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ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-616
EDGAR D. MILLER Opinion Delivered MARCH 18, 2015
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
SIXTEENTH DIVISION
[NO. 60DR-98-1328]
ARKANSAS OFFICE OF CHILD
SUPPORT ENFORCEMENT HONORABLE MORGAN E. WELCH,
APPELLEE JUDGE
AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Appellant Edgar D. Miller appeals the February 18, 2014 order of the Pulaski County
Circuit Court modifying his child-support obligation to his adult child, C.M., based on
C.M.’s special-needs status and inability to care for himself, and awarding retroactive support
from May 12, 1998, through January 24, 2014. He argues that the circuit court clearly erred
in re-imposing a child-support obligation past the age of eighteen for C.M. because (1) the
child-support obligation was terminated by operation of law three years prior; (2) the initial
decree did not address the issue of continued support, although C.M. was disabled at the
time of the decree; (3) the Office of Child Support Enforcement (O.C.S.E.) did not file a
counterclaim; and (4) equitable defenses applied. We affirm.
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I. Background
Appellant and Eva N. Miller were divorced pursuant to a May 12, 1998 decree, which
granted primary custody of the parties’ three minor children to Ms. Miller, with reasonable
visitation given to appellant. Appellant was ordered to pay child support in the amount of
$300 bi-weekly. It is undisputed that C.M. had a disability at the time the decree was
entered, but the decree was silent as to that issue.
After appellant lost his job in 1999, he petitioned the circuit court for a reduction in
child support, which was reduced by an order dated June 15, 1999, to $230 bi-weekly.
Appellant maintained child-support payments for fourteen years. The oldest child, C.M.,
turned eighteen on October 24, 2010, and the set of twins turned eighteen in June 2012.
There is conflicting evidence as to whether appellant received notice when C.M. turned
eighteen that he no longer owed a duty of support for C.M., but it is undisputed that
paragraph seventeen of the original divorce decree states that “child support shall be paid
until the last child of the parties attains age 18 or finishes high school, whichever event occurs
last.” Based on the payment-history chart supplied by O.C.S.E. covering the period from
May 12, 1998, through September 20, 2013, it does not appear that appellant modified his
payment at any time based upon C.M. reaching the age of eighteen.
On March 18, 2013, appellant filed a motion to modify child support based on the
fact that the parties’ children had reached the age of majority. O.C.S.E. filed a motion to
intervene on August 6, 2013, pursuant to its responsibilities under Arkansas Code Annotated
section 9-14-210(d) (Repl. 2009), and a motion for judgment regarding child-support
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arrearage on that same date. O.C.S.E. filed a reply to appellant’s motion to modify child
support that same day in which it admitted appellant’s allegations with respect to C.M.
However, in its amended reply filed on August 21, 2013, the O.C.S.E. affirmatively stated
that C.M. was developmentally disabled and would need care for the rest of his life and that
appellant should be ordered to continue to pay child support for the child.
Hearings were held on August 22, 2013, and January 28, 2014. The circuit court
found that based on Bagley v. Williamson, 101 Ark. App 1, 269 S.W.3d 837 (2007), the child
C.M., who was already an adult, was owed a continued duty of support because he lived
with his mother. The resulting order was filed on February 18, 2014, and appellant filed a
timely notice of appeal on March 18, 2014, and an amended notice of appeal on March 26,
2014.
II. Standard of Review
The standard of review for an appeal of a child-support order is de novo on the
record, and the appellate court will not reverse a finding of fact by the circuit court unless
it is clearly erroneous. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005). A finding is
clearly erroneous when, even though there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction that a mistake has been
committed. Adametz v. Adametz, 85 Ark. App. 401, 155 S.W.3d 695 (2004). We give due
deference to the superior position of the circuit court to view and judge the credibility of the
witnesses. Hunt v. Perry, 357 Ark. 224, 162 S.W.3d 891 (2004). While a circuit court’s
findings of fact shall not be set aside unless clearly erroneous, its conclusions of law are not
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given the same deference. See Vowell v. Fairfield Bay Cmty. Club, Inc., 346 Ark. 270, 58
S.W.3d 324 (2001). Accordingly, if a circuit court erroneously applies the law and an
appellant suffers prejudice, the erroneous ruling should be reversed.
