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                 ARKANSAS COURT OF APPEALS
                                           DIVISION I
                                          No. CV-14-575


JAMES M. GUTHRIE                                     Opinion Delivered   February 18, 2015
                                APPELLANT
                                                     APPEAL FROM THE PULASKI
V.                                                   COUNTY CIRCUIT COURT,
                                                     TWELFTH DIVISION
                                                     [NO. 60CV97-6601]
VICKI P. GUTHRIE
                                     APPELLEE        HONORABLE ALICE S. GRAY,
                                                     JUDGE

                                                     AFFIRMED AS MODIFIED



                               DAVID M. GLOVER, Judge

       Appellant James Guthrie appeals from an order of the Pulaski County Circuit Court

requiring him to pay $508 per month in child support for his twenty-five-year-old disabled

son, J.G. He also appeals from an order awarding $4,000 in attorney’s fees to J.G.’s mother,

appellee Vicki Guthrie. We modify James’s monthly support obligation to $477 but otherwise

affirm the circuit court’s orders.

                                            I. Background

       James and Vicki Guthrie were divorced in 1998, and Vicki received custody of the

couple’s three children. The oldest child, ten-year-old J.G., was described in the decree as

having “special educational needs,” for which the parties would share tutoring costs. The

decree also noted that James was not “motivated to work full time” and that Vicki had earned

over ninety percent of the family’s income, paid the majority of household expenses, and
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acted as the children’s primary caretaker. The court imputed income to James based on his

earning ability and investments, and ordered him to pay $738 per month in child support until

each child reached the age of eighteen or completed high school.1

       In 2006, J.G. became the first child to turn eighteen and graduate from high school.

He suffered from autism at that point and needed constant supervision. Vicki became his legal

guardian, and he continued to live at home with her.

       After the last child turned eighteen in 2011, James continued to pay the full $738 in

child support until March 2012, when he filed a motion to terminate his support obligation.

His motion cited the fact that all three children had reached their majority.

       Vicki agreed that James should end support payments to the two youngest children.

But she resisted termination of support to J.G., who was almost twenty-four years old and still

living with her. Her May 2, 2012 response to James’s motion stated that J.G. was “autistic and

functions at the level of a five-year old child, requiring constant care and supervision at all

times.” She asked that James be required to “contribute to the care and maintenance of [J.G.]”

and “to continue to assist” with J.G.’s care.

       The court conducted hearings and received trial briefs on various issues surrounding

James’s request to terminate J.G.’s support. During the hearings, Vicki testified that J.G. was

unable to care for himself and that she, along with paid caregivers, looked after him. She said

that J.G. received a monthly Social Security payment of $710, qualified for Medicaid, and was


       1
       The child-support chart in effect at the time designated $738 as the monthly support
amount for three children, given James’s monthly income. In re Admin. Order No. 10: Ark.
Child Support Guidelines, 331 Ark. App’x 581, 590 (1998).

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the beneficiary of an irrevocable special-needs trust that carried a balance of $19,000.2 She

attributed well over $2,000 in monthly expenses to J.G.’s care and stated that she did not have

the financial resources to continue that care without James’s help.

       James testified that he was financially able to support J.G. but wanted relief from the

legal obligation to do so. He said that his income consisted of Social Security retirement

benefits, plus dividends from approximately $450,000 in investments. He also told the court

that he had owned a sailboat and been a member of a Gulf Coast yacht club; that he had lived

on the sailboat, although he also owned another home; that he received $28,000 in insurance

proceeds when the sailboat was destroyed in a hurricane; and that he had no debt. He agreed

that J.G. was unable to live independently and required constant supervision, and he

acknowledged that J.G. was unwelcome in his home for those reasons.

       Following the hearings, the court ruled that, due to J.G.’s disability, James’s support

obligation did not cease when J.G. reached his majority. The court ordered James to continue

his support payments to J.G. and calculated James’s monthly income for support purposes as

$2,107.01. The court then referenced a support-chart figure of $467 and deviated upward to

$508 as the monthly support owed. The support obligation was made retroactive to May 2,

2012 (the date that Vicki responded to James’s motion to terminate support), and James was

directed to make the support payments to Vicki as the trustee of J.G.’s special-needs trust. In

a separate order, the court awarded Vicki $4,000 in attorney’s fees. James filed timely notices

of appeal from both orders.


       2
        The trust was established by J.G.’s paternal grandfather.

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                          II. Automatic Termination of Child Support

       James argues first that his support obligation automatically terminated when J.G. turned

eighteen and graduated from high school. He cites Arkansas Code Annotated section 9-14-

237 (Repl. 2009), which provides in pertinent part:

       (a)(1) Unless a court order for child support specifically extends child support after
       these circumstances, an obligor’s duty to pay child support for a child shall
       automatically terminate by operation of law:

       (A)(i) When the child reaches eighteen (18) years of age, unless the child is still
       attending high school;

       (ii) If the child is still attending high school, upon the child’s high school graduation
       or the end of the school year after the child reaches nineteen (19) years of age,
       whichever is earlier.

According to James, the automatic-termination provision of section 9-14-237 took effect

when J.G. reached his majority and, in the absence of a prior motion for extension, ended his

support obligation. We disagree.

       A parent ordinarily has no legal obligation to support a child beyond age eighteen.

However, a parent may have a duty to provide continuing support to a child who is disabled

upon reaching his majority. See Elkins v. Elkins, 262 Ark. 63, 553 S.W.2d 34 (1977); Petty v.

Petty, 252 Ark. 1032, 482 S.W.2d 119 (1972). Our supreme court recognized in Petty that the

onus of supporting the disabled child should not be borne solely by one parent.

