dissenting. I do not agree with the majority’s statement of the law that a chancellor may consider the non-custodial parent’s ability to pay in setting the amount of child support. In a similar vein, I also cannot disagree with the majority’s reference that courts should avoid modifications that work undue hardship. However, I do not agree that these principles apply under the facts of this case. To the contrary, this case is illustrative of the problems that the federal legislation, our legislation, and the per curiam decisions of our supreme court were designed to redress. The law has always recognized that a non-custodial parent has an obligation and a duty to support his or her children. The most recent legislation on this issue was enacted to gain a degree of uniformity and to ensure that the amount of support ordered is at least adequate to provide for the needs of the child. The legislation also has an eye towards enforcement. To these ends, Ark. Code Ann. § 9-12-312(a)(2) (Supp. 1991) provides that the court shall refer to the most recent revision of the family support chart, and that there is a rebuttable presumption that the amount reflected on the chart is the correct amount. This statute does allow deviations from the chart amount, but only if the amount so reflected is deemed unjust or inappropriate. My departure from the majority’s decision in this case is that I firmly believe that the reasons announced by the chancellor provide an unsatisfactory basis upon which to alter the chart amount.
Here, we are presented with a custodial mother who has been receiving $50 a month since the thirteen-year-old child was an infant. She has supported herself and the child by sometimes working at two or three jobs. She now has another six-month-old child to support and, understandably, she has sought relief in our courts. Appellant testified:
With regard to her personal needs, I have not yet bought a winter coat. He shoes run anywhere from $12- $ 13.00 a pair, to a pair that will last her (at size nine) for a decent amount of time, running from $30.00 to $40.00. That is including tennis, regular school shoes, which would normally be boots, and a pair of shoes for church. Regarding dresses, I have yet to find one under $25.00 to $32.00, which is the cheapest I have found lately. I have worked all of her life, two to three jobs to buy these things for her. At this point, I cannot work two full time jobs. I have worked from eight to four and four to twelve in the past. As far as necessities, her appetite is bigger now than when she was an infant, and it costs more to feed a thirteen year old. Again, I work only one job, and I am in a personal bankruptcy. These debts are included on my Affidavit of Financial Means, and these amounts are being covered by my own Chapter 13 plan. Because of the personal time just to physically watch and take care of my thirteen year old, I don’t think that I would do anything else other than my full-time job of which I have worked for the last three years at this point, and I need help from Mr. Wisemon.
On the other hand, appellee has remarried and voluntarily lists the first and second mortgage of the home owned by his present wife as a reason for not following the chart amount. Appellee also includes other debts, but he refuses to provide the latest income tax figures and excuses this by stating that “my present wife refused to allow me to reveal these.” When pressed, he guessed that his wife earns “somewhere to the nearest $ 1,000, $13,000 to $15,000.”
In setting the amount of support, the chancellor stated:
The Court is looking at the chart. It has been established that this gentleman has income in the amount of $210.00 per week. The chart shows that amount would call for $51.00 per week in child support. The Court is required under the statutes and the rules set out by the Supreme Court to set the child support at that amount unless there is some reason to alter that amount. As I have indicated in the past, the Court does have a problem with, essentially, quadrupling anyone’s child support at any given time. That is not to say there are not some other reasons that apply that obviously making any person pay four times in child support what he has been paying all along is going to have some kind of devastation on him. In addition, the bills outweigh what he has income. Now, I want to state for the benefit of Mrs. Howard, she is not responsible for that, but it is a situation that exists. I am going to increase the child support. I am going to reduce it from the $51.00 per week down to $30.00 per week in child support.
To summarize, the chancellor deviated from the chart amount because appellee, like most people, including appellant, has expenses to pay and because of his reluctance to quadruple the amount of past support. However, the chart amount is presumed to be correct amount of support, and I can hardly believe that the refusal to apply the chart amount can be justified on the ground that the non-custodial parent has been paying a minimal amount of support over the years. The bottom line in this case is that this court is allowing this faulty reason and the appellee’s voluntarily assumed expenses to come before the interests of the child. I submit that these are neither cogent nor appropriate grounds to alter the chart amount. By sanctioning this departure from the support chart, this court is not applying the support chart as intended, and I fear that in time the chart’s rebuttable presumption will become meaningless.