Opinion
05-1090
Opinion Delivered September 21, 2006
An Appeal from the Circuit Court of Faulkner County, Arkansas, No. DR-03-276, Honorable Michael A. Maggio, Circuit Judge,Reversed and Remanded on Direct Appeal; Affirmed on Cross-appeal.
Appellant Patricia Suzanne Mathews (Suzanne) married appellee Dr. John Steven Mathews (Steven) on July 23, 1988. Suzanne and Steven had one son, John Steven Mathews II (John), who was born on February 18, 1990. Suzanne and Steven divorced in 1991; at that time, they were living in Missouri. The divorce decree, entered in Boone County, Missouri, awarded Suzanne custody of the couple's son, and Steven was ordered to pay $655 per month in child support. In 1995, the Missouri court increased the child support award to $1,276 per month. In 1992, Steven married April Mathews, and the couple had a son, Zachary, in 1997; however, Steven and April divorced in Garland County, Arkansas, on February 14, 2003. April was awarded custody of Zachary, and Steven, who had graduated from medical school and become a gastroenterologist in the intervening years, was ordered to pay $2,900 per month in child support for Zachary.
On April 8, 2003, Suzanne, who at some point moved from Missouri to Faulkner County, Arkansas, filed a petition to register the Missouri divorce decree in Faulkner County. In addition, on April 23, 2003, Suzanne filed a petition in the Faulkner County court to modify the Missouri child support award. In her petition, Suzanne noted that, since the Missouri decree and child support award had been entered, there had been a change in circumstances in that Steven had completed medical school and had become a physician in Garland County, Arkansas. In essence, Suzanne asserted that the child support amount should be increased "commensurate with [Steven's] increased income."
Steven responded to Suzanne's petitions with a motion to dismiss or to transfer, alleging that Suzanne's petition to register the Missouri decree did not comply with Ark. Code Ann. § 9-17-601 (Repl. 2002). In addition, Steven alleged that venue of the petition was in Garland County, not Faulkner County. On March 31, 2004, the Faulkner County court entered an order finding that it had jurisdiction and venue of the case. It further concluded that Suzanne had complied with § 9-17-601 by properly filing the parties' Missouri divorce decree. Accordingly, the trial court granted Suzanne's petition to register the Missouri decree and denied Steven's motion to dismiss.
The record next reflects that the trial court scheduled a hearing on April 26, 2004, but Suzanne's attorney filed a request for a continuance. The parties, attorneys, and witnesses were present, so the trial court instructed the parties to take the opportunity to address "some of the basic questions" involved in the case. Steven and his accountant, Shelley McCormick Delarosa, offered testimony bearing on Steven's income and the amount of child support he should pay under Arkansas's child-support chart. See Administrative Order No. 10. In addition, Steven renewed his arguments that venue was not in Faulkner County and that Suzanne had not properly petitioned to have the Missouri decree registered in Arkansas, but the trial court again rejected his contentions.
On August 11, 2004, the trial court entered a temporary order in which it found that Suzanne had established a significant change in circumstances sufficient to grant her petition to modify child support. Accordingly, the court raised Steven's child-support payment to the amount of $2,900 per month, the same amount Steven was paying in child support for Zachary. The court ordered that the "increased amount of child support [was] to begin with the entry of this order." The case was then set for a final hearing on February 7, 2005. At that hearing, Steven renewed his prior motions to dismiss, alleging once again that venue was improper in Faulkner County and that the trial court had erred in finding that Suzanne had properly filed the Missouri decree for registration in Arkansas. The trial court once more rejected Steven's arguments.
After the trial court's rulings on these issues, Steven and his accountant, Marla Lammers, testified regarding Steven's salary and the amount of child support Steven should be required to pay for John. At the end of the hearing, the trial court concluded that, based on the evidence presented, Steven's child support obligation should be $1,850 per month. The court further held that the payments of $1,850 per month should begin on March 1, 2005; however, the court denied Steven's request for an adjustment or credit for the $2,900 per month Steven had been paying since the trial court's August 11, 2004, temporary order.
The trial court's written order setting child support at $1,850 per month was entered on March 15, 2005. Suzanne filed a timely notice of appeal on April 12, 2005, and Steven filed a timely notice of cross-appeal on April 20, 2005.
