dissenting. For her first point on appeal, Hill argues that the circuit court erred when it adjusted Kelly’s income for the financial support of their two oldest children in determining the amount of support Kelly owed Hill for the youngest child. She specifically contends that the circuit court’s reduction of Kelly’s net income by 21% was a deviation from the support guidelines set forth in Administrative Order No. 10. I agree.
Under the plain language of Administrative Order No. 10, income is defined under Section II:
Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for:
1. Federal and state income tax;
2. Withholding for Social Security (FICA), Medicare, and railroad retirement;
3. Medical insurance paid for dependent children; and
4. Presently paid support for other dependents by court order.
(Emphasis added.) Thus, in determining income for child-support purposes under section II, only “presently paid support for other dependents by court order” is properly deductible. Under section 111(b), when the payor’s income exceeds that shown on the family support chart, then certain percentages “of the payor’s monthly income as defined in Section II” should be used to set and establish the amount of child support. The relevant percentages in the instant case are 15% for one dependent; 21% for two dependents, and 25% for three dependents. As Kelly is a self-employed payor, support must be calculated based on “the last two years’ federal and state income tax returns and quarterly estimates for the current year.” See Ark. Sup. Ct. Admin. Order No. 10, § III(c).
The circuit court complied with Sections II and III of the administrative order when it determined Kelly’s monthly averages for child-support purposes to be $35,605 for 2003 and $41,384 for 2004. It was at this point, according to the majority, that the court deducted 21% of Kelly’s income from the monthly averages noted above, “to arrive at a logical support allowance for the two children in his care.” The court then applied the rate of 15% to calculate the child support Kelly owed to Hill for the youngest child in her custody. The majority states that such a calculation “appear[s] to follow Administrative Order Number 10.” I disagree.
The majority apparently relies upon the following provision set forth in section V:
V. Deviation Considerations
b. Additional Factors.
Additional factors may warrant adjustments to the child support obligations and shall include:
7. The support required and given by a payor for dependent children, even in the absence of a court order;”
This provision expressly states that all of the factors listed under section V are “Deviation Considerations”; that is, matters to be considered by the court in determining whether a deviation is appropriate. Thus, the circuit court’s adjustment of Kelly’s income for the financial support of the two oldest children in his care was in fact a deviation from the support guidelines under Administrative Order No. 10. As support for the adjustment to Kelly’s monthly average income, the circuit court cited section V(b)(7) of the administrative order, as well as its finding that “the father has contributed all of the funds to support the two children in his custody.”
Such circular reasoning does not, in my view, satisfy the requirement that the court set forth a justification for “why the order varies as may be permitted under Section V.” Ark. Sup. Ct. Admin. Order No. 10, § I. To merely cite the provision that authorizes a deviation, i.e. section V, does not begin to answer the question “Why?” Similarly, to say that the father contributes all of the funds to support the children in his custody is inconsistent with the court’s decision to impute a minimum wage income to Hill and then to assess her with child support for those two children.
For the above stated reasons, I respectfully dissent.
Dickey, J., joins this dissent.