III. Automatic Termination of Child Support
Appellant argues that absent a subsequent material change of circumstances, Arkansas
Code Annotated section 9-12-312 (Supp. 2013) makes it mandatory that support for a
disabled child be set at the time of the initial decree when the child was disabled at the time
of the initial decree. Ark. Code Ann. § 9-12-312(a)(1) (stating that when a decree is entered,
the court shall make an order concerning the care of the children, if there are any, and an
order concerning alimony, if applicable, as are reasonable from the circumstances of the
parties and the nature of the case). However, under the same subsection, the statute goes
further to allow the courts to provide for the continuation of support for an individual with
a disability that affects the ability of the individual to live independently from the custodial
parent. Ark. Code Ann. § 9-12-312 (a)(1)(6)(B). Appellant urges that in 2008, this court
held that section 9-12-312 requires the circuit court to make all orders that are reasonable
concerning the care of children at the time the divorce decree is entered. Bass v. Weaver, 101
Ark. App. 367, 278 S.W.3d 127 (2008). Accordingly, appellant maintains that, because at
the time of the entry of the decree C.M. had the special needs in question, this issue should
have been addressed in the initial decree.
Acknowledging that Arkansas recognizes a continued duty of support for a child who
is disabled and incapable of self support, we note that our supreme court has held that the
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disability must exist before the child reaches the age of majority. Towery v. Towery, 285 Ark.
113, 685 S.W.2d 155 (1985) (finding no duty where disabling injury occurred after majority).
The age of majority is when the child reaches the age of eighteen. Ark. Code Ann. §
9-25-101 (Repl. 2009). Appellant urges that this leaves only a limited time period for which
a parent can be held responsible for a continued duty of support: 1) either at the time of the
decree if the child is disabled at the time of the decree, or 2) if the child acquired the
disability prior to the age of majority, but after the entry of the decree, in which
circumstance a modification of support based on a material change of circumstances must be
filed.
When an issue is not raised in any discernible fashion in the brief of either party, in
the abstract, or in the record itself, suggesting that the issue was neither considered nor
argued below, it is not properly presented and should not be decided at the appellate level.
Where there was no indication that the issues in question were raised below, it will not be
considered for the first time on appeal. Abramson v. Eldridge, 356 Ark. 321, 149 S.W.3d 880
(2004); Stiles v. Hopkins, 282 Ark. 207, 666 S.W.2d 703 (1984). For a circuit court to have
committed reversible error, timely and accurate objections must have been made so that the
circuit court was given the opportunity to correct the error. It is the duty of the party
seeking the relief to obtain a ruling from the trial court. When a party seeking relief fails to
obtain a ruling on the specific issue, the appellate court is precluded from reviewing the issue
on appeal. Finagin v. Ark. Dev. Fin. Auth., 355 Ark. 440, 139 S.W.3d 797 (2003); Bell v.
Bershears, 351 Ark. 260, 92 S.W.3d 32 (2002).
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Appellant failed to properly preserve his argument that he cannot be held responsible
for continuing child support because it was not provided for in the initial decree at the circuit
court level and is barred from bringing this issue before a reviewing court. He did not plead
that the request for extended child support should have been made in the divorce decree in
his motion to modify child support, nor did he argue this issue at the August 22, 2013
continuance hearing or at the January 28, 2014 hearing. There was neither evidence
presented nor objections made to preserve this point for appeal. See Abramson, supra; Stiles,
supra.
Additionally, no testimony or evidence was presented at trial that child support for a
disabled child should not have been reinstated three years later without a showing of a
material change in circumstances; so this element of the issue is not appealable. Appellant
failed to properly preserve any issue with regard to whether a material change in
circumstances existed. He did not provide any facts to support his mere mention that a
change in circumstances existed to modify his child-support obligation in his motion to
modify child support, nor did he dispute this issue at the August 22, 2013 continuance
hearing, or the January 28, 2014 hearing.
This court recently addressed continued support for an adult child in Guthrie v.
Guthrie, 2015 Ark. App. 108:
A parent ordinarily has no legal obligation to support a child beyond age
eighteen. However, a parent may have a duty to provide continuing support to a
child who is disabled upon reaching his majority. See Elkins v. Elkins, 262 Ark. 63,
553 S.W.2d 34 (1977); Petty v. Petty, 252 Ark. 1032, 482 S.W.2d 119 (1972). Our
supreme court recognized in Petty that the onus of supporting the disabled child
should not be borne solely by one parent.
