dissenting. At a hearing on January 7, 1992, the appellee testified that his paycheck “runs between” $600 and $700 each pay day, and he gets paid twice a month. He has minor children whose custody was awarded to their mother in a divorce decree entered on May 8,1989. At that time, appellee was ordered to pay $160 every two weeks for child support. After the hearing in January 1992 the chancery court reduced appellee’s child support payments to $120 every two weeks.
The appellant argues that the chancellor erred because the evidence does not support a finding that there has been a change in circumstances which supports the modification. I dissent from the decision of this court affirming the chancellor.
My dissent is based on the fact that the Arkansas Supreme Court, in accordance with Ark. Code Ann. § 9-12-312(a) (Repl. 1991), issued a per curiam opinion on February 5,1990, adopting its most recent revision of the family support chart, see In Re: Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990), and under that chart a monthly take-home pay of $ 1200 per month calls for monthly support payments in the amount of $325 for two dependents. Therefore, under the chart, the chancellor’s order fixing appellee’s support payments for his two children at $120 per month conflicts with the family support chart.
In Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991), the Arkansas Supreme Court reversed and remanded a chancery court order which modified a previous support order. The Supreme Court said it was “unable to determine” whether the chancellor followed the correct procedure required by the court’s per curiam order issued on February 15, 1990. The court stated under that per curiam:
Reference to the chart is mandatory, and the chart itself establishes a rebuttable presumption of the appropriate amount which can only be explained away by written findings stating why the chart amount is unjust or inappropriate.
306 Ark. at 214. In Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992), the trial court’s modification of child support was reversed because the “sum and substance” of the chancellor’s remarks in making the modification was that “the chart amount of $78 was unreasonable.” The Arkansas Supreme Court said:
Given the presumption that the chart amount is reasonable, we believe it is incumbent on the trial courts to give a fuller explanation of their reasons for rejecting the chart. If appellate review is to have much significance, a greater account of why the chart is inappropriate under the circumstances of the case is essential.
309 Ark. 607.
In the present case, the trial court’s order made no reference at all to the support chart. It is my view that the two cases quoted from above make it clear that trial courts must comply with the Arkansas Supreme Court’s per curiam order of February 5,1990. That order refers to Ark. Code Ann. § 9-12-312(a)(2) and provides, in accordance with that statute, that the amount of child support set out in the chart creates a rebuttable presumption that it is correct, and it is only by “a written finding or specific finding on the record,” which states why the chart amount is unjust or inappropriate, that the trial court may deviate from the chart.
The appellant’s argument, in the present case, is not specifically based upon the trial court’s failure to consider or follow the family support chart. Apparently, that is why the majority opinion makes no mention of the chart or of the chancellor’s failure to refer to the chart. However, I think the Supreme Court’s decision in Black and Cochran, supra, and its per curiam of February 5, 1990, clearly indicate that trial courts must demonstrate that they have properly considered the chart and that the appellate courts should require that this be done, even if the attorneys do not raise the issue on appeal.
Therefore, I would remand for the trial judge to make written findings explaining his decision to deviate from the family support chart in this case.