support
amount of $3,021.50 per month based on income from Hall Engineering.
In denying Tammye’s request for an increase in support, the circuit court found as
follows:
90. The Plaintiff argues that she is entitled to an increase in child support based upon
Defendant’s income from Hall Engineering and his other businesses, excluding his
Falcon Jet income. The Plaintiff contends that had she known the Defendant’s
income was so great, she would not have agreed to accept $715 per month as child
support which is used for the children’s tuition.
91. It appears that the Defendant’s income from Hall Engineering and his other
businesses are substantial. In fact, it has been demonstrated to the Court in a
convincing fashion that the Defendant concealed at least $125,000 and possibly more,
that is attributable as income to sources other than Falcon Jet. On the other hand,
however, the Plaintiff was aware of the difficulty in determining the income of Hall
Engineering when the Decree was entered into in 2010. The Court cannot
determine if the amount of money that the Defendant concealed from the Plaintiff
are regular sources of income or one time payments, and notes that the funds were
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derived in at least 2009 and 2010.
Tammye argues on appeal that the circuit court erred in denying her motion for an
increase in child support. In making this argument, she contends that the circuit court erred
as a matter of law in ruling that whether the funds were “regular sources of income or one
time payments” has some bearing on the calculation of child support. Tammye’s argument
has merit, and the majority agrees, citing a number of our previous decisions and holding that
this court has not drawn a distinction between ongoing income and one-time income for
purposes of calculating income in setting child support.
Despite this clear error, the majority affirms the circuit court’s decision because the
court gave two other reasons for denying the motion. These findings are that Tammye was
aware of the difficulty in determining Justin’s income from Hall Engineering and that some
of the discovered funds were derived in 2009 and 2010. The majority asserts that Tammye
does not challenge those findings. However, Tammye’s argument does encompass those
findings, and she has shown that these findings cannot withstand scrutiny. Citing Rockefellar
v. Rockefellar, 335 Ark. 145, 980 S.W.2d 255 (1998) (Imber, J., concurring) (citing Lively v.
Lively, 222 Ark. 501, 261 S.W.2d 409 (1953)), she correctly points out that her agreement
to forgo consideration of Justin’s income from Hall Engineering is not binding on the circuit
court because a court always has the authority to modify child support, even if the parties
have entered into an agreement. In arguing for reversal, Tammye also relies heavily on her
testimony and the evidence she produced to show that Justin’s income from Hall
Engineering doubled between 2009 and 2010. Although the circuit court deemed it
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irrelevant that Tammye’s proof included income earned in 2009 and 2010, the hearing in this
case took place in 2011, and the operative date of the parties’ agreement was December
2009. Obviously, it was incumbent on Tammye to present evidence of Justin’s earnings in
2009 to establish his income as of the date of the property-settlement agreement and to
submit evidence of his income in 2010 in an effort to show a change in circumstances.
The record in this case is voluminous, spanning several hearings and a three-day trial.
It took a Herculean effort to unravel Justin’s deceit and to produce an accounting of Justin’s
income. Tammye has met her burden on appeal to demonstrate the circuit court’s error, and
justice demands that this matter be put to rest. Given the circuit court’s error, this court
should reverse and remand for the circuit court to consider the evidence, to ascertain Justin’s
income, and to determine whether there has been a material change in circumstances to
justify modifying the amount of support.
CORBIN and BAKER , JJ., join.
Cullen & Co., PLLC, by: Tim J. Cullen, for appellant.
James Law Firm, by: William O. “Bill” James, Jr. and Lee D. Short, for appellee.
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