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The common-law duty to support a disabled adult child, set forth in Petty and
Elkins, was not included in section 9-14-237 when the legislature enacted that statute
in 1993. The statute’s automatic-termination provision made no exception for
disabled children. Nevertheless, since 1993, our courts have continued to recognize
a parent’s ongoing duty to support a disabled adult child. See Bagley v. Williamson,
101 Ark. App. 1, 269 S.W.3d 837 (2007); Davis v. Davis, 79 Ark. App. 178, 84
S.W.3d 447 (2002); Kimbrell v. Kimbrell, 47 Ark. App. 56, 884 S.W.2d 268 (1994).
In Bagley, we stated the following:
Indeed, an obligor’s duty to pay child support automatically terminates by
operation of law on the later of the date that the child reaches eighteen years
of age or should have graduated from high school. Ark. Code Ann. § 9-14-237
(Supp. 2005). However, the duty to support a child does not cease at majority
if the child is mentally or physically disabled in any way at majority and needs
support.
Bagley, 101 Ark. App. at 4, 269 S.W.3d at 840 (emphasis in original).
In light of these authorities, we conclude that section 9-14-237 sets forth the
general rule that parental support automatically ceases when a child reaches the
milestones that traditionally signal emancipation. However, the statute does not
automatically terminate a parent’s continuing, common-law duty to support a child
who is disabled upon attaining his majority and who needs further support. See Powell
v. Miller, 30 Ark. App. 157, 785 S.W.2d 37 (1990) (holding that a statute will not be
construed as overruling a principle of common law unless it is made plain by the act
that such a change in the established law is intended). Here, there is no dispute that
J.G. was disabled upon reaching age eighteen and remained so at the time of the
hearing.
We also observe that Arkansas Code Annotated section 9-12-312(a)(5)(B)
(Repl. 2009), which was in effect when section 9-14-237 became law, specifies that
a court may “provide for the continuation of support for an individual with a
disability that affects the ability of the individual to live independently from the
custodial parent.” Section 9-12-312 provides that a court may determine support
either initially “or upon review.” Ark. Code Ann. § 9-12-12(a)(3)(A) (Supp. 2013);
see also Davis, supra. This statute therefore provides additional authority for a court to
order continuing support to a child who is disabled upon reaching his majority.
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Guthrie, 2015 Ark. App. 108, at 2–3. Accordingly, we hold that the circuit court did not err
in finding that appellant’s child-support obligation did not automatically terminate at the age
of majority.
IV. Should the Initial Decree Have Addressed the Issue of Continued Support
Because C.M. Was Disabled at the Time of the Decree?
Next, appellant maintains that Bagley, which was heavily relied upon by the circuit
court, leaves open the question as to whether the continuing child-support obligation should
have been addressed at the time that the initial decree was entered where the child in
question had the disability at the time the initial decree was entered. He notes that, with
regard to the timing of the modification of support based on a disability in Bagley, what is
clear is that the mother petitioned the circuit court before the child obtained the age of
majority, and not approximately three years after the child obtained the age of majority as
here. Id.
The circuit judge recessed the January 28, 2014 hearing and conducted independent
research regarding the issues that had been presented at trial. The only pleadings before the
circuit court were (1) appellant’s motion to modify child support, which did not provide any
facts regarding a material change in circumstances and which requested credit for arrears for
varying periods of time, and (2) O.C.S.E.’s motion for judgment. Additionally, the circuit
court had heard testimony that (1) established that C.M. was receiving SSI and Medicaid, and
(2) the parties attempted to set an agreed-upon arrearage amount.
Five months later, and after ample time to conduct any research that needed to be
done, the final hearing was held to address all the continued matters. During the trial but
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prior to closing arguments, the parties agreed that the amount of the arrearage was $4,800.19,
without explanation as to the specific allocation toward appellant’s child-support obligation.