We address the issues raised in Steven's cross-appeal first, for if his arguments are correct, this case would likely have to be dismissed. In his first point on cross-appeal, Steven contends that the trial court erred in failing to dismiss this action on the grounds that venue was improper in Faulkner County. Steven, a resident of Garland County, argues that venue in this matter should have been governed by Ark. Code Ann. § 16-60-116(a) (Repl. 2005), which provides that, "[e]very other action may be brought in any county in which the defendant . . . resides or is summoned." Steven maintains that, because no Arkansas statute specifically establishes a venue where the Missouri judgment must be filed in order to seek and enforce an increase in child support, Suzanne was required, under § 16-60-116(a), to file her action where Steven resides or is summoned, which in this case is Garland County.
However, our court had made it clear that we will not elevate the right of a defendant to be tried "at home" except in instances in which our statutes, as interpreted in our precedents, permit a trial elsewhere. See Steve Standridge Ins. Co., Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995) (citing Prairie Implement Co. v. Circuit Court of Prairie County, 311 Ark. 200, 844 S.W.2d 299 (1992). Although Steven argues otherwise, Arkansas has a venue statute, Ark. Code Ann. § 9-12-303 (Repl. 2002), which provides that "[t]he proceedings shall be in the county where the complainant resides unless the complainant is a nonresident of the State of Arkansas and the defendant is a resident of this state, in which case the proceedings shall be in the county where the defendant resides[.]" This statute fixes venue in this case and allows Suzanne, as the plaintiff, to bring her action where she resides — in Faulkner County. While both Suzanne and Steven were residents of Missouri at the time of their divorce and a post-divorce hearing at which John's child support was increased, they both were (and still are) residents of Arkansas when this present litigation was filed.
Although Steven suggests that § 9-12-303 governs only divorce and annulment actions, Subchapter 3 of Title 9, Chapter 12, dealing with actions for divorce or alimony, further provides for the enforcement of divorce decrees that provide for child support, as well as modification of that child support. See Ark. Code Ann. §§ 9-12-312 and 9-12-314 (Repl. 2002). Moreover, Ark. Code Ann. § 9-12-320 (Repl. 2002), which governs proceedings subsequent to a divorce decree, provides in relevant part that, "[i]n cases where children are involved and a justification for transfer of the case has been made, there shall be an initial presumption for transfer of the case to the county of residence of the custodial parent." § 9-12-320(a)(2)(C) (Repl. 2002) (emphasis added). Although this case involves a petition to modify a child-support award, it is nonetheless obviously a proceeding subsequent to a divorce decree. Therefore, venue in this case is properly in the county of the residence of the custodial parent — Suzanne, who lives in Faulkner County.
Next, Steven argues that the trial court should have granted his motion to dismiss, which was based upon his contention that Suzanne had not complied with the procedures for registering a foreign decree. Those procedures are set forth in the Uniform Interstate Family Support Act, codified in Arkansas at Ark. Code Ann. § 9-17-601 et seq. (Repl. 2002). Steven maintains that, because Suzanne did not specifically follow the procedures set forth in Ark. Code Ann. § 9-17-602 (Repl. 2002), the circuit court should have dismissed her petition to modify the child-support award.
Section 9-17-602 provides that "[a] support order . . . of another state may be registered in this state by sending [certain specific] documents and information to the appropriate circuit court in this state[.]"
Before addressing this argument, it is important to note that, while the original decree and support order were entered in Missouri, neither Steven, Suzanne, nor their child presently resides in that state. Thus, while jurisdiction of this case was originally in Missouri, all of the interested parties now reside in Arkansas, and we must address the jurisdiction of this state's courts. The Comments to the Uniform Interstate Family Support Act make it clear that, "[o]nce every individual party and the child leave the issuing state, the continuing, exclusive jurisdiction of the [ issuing] tribunal terminates, although the order remains in effect and enforceable until it is modified." Comment to Ark. Code Ann. § 9-17-611 (Repl. 2005) (emphasis added). Moreover, the Comments note that, "[i]f both parties have left the issuing state and now reside in the same state, . . . [s]uch a fact situation does not present an interstate matter and UIFSA does not apply. Rather, the issuing state has lost its continuing exclusive jurisdiction and the forum state, as the residence of both parties, should apply local law without regard to the interstate Act." Id. (emphasis added). See also Groseth v. Groseth, 257 Neb. 525, 600 N.W.2d 159 (1999); Clark v. Clark, 714 A.2d 427 (Pa.Super. 1998).
