Ritchey v. Frazier , 57 Ark. App. 92 ( 1997 )

Judith Rogers, Judge.

The appellant, Sheila Ritchey, appeals from an order denying her motion for an increase in child support which she had brought against appellee, Rick Frazier, her former husband. Appellant raises two issues for reversal of the chancellor’s decision.¹ She contends that the chancellor erred by refusing to increase child support at the conclusion of the hearing held on November 29, 1995, and that the chancellor erred by refusing to allow her to present evidence demonstrating appellee’s income at the time her motion for an increase was filed. We find no reversible error and affirm.

Our review of the record discloses that the parties were divorced in 1987. On January 27, 1994, an agreed order was entered, based upon the joint motion of the parties, reducing appellee’s child support obligation to $50 a week. On'August 23, 1994, appellant filed a motion to modify the agreed order based on the allegation that appellee’s income had increased since entry of the order. Appellee countered with a motion for a change of custody of their two children. Other motions, not pertinent to this appeal, were filed as well. All matters pending before the court were set down for a hearing on September 5, 1995. However, testimony was not concluded on that date and further hearings were held on November 29, 1995, and February 14, 1996. By order of March 27, 1996, the chancellor disposed of the various motions submitted, which included the denial of appellant’s motion requesting an increase in child support. This appeal followed.

The issues in this appeal arise from events which transpired at the hearings on November 29 and February 14. Near the end of the day of trial on November 29th, it was apparent that the hearing would run on to another day, and the chancellor expressed the desire to go forward with the proposed testimony of the children so as to avoid their having to appear at a later date. Appellant’s counsel then asked the chancellor for a ruling on the request for an increase in support, stating that the motion had been pending for more than a year and that he had elicited “the only testimony we have regarding that motion.” Appellee’s counsel moved for a directed verdict on the ground that appellant had failed to show a change in circumstances since no evidence had been presented as to appellee’s income at the time the agreed order was entered. In the following discussion, appellant’s counsel stated that he had not yet had the opportunity to elicit much testimony, but he noted that the chart amount based on appellee’s current income was twice the amount reflected in the agreed order. The chancellor disagreed with counsel’s representation that he had not had the chance to question appellee, recalling that she had hinted to counsel during his cross-examination of appellee that evidence of appellee’s income at the time of the previous order was needed in order for her to determine whether circumstances had changed. The chancellor did not make a definitive ruling on the motion; however, she held counsel to his previous statement that all the testimony he intended to introduce had been presented and ruled that the record was closed on the issue of support. At the subsequent hearing on February 14, the chancellor refused to allow further evidence on the subject, even refusing the appellant the opportunity to make an offer of proof, which consisted of a verification from appellee’s employer showing appellee’s income as of August 1994.

As her first point, appellant contends that the chancellor erred by not granting her motion for an increase in support at the hearing on November 29. Appellant argues that it was shown that appellee presently earned $405 a week, which results in a child-support payment of $100 a week according to the applicable family support chart. She argues that a sufficient change in circumstances was demonstrated since the current chart amount is twice the amount reflected in the agreed order. Appellant is mistaken in the belief that this evidence alone demonstrates a change in circumstances.

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. Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993). In Ross v. Ross, 29 Ark. App. 64, 776 S.W.2d 834 (1989), we held that a child-support obligation cannot be modified based solely on the current chart amount without there also being proof of a change in circumstances. The change in circumstances asserted by appellant was that appellee’s income had increased since the entry of the agreed order. However, appellant failed to introduce evidence of appellee’s income when the agreed order was entered, or perhaps counsel failed to comprehend the chancellor’s prompting that such evidence was necessary in this case.

A chancellor’s determination as to whether there are sufficient changed circumstances to warrant an increase in child support is a finding of fact, and this finding will not be reversed unless it is clearly erroneous. Roland v. Roland, supra. Since the record contains no evidence demonstrating appellee’s income as of the time of the agreed order, we cannot say that the chancellor’s decision that appellant failed to show that appellee’s income had increased since the entry of that order is clearly erroneous. We note that appellant’s argument might have proven successful if it had been shown that the previous amount of support had been set in accordance with the child-support chart. However, the amount contained in the order was based upon the agreement of the parties, and there was testimony that it was not based on appellee’s income in reference to the support chart.

Appellant next argues that the chancellor erred in re&sing to allow her to present proof of appellee’s income as of August 1994, the date the motion for an increase in support was filed, or to allow her to proffer that evidence. While we may look with disfavor on the actions of the chancellor, particularly since the interests of minors are involved, we can discern no prejudice to appellant flowing from the chancellor’s rulings. The only evidence appellant sought to introduce was evidence of appellee’s income at the time the motion for an increase was filed. Since appellant failed to meet her initial burden of showing a change in circumstances, proof of appellee’s income at that point in time cannot possibly affect the outcome of this case, and is thus of no consequence. We will not reverse in the absence of prejudice. Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994). Therefore, we cannot say that reversible error occurred.

Affirmed.

Pittman, Cooper, Bird, and Stroud, JJ., agree. Meads, J., dissents.

1 Appellant raised a third issue concerning the chancellor’s denial of an award of attorney’s fees, but that issue was later abandoned by appellant in her response to a motion filed by appellee in this appeal.