WHITE v. WHITE

WHITE v. WHITE

Douglas WHITE, Appellant
v.
Kara WHITE, Appellee.

CA 09-485

Court of Appeals of Arkansas, Division II.

Opinion Delivered November 18, 2009

KAREN R. BAKER, Judge.

Appellant, Douglas White, appeals an order entered in Pulaski County Circuit Court finding that his overpayment of child support was voluntary. On appeal, Mr. White argues that the circuit court's finding was clearly erroneous. Mr. White also argues that he was entitled to credit for involuntary overpayment of child and spousal support to be applied against future obligations of spousal support. We disagree and affirm.

The parties filed for divorce in December 2003. On February 17, 2004, the Pulaski County Circuit Court issued an agreed temporary order of support that required Mr. White to pay temporary alimony and child support in the amount of $4300 a month beginning February 1, 2004. The court issued an order of wage assignment on the same day. On June 30, 2004, the trial court entered the final decree of divorce, ordering that Mr. White pay a total of $3660 in child support and alimony per month. These payments were to be made by wage assignment. Subsequently, Mr. White's employer continued to withhold $4300 monthly from his wages, despite the language in the divorce decree. Ms. Michelle Vocque, payroll coordinator for Mr. White's employer, testified that she received an order dated February 19, 2004, and that pursuant to that order, she began withholding $2,150 semimonthly from Mr. White's paycheck. Ms. Vocque testified that the next order she received was on August 16, 2006, when the Office of Child Support Enforcement issued a notice of wage assignment to Mr. White's employer reflecting the correct amount of Mr. White's child-support obligation under the terms of the divorce decree. Ms. Vocque did not, however, receive a supplemental order regarding wage assignment pursuant to the June 30, 2004 divorce decree.

Mr. White testified that after the entry of his divorce decree, he understood it to be the responsibility of the court, child services, and his employer's payroll coordinator to make any adjustments in the amount of child support to be withheld from his check. He stated that he did not believe it was his responsibility to arrange for any adjustment in withholding. His testimony was that he "relied on the Court and the lawyers and everybody else to get that accomplished." Despite receiving a pay stub indicating the exact amount being withheld for child support, Mr. White testified that it was not until August 2006 that he realized that he had been overpaying on his support obligation since the entry of the June 30, 2004 divorce decree. Ms. White testified that she was not aware that Mr. White had been overpaying his child and spousal support. Mr. White calculated that he had overpaid child support and spousal support in excess of $15,000. As a result of the discovered error, a new wage assignment was entered in August 2006 and forwarded to Mr. White's employer. On August 22, 2006, Mr. White filed a motion for modification of support and for reimbursement of overpayment of support. On September 22, 2006, he filed an amended motion to modify order for child support and for reimbursement for overpayment of support, setting forth the corrected calculation of the overpayment amount, and filed a brief in support.

As to the reason for overpayment, Mr. White testified that he "did not make these payments voluntarily" and that he "never expressed to [Ms. White] that [he] was making a gift to her of these amounts." Mr. White explained that at the time, he was not in a position financially to be able to make gifts of this nature to his children or his ex-wife and that he had incurred several thousand dollars in credit card debt. Because he owed approximately $2300 to Ms. White on other obligations, he and Ms. White had reached an agreement that he would continue making child-support payments until October 2006, several months after his obligation to pay child support ended.

At the conclusion of the hearing on January 25, 2007, the court requested that both parties submit a "letter brief," containing a list of what the parties owed each other, what had been paid, and a summary of how the parties wanted the court to proceed. The parties completed the court's directive and submitted "letter briefs," detailing the amounts owed and the amounts paid. On April 11, 2008, the parties entered into an agreed order for terminating support on June 1, 2008, as to the parties' youngest child, who turned eighteen on December 12, 2007, and would graduate from high school in May 2008. However, Mr. White's remaining support obligation of alimony payments in the amount of $2,000 a month were to continue until July 1, 2014.

On January 13, 2009, the trial court entered an order finding that the overpayments withheld from Mr. White's paychecks were "voluntary expenditures" and Mr. White was therefore not entitled to any reimbursement. The order stated that "[a]lthough this Court recognizes that [Mr. White] overpaid the amount of child support and that the mistake was not the fault of [Mr. White] or that of [Ms. White], the Court notes that [Mr. White] bears the responsibility of making the child support payments" and "[Mr. White] is the party who should be responsible for knowing the correct amount." This appeal followed.

Our standard of review for an appeal from a child-support order is de novo on the record, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Office of Child Support Enforcement v. Goff, 96 Ark. App. 238, 240 S.W.3d 133 (2006) (citing 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. Id. (citing Adametz v. Adametz, 85 Ark. App. 401, 155 S.W.3d 695 (2004)). In reviewing a circuit court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. (citing Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005)).

Mr. White asserts that the circuit court's finding that his overpayments of child and spousal support were voluntary payments was clearly erroneous. We disagree. It is well settled that the circuit court is not required to give credit for voluntary expenditures by a parent that are above the child-support amount. Guffey v. Counts, 2009 Ark. 410, ___S.W.3d ___; Glover v. Glover, 268 Ark. 506, 598 S.W.2d 736 (1980); Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002); Stuart v. Stuart, 46 Ark. App. 259, 878 S.W.2d 785 (1994); Buckner v. Buckner, 15 Ark. App. 88, 689 S.W.2d 584 (1985). This is the case because the custodial parent relies on proper compliance with the decree in making arrangements for the child's care. Brown, supra (citing Glover, supra).

Mr. White attempts to distinguish the cases on this issue by stating that the overpayments were not voluntary because there was a "mutual mistake of fact with respect to the correct amount of support that was to be withheld from Mr. White's paycheck" and he was not aware that he was overpaying. This argument fails. The term "voluntary" is defined as "produced in or by an act of choice; acting of oneself; not constrained, impelled, or influenced by another." See Webster's Third New International Dictionary 2564 (1993). Mr. White was aware of the terms of his divorce decree, and he was in a superior position to know how much child support was being withheld from his check. The execution of the wage assignment was within his control, and it was his responsibility to verify that he was making child-support payments in the correct amount. We hold, therefore, that the trial court's finding that Mr. White's overpayments of child support was voluntary is not clearly erroneous. See Guffey, supra (affirming this court's decision in Guffey v. Counts, 2009 Ark. App. 178, ___ S.W.3d ___, and holding that Guffey's overpayment were a voluntary expenditure of child support in excess of what was required by the circuit court's order, and while he was free, as any noncustodial parent is, to pay more child support than is required by law, he was not entitled to credit for those voluntary expenditures); Glover, supra (holding that the circuit court erred as a matter of law in awarding the appellee any credit for voluntary expenditures made by him for the benefit of his children); Brown, supra (holding that ex-husband's overpayments of child support were gifts to his ex-wife, and the overpayments properly were not applied toward ex-husband's medical expense arrearages). Because we affirm the trial court's determination that the overpayment in child support was voluntary, we do not address Mr. White's remaining arguments.

Affirmed.

PITTMAN and KINARD, JJ., agree.