It was on this issue that the court of appeals certified this appeal to our court. See Ark. Sup. Ct. R. 1-2(b)(1), (4), and (5). Specifically, the court of appeals noted that, while neither party addresses the jurisdictional issue, the question of the applicability of the Uniform Interstate Family Support Act must be resolved before determining whether venue and jurisdiction are proper in the Faulkner County Circuit Court.
Given the fact that Steven, Suzanne, and John now all reside in Arkansas, the provisions of the Uniform Interstate Family Support Act are simply inapplicable. Accordingly, we look to the Uniform Enforcement of Foreign Judgments Act, codified at Ark. Code Ann. § 16-66-601 et seq. (Repl. 2005). Arkansas Code Annotated § 16-66-602 (Repl. 2005) provides for the filing of foreign judgments as follows:
A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state may be filed in the office of the clerk of any court of this state having jurisdiction of such an action. The clerk shall treat the foreign judgment in the same manner as a judgment of a court in this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a court of this state and may be enforced or satisfied in like manner.
On April 8, 2003, Suzanne initiated this litigation by filing a petition to register the Missouri divorce decree for purposes of enforcement and modification. A copy of the Missouri decree was attached to her petition. Thus, when Suzanne filed the copy of the Missouri decree with the Faulkner County court, the court was required to treat that judgment "in the same manner as a judgment of a court in this state." Because UIFSA does not apply, and because Suzanne properly filed the Missouri decree in Faulkner County when she filed her petition to modify the child support order, the trial court did not err in denying Steven's motion to dismiss.
We acknowledge that this argument was not raised to the trial court, nor did the trial court consider whether its ruling should have been premised on UIFSA or the Uniform Enforcement of Foreign Judgments Act. However, the question goes to the jurisdiction of the courts of this state, and we therefore address it sua sponte.
Finally, we turn to the merits of Suzanne's direct appeal. Suzanne challenges several aspects of the trial court's ruling: she contends that the trial court's order of March 15, 2005, did not contain the court's determination of Steven's income, recite the amount of support required by the child-support guidelines, or recite whether the court deviated from the family support chart as required by this court's Administrative Order No. 10. In addition, Suzanne asserts that the trial court erred by adopting a summary prepared by Steven's accountant as an accurate calculation of income and child support.
We review chancery cases de novo, but we will only reverse if the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). 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. Id. We give due deference to the trial court's superior position to determine the credibility of the witnesses and the weight to be given their testimony. Id. In a child-support determination, the amount of child support lies within the sound discretion of the trial court, and the lower court's findings will not be reversed absent an abuse of discretion. Akins v. Mofield, 355 Ark. 215, 132 S.W.3d 760 (2003); McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001). However, a trial court's conclusions of law are given no deference on appeal. Akins, supra.
The first issue raised in Suzanne's appeal is that the trial court's March 15, 2005, order fails to comply with the plain language of Administrative Order No. 10, which provides, in relevant part, as follows:
All orders granting or modifying child support (including agreed orders) shall contain the court's determination of the payor's income, recite the amount of support required under the guidelines, and recite whether the court deviated from the Family Support Chart. If the order varies from the guidelines, it shall include a justification of why the order varies as may be permitted under Section V hereinafter. It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a specific written finding within the Order that the amount so calculated, after consideration of all relevant factors, including the best interests of the child, is unjust or inappropriate.
Admin. Order No. 10, Section I (emphasis added).
This court has stated that a trial court " is required to reference to the child-support chart[.]" Akins, 355 Ark. at 222, 132 S.W.3d at 763 (emphasis added); see also Ford v. Ford, supra; Smith v. Smith, 337 Ark. 58, 990 S.W.2d 550 (1999). Here, however, the portion of the trial court's order establishing child support stated only that "[t]he Petition of the Plaintiff to modify support is granted. Based on the evidence received, the support obligation of the Defendant is and shall be $1,850 per month, beginning March 1, 2005." Because of the trial court's failure to comply with Administrative Order No. 10, Section I, we must reverse and remand this case for entry of an order that complies with that Order.
In view of this disposition, it would be premature for the court to address the issue of whether Steve, as the sole owner of a Subchapter S corporation, should be deemed a "non-salaried" or "self-employed" payor for child support purposes. Thus, we decline to decide that issue at this time.