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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
Summary of this case from Baker v. Office of Child Support Enf'tOpinion
No. CA12-147
01-30-2013
THANE THOMAS NEWTON APPELLANT v. STATE OF ARKANSAS, OFFICE OF CHILD SUPPORT ENFORCEMENT, and CATHIE S. REED APPELLEES
Thane T. Newton, pro se appellant. Kimberly J. Keller, for appellee.
APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [No. E-2001-1875-5]
HONORABLE ELIZABETH STOREY BRYAN, JUDGE
AFFIRMED
LARRY D. VAUGHT , Judge
Appellant Thane Thomas Newton brings this pro se appeal challenging the order entered by the Washington County Circuit Court on December 22, 2011, dismissing his petition for contempt and estoppel for abatement of support. Newton argues that his due-process rights were violated because he was not provided adequate notice of the trial and that the trial court erred when it dismissed his petition for abatement based on the doctrine of unclean hands. We affirm.
Newton and appellee Cathie Reed were divorced in January 2002. As per the divorce decree, Reed received custody of the parties' son, A.N., who was six years old at the time. Newton received standard visitation and was ordered to pay child support. In March 2005, appellee Office of Child Support Enforcement (OCSE) intervened in the proceeding based on Newton's failure to pay child support.
In January 2006, Newton was convicted of two counts of first-degree sexual abuse against his stepdaughter, for which he was sentenced to fifteen years' imprisonment. On September 18, 2006, Newton filed a petition to hold child support in abeyance based on his incarceration. The trial court dismissed the petition on September 12, 2007, citing Reid v. Reid, 57 Ark. App. 289, 944 S.W.2d 559 (1997), and stating that "a person responsible for paying child support is not entitled to a reduction in child support based on his reduced earnings when the reduced earnings are caused by that person's fault."
The record does not reveal the mother of Newton's stepdaughter.
In Reid, the appellant, after he was convicted of raping his sixteen-year-old daughter, petitioned the trial court for an abatement of his child-support obligation. The trial court denied the petition, finding that the doctrine of unclean hands applied, which precluded the appellant's claim for abatement because the position in which appellant found himself was one of his own creation, and that the children's needs had not diminished. Reid, 57 Ark. App. at 292, 944 S.W.2d at 561. The trial court also found that the appellant failed to prove a change of circumstances. Id. at 294, 944 S.W.2d at 562. We affirmed. Id. at 294, 944 S.W.2d at 562.
On March 9, 2011, Newton filed a petition for contempt and estoppel for abatement of support against appellees, alleging that he was entitled to have his child support abated because Reed had left the state with A.N. in violation of the divorce decree and because she had withheld visitation since Newton's incarceration. A month later, Newton filed a motion for leave to amend the petition for contempt, alleging that after he was incarcerated in September 2005, Reed removed over $19,000 of his personal property from a storage locker.
At the time he filed his petition, Newton's child-support arrearage was in excess of $25,000.
The trial court sent a letter to the parties on October 3, 2011, advising that the case had been set for a bench trial on December 9, 2011. On December 8, 2011, another notice was faxed to the warden of the Ouachita Unit, stating that the trial was scheduled for the following day and that Newton would be permitted to attend and testify via telephone.
Notice to Newton was mailed to Malvern, Arkansas, where he was incarcerated at the Ouachita River Correctional Unit.
The trial was held December 9, 2011. After Newton testified, the trial court denied Newton's request for abatement, finding that visitation and child support were separate matters. The trial court further found that it did not have jurisdiction in the divorce proceeding to hear Newton's claim for damages for Reed's alleged conversion of his personal property and that Newton would need to pursue a conversion claim in a separate civil action.
The order of dismissal that was entered by the trial court on December 22, 2011, reiterated its oral findings on Newton's personal-property claim, denying the petition for contempt. On the abatement-of-child-support issue, the trial court's order cited Reid and stated that Newton was not entitled to an abatement because of his incarceration and that his reduction in income was his fault. Newton appeals from this order, challenging the trial court's findings that relate to the dismissal of his petition for abatement.
This is Newton's second appeal of this matter. We remanded Newton's first appeal, ordering him to supplement the record and rebrief due to deficiencies in his abstract and addendum. Newton v. Office of Child Support Enforcement, 2012 Ark. App. 463.