Our supreme court has held that a circuit court maintains continuing personal
jurisdiction over parties to a divorce with respect to support and alimony matters. See
Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005); Office of Child Support Enforcem’t
v. Ragland, 330 Ark. 280, 954 S.W.2d 218 (1997). To the extent that a material change in
circumstances must be proved in order to modify a child-support obligation subsequent to
the entry of the initial decree, this court upheld the circuit court’s finding in Guthrie, supra,
that a material change of circumstances occurred based on the fact that the child was disabled
at the point of reaching his majority and could not live independently. Here, there is no
dispute that C.M. was disabled at the time he reached the age of majority and still resided
with his mother at the time appellant attempted to modify his child-support payment.
O.C.S.E. addressed this issue in response to appellant’s motion, and we see no clear error
with the circuit court addressing this issue at the time appellant’s request for modification
occurred.
V. Should the Relief Sought by O.C.S.E. Have Been Pled in a Counterclaim?
Appellant also argues that the relief sought by O.C.S.E. was not properly pled, in that
O.C.S.E. did not petition the circuit court for a modification, but rather asked for affirmative
relief seeking the continuation of child support for C.M. in an amended reply to appellant’s
petition. Appellant submits that a proper motion must be filed in the circuit court before
modification can be made. He cites Arkansas Code Annotated section 9-14-234(b) (Repl.
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2009), which in pertinent part states that there should be no modification of support until
the time either party moves through proper motion filed with the court and served on the
other party to modify the order.
The circuit court judge raised this issue sua sponte by inquiring, “is there a petition
before me to declare [C.M.] to be a special needs child?” Here, because the relief sought by
O.C.S.E. was for the circuit court to order continued support, which was a claim that arose
out of the same transaction as appellant’s motion to modify support, appellant urges that
O.C.S.E. should have asked for the relief in a counterclaim, rather than in an amended reply,
and its failure to properly assert a counterclaim should have prevented the circuit court from
granting the relief sought by O.C.S.E. Citizens Bank v. Chitty, 285 Ark. 55, 684 S.W.2d 814
(1985) (holding that failure to assert the counterclaim prevented the court from reducing the
judgment by the amount already collected by the appellee at the time of trial).
We disagree. Because no testimony or evidence was presented at trial that O.C.S.E.
did or did not properly plead continued child-support relief via a counterclaim, Arkansas
Rule of Civil Procedure l5(b) (2014) applies. Although the circuit court requested that
counsel present arguments on the issue of O.C.S.E. not filing a petition to declare C.M. to
be a special-needs child, appellant failed to contest the alleged error. Instead, both counsel
continued to discuss the issues, acknowledged C.M.’s disability, and proceeded as though
there was no mistake to address. Rule l5(b) states, “When issues not raised by the pleadings
are tried by express or implied consent of the parties, they shall be treated in all respects as
if they had been raised in the pleadings.”
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In Mitchell v. Mitchell, 2 Ark. App. 75, 616 S.W.2d 753 (1981), the issue of continued
support for a child was brought up by the court, but the matter had not been previously pled.
This court held that, because there was no objection made by the appellant, and because the
appellant asked questions regarding the continued payments, the chancellor did not abuse his
discretion in treating the pleadings as amended to conform to the evidence. Here, because
appellant did not object to the continued discussion regarding C.M.’s disability, in essence
acknowledging that the disability existed far before the time the initial decree was entered
and was continuing in nature, we hold that he waived the right to raise this issue on appeal.
See Abramson, supra; Stiles, supra.
VI. Should the Equitable Defenses of Laches and Estoppel Have Prevented the
Circuit Court from Reinstating a Continued Duty of Child Support?
Enforcement of child-support judgments are treated the same as enforcement of other
judgments, and a child-support judgment is also subject to the equitable defenses that apply
to all other judgments. Accordingly, appellant submits that if an obligor presents to the
circuit court a basis for laches or an equitable-estoppel defense, there may be circumstances
under which the court can decline to permit enforcement of the child-support judgment.
See Ramsey v. Ramsey, 43 Ark. App. 91, 861 S.W.2d 313 (1993).
Estoppel arises where, by the fault of one party, another has been induced, ignorantly
or innocently, to change his position for the worse in such a manner that it would operate
as a virtual fraud upon him to allow the party by whom he has been misled to assert the right
in controversy. Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980). Estoppel can apply
to child-support matters and has been applied in a case where a father failed to pay child
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support as ordered, but was actually supporting his children in his home—and a contempt
citation for the arrearage was not filed until after the mother had removed the children and
the father was no longer supporting them. See Ramsey, supra. Similarly, it has been held that
long delay by a wife in invoking the process of the court to enforce a decree may give rise
to an estoppel against her claiming an accrued arrearage. Bethell, supra.
