concurring. I concur in the modification of the appellee’s child support obligation, which has the result of reinstating the chart amount without consideration of the tax refund intercept and without additional sums to be applied toward the arrearage. I agree for several reasons.
First, I point out that any reduction based on the refund intercept results in a windfall to the payor spouse. Child support is set based on the payor’s net income, which includes a deduction for withholding. Since the payor spouse is given credit initially for such amounts withheld, the result of any further reduction based on the intercept of a refund is that the spouse is twice benefitted in a way that was not intended. The injustice of allowing this reduction is apparent in that this remedy would inure to the benefit of only those spouses who are behind in their payments, which would not be available to those who are current in their support.
I am also perplexed and dismayed that appellee was reported to the credit bureau, and from the record it appears that appellee’s attempts to rectify these matters were thwarted by the bureaucracy. While I hasten to acknowledge that appellee placed himself in this position by failing to pay support or reserve funds to cover these payments during the pendency of the first appeal, appellee has since the July 1989 order remained current in his support and has faithfully been paying additional amounts to be applied toward the arrearage. Under Ark. Code Ann. § 9-14-206(a) (Repl. 1991), the Child Support Enforcement Unit is charged with the responsibility of administering the state plan for child support enforcement required under Title IV-D of the Social Security Act. According to federal regulations, the state must establish by law procedures for making information regarding the amount of overdue support owed available to consumer reporting agencies. 45 C.F.R. § 302.70 (a)(7)(1990). However, the regulations afford a degree of flexibility in implementing this requirement as it is provided that the state need not apply this procedure in an individual case if its application would not be appropriate, taking into account “the payment record of the parent, the availability of other remedies and other relevant considerations.” 45 C.F.R. § 302.70 (b) (1990). Thus, without betraying its responsibility of administering the enforcement program, DHS need not have made the report to the credit bureau. The Department ought to recognize the efforts of payor spouses who remain current in paying support and are diligently making payments toward arrearages. There is room for equity in the performance of it duties.
In any event, the child has a right to receive and benefit from support payments and the department has the duty to see that support obligations are enforced; I, therefore, agree with the restoration of the chart amount in this instance. I realize that the chancellor earnestly tried to balance the equities here, but appellee should not be given the benefit of over-withholding.