In this appeal, Newton does not challenge the trial court's denial of his contempt petition that sought reimbursement for personal property Reed allegedly converted.
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Newton first argues that the trial court violated his due-process rights in holding the trial without adequate notice. However, our review of the record reveals that Newton never raised this due-process argument before the trial court. This court has stated many times that it will not consider arguments raised for the first time on appeal, and even constitutional arguments must be raised below. Ingram v. State, 2009 Ark. App. 729, at 6, 363 S.W.3d 6, 9. This rule applies equally to pro se appellants. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988) (stating that constitutional arguments made for the first time on appeal by pro se appellant would not be considered).
Next, Newton contends that the trial court erred in dismissing his petition for abatement. It is axiomatic that a material change in circumstances must be shown before a trial court can modify an order for child support, and a trial court's finding in this regard is subject to a clearly erroneous standard of review. Office of Child Support Enforcement v. Burroughs, 100 Ark. App. 128, 131-32, 265 S.W.3d 132, 135 (2007).
While never using the express terms "material change of circumstances," Newton attempted to allege such a change in his petition for abatement of support. He contended that he had been incarcerated since September 2005 (and presumably was unable to pay). Although diminution of earnings is a common ground for modification, we have held that 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. Reid, 57 Ark. App. at 294, 944 S.W.2d at 562 (approving of the application of the doctrine of unclean hands and affirming the trial court's finding that the appellant was not entitled to an abatement of child support when it was his misconduct, which resulted in imprisonment, against the child for whom he was supporting). Here, the trial court, citing Reid, applied the doctrine of unclean hands and denied Newton's petition seeking to abate his child support, finding that the incarceration was caused by his own fault. We hold that the trial court did not clearly err in making this finding.
Newton contends that the trial court erred in applying the doctrine of unclean hands because Reed absconded with A.N. and denied Newton's visitation. The trial court in its oral findings found that
Arkansas law has long held that visitation and child support are totally separate issues. So if a custodial parent is withholding visitation, that does not mean that the noncustodial parent can withhold child support. They are two separate issues. . . . The law is just that you can't withhold visitation because someone is not paying the child support and vice versa. So, for that reason your claim for relief as it relates to child support is denied.The trial court is correct. In Lyons v. McInvale, our court noted with approval a line of cases holding that the duty to pay child support is independent of the duty of the custodial parent to allow visitation because both may be enforced by the courts. 98 Ark. App. 433, 439, 256 S.W.3d 512, 516 (2007) (citing Henson v. Money, 273 Ark. 203, 617 S.W.2d 367 (1981); Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986); Brown v. Johnson, 10 Ark. App. 110, 661 S.W.2d 443 (1983) (each with the same holding in the context of adoption cases)). See also Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993).
Newton cites Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822 (1991), stating that the holding there was that the "[c]hancellor [found] that [the] wife was estopped from asserting and collecting past due child support due to her interference with visitation rights." Roark is inapplicable, however, because the issue there was the enforcement of a child-support order under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA)—not the abatement of a child-support obligation. Further, Roark was overruled by Child Support Enforcement Unit v. Robinson, 311 Ark. 133, 136, 842 S.W.2d 47, 48 (1992), which acknowledged the independence between support and visitation orders under the RURESA.
Newton also cites Carnahan v. Carnahan, 232 Ark. 201, 335 S.W.2d 295 (1960), and Nicholas v. Nicholas, 234 Ark. 254, 351 S.W.2d 445 (1961), arguing that when the custodial parent removes a child from the jurisdiction of the court and secrets the child, then support payments may be suspended. However, these cases fail to support Newton's position because he presented no evidence that Reed absconded or secreted A.N. or that she refused Newton the right of visitation. Instead, the evidence demonstrates that since September 2005, when Newton was imprisoned, he has been unable to exercise his visitation. Also, the record reflects that Newton knows where Reed is—he has written her letters and perfected service on her.
For these reasons, we hold that the trial court did not clearly err in denying Newton's petition for abatement of child support.
Affirmed.
GLOVER and WHITEAKER, JJ., agree.
Thane T. Newton, pro se appellant.
Kimberly J. Keller, for appellee.