Appellant urges that he properly raised an estoppel defense at the circuit court level,
presenting evidence that he was induced to stop paying child support when he received
notification from O.C.S.E. that C.M. was emancipated and that he no longer owed a duty
to support. Appellant claims that he relied on O.C.S.E.’s notification to stop paying child
support, which in turn put him in a worse position. Appellant states that he relied on the
language in the divorce decree that his duty of support ended when each child obtained the
age of eighteen. It is undisputed that C.M. had the disability at the time the decree was
entered, and appellant argues that the mother and O.C.S.E. should be equitably estopped
from now seeking a continued duty of support nearly fourteen years after the decree was
entered. Appellant also cites Bethel, supra, claiming that there was an undue delay in seeking
the alleged arrearage and asking for continued support because his ex-wife and O.C.S.E. did
not raise these issues until three years after C.M. was emancipated and fourteen years after
the decree was entered.
Appellant claims that there was undue delay in O.C.S.E. seeking relief, either in the
form of the alleged arrearage or reinstated child support for C.M. He argues that undue
delay was exhibited because the parties were divorced in 1998, and it is undisputed that C.M.
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had the disability at the time the decree was entered. He claims his argument is strengthened
by the fact that child support was modified in 1999, and the issue of continued support was
not addressed at this hearing. The issue of the duty of continued support was not addressed
until three years after C.M. was emancipated due to obtaining the age eighteen, and appellant
urges that the circuit court clearly erred in determining that there was no evidence of laches.
First, we do not address appellant’s argument with respect to the alleged arrearage
because at trial the parties agreed that the amount of the arrearage was $4,800.19, without
explanation as to the specific allocation toward appellant’s child-support obligation.
Although O.C.S.E. initially argued that appellant owed as much as $35,734.19, the transcript
refers to two affidavits of arrearage prepared by O.C.S.E., one referring to the amount of
support if payments had stopped when C.M. turned eighteen and one as if the payments had
continued retroactively with amounts in the approximate range of $12,000 to $35,000. Prior
to closing arguments, the parties agreed upon $4,800.19 as the correct amount of arrearage,
and the circuit court so found in its order. Our supreme court has held that acceptance of
the benefits of a decree or judgment that are inconsistent with relief sought on appeal, and
detrimental to rights of others, bars appeal and requires its dismissal. See Wilson v. Fullerton,
332 Ark. 111, 964 S.W.2d 208 (1998). Because appellant agreed to the accepted amount of
arrearage at trial, we decline to reach the merits of whether the circuit court’s award of any
amount of arrearage was erroneous.
Although very little testimony or evidence was presented to develop the equitable
defenses of laches and estoppel with respect to the reinstatement of child support for C.M.,
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the circuit court made a determination that neither applied, and we see no clear error in that
finding. A party asserting estoppel must show that the party to be estopped knows the facts;
the other party must be ignorant of the true facts; the party to be estopped must have acted
so that the other party had reason to believe that the party intended its conduct to be acted
upon; and the other party relied on the conduct to its prejudice. Tribco Mfg. Co., Inc., v.
People’s Bank of Imboden, 67 Ark. App. 268, 998 S.W.2d 756 (1999). Moreover, with regard
to laches, it is an equitable doctrine that requires a detrimental change in position by one
party and an unreasonable delay by the other party. Adams v. Howard, 2014 Ark. App. 328,
436 S.W.3d 473. The application of laches is based on the particular circumstances of each
case and is a question of fact for the circuit court. See id.
Although O.C.S.E. argues that this issue is not properly before the court, we hold that
some evidence of both defenses was developed through testimony and discussed in closing
arguments. However, based upon the relevant statutes continuing the circuit court’s ability
to confer child support for C.M. under the particular facts of this case we see no error in the
circuit court’s finding that these equitable defenses did not apply with respect to the
reinstatement of appellant’s child-support obligation.
Affirmed.
KINARD and BROWN, JJ., agree.
Lucas Law, PLLC, by: Molly Lucas, for appellant.
Donna D. Galloway, for appellee.
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