       The common-law duty to support a disabled adult child, set forth in Petty and Elkins,

was not included in section 9-14-237 when the legislature enacted that statute in 1993. The

statute’s automatic-termination provision made no exception for disabled children.

Nevertheless, since 1993, our courts have continued to recognize a parent’s ongoing duty to

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support a disabled adult child. See Bagley v. Williamson, 101 Ark. App. 1, 269 S.W.3d 837

(2007); Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002); Kimbrell v. Kimbrell, 47 Ark.

App. 56, 884 S.W.2d 268 (1994). In Bagley, we stated the following:

       Indeed, an obligor’s duty to pay child support automatically terminates by operation
       of law on the later of the date that the child reaches eighteen years of age or should
       have graduated from high school. Ark. Code Ann. § 9-14-237 (Supp. 2005).
       However, the duty to support a child does not cease at majority if the child is mentally
       or physically disabled in any way at majority and needs support.

Bagley, 101 Ark. App. at 4, 269 S.W.3d at 840 (emphasis in original).

       In light of these authorities, we conclude that section 9-14-237 sets forth the general

rule that parental support automatically ceases when a child reaches the milestones that

traditionally signal emancipation. However, the statute does not automatically terminate a

parent’s continuing, common-law duty to support a child who is disabled upon attaining his

majority and who needs further support. See Powell v. Miller, 30 Ark. App. 157, 785 S.W.2d

37 (1990) (holding that a statute will not be construed as overruling a principle of common

law unless it is made plain by the act that such a change in the established law is intended).

Here, there is no dispute that J.G. was disabled upon reaching age eighteen and remained so

at the time of the hearing.

       We also observe that Arkansas Code Annotated section 9-12-312(a)(5)(B) (Repl.

2009), which was in effect when section 9-14-237 became law, specifies that a court may

“provide for the continuation of support for an individual with a disability that affects the

ability of the individual to live independently from the custodial parent.” Section 9-12-312

provides that a court may determine support either initially “or upon review.” Ark. Code


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Ann. § 9-12-312(a)(3)(A)(Supp. 2013); see also Davis, supra. This statute therefore provides

additional authority for a court to order continuing support to a child who is disabled upon

reaching his majority.

       James cites Towery v. Towery, 285 Ark. 113, 685 S.W.2d 155 (1985), for its holding

that a court cannot reimpose a legal duty of child support once that duty has terminated.

Towery, however, is distinguishable in that the child in that case was healthy upon reaching

his majority but became disabled after turning eighteen. The Towery court held that, under

those circumstances, the duty of parental support could not be revived. But the court was

careful to note that the duty of support does not cease if the child is disabled at majority, as was

the case here.

       For these reasons, we affirm the circuit court’s ruling that James’s support obligation

to J.G. did not automatically terminate when J.G. turned eighteen and graduated from high

school.

                                       III. Need for Support

       James argues alternatively that J.G. does not need support because his financial needs

are met by Medicaid benefits, a special-needs trust with a balance of $19,000, and monthly

Social Security payments in the amount of $710. The question of whether continued support

is proper is based on the facts of each case. Bagley, supra. We will not reverse a court’s ruling

on this point absent an abuse of discretion. Davis, supra.

       As a preliminary matter, James attacks the circuit court’s failure to make a specific

finding that J.G. needed support, but there is no reversible error. The court took evidence on


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this issue and cited Bagley, supra, for its holding that a disabled adult child must demonstrate

a need for support. We presume that the circuit court acted properly and made such findings

of fact as were necessary to support its judgment. Gerard v. Novak, 2013 Ark. App. 743.

       On the merits, James cites the monetary figures contained in Vicki’s answers to

interrogatories and other prehearing documents as proof that J.G.’s monthly expenses were

adequately covered. However, during the hearings, the court asked Vicki to perform

additional calculations, particularly with regard to the amount of living expenses attributable

to J.G. After taking a recess to complete the calculations, Vicki testified that, if she were not

caring for J.G., she would live in a smaller house and reduce her mortgage and utility

payments by approximately $900 per month. She also attributed additional transportation costs

to J.G., along with occasional expenditures for things such as repairs to items that J.G. had

broken. She arrived at a monthly expense figure for J.G. of over $2,000 and stated that she

did not have the financial resources to care for J.G. without James’s help.

       Given the amount of J.G.’s Social Security benefits, the relatively modest balance of

his special-needs trust, and Vicki’s testimony, we cannot say that the circuit court erred in

ordering James to provide continuing support to J.G. While James argues that Vicki’s

calculations are suspect, we give due deference to the trial court to determine the credibility

of witnesses. Taku v. Hausman, 2014 Ark. App. 615.

                             IV. Modification of the Divorce Decree

       The divorce decree provided that James would pay support for the minor children

“until each child reaches the age of eighteen (18) or completes high school, whichever occurs


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last.” J.G. turned eighteen and completed high school in 2006. However, a child-support

order is subject to modification upon a showing that a material change in circumstances has

occurred. Maley v. Cauley, 2010 Ark. App. 850, 378 S.W.3d 808. James argues that Vicki

failed to prove a change of circumstances following entry of the original support order in the

1998 divorce decree.

       The party seeking modification of a support award has the burden of showing a change

in circumstances. Hall v. Hall, 2013 Ark. 330, 429 S.W.3d 219. When a noncustodial parent

petitions the court to terminate support because the child has attained his majority, the burden

shifts to the custodial parent to go forward with proof that support should be continued. Harris

v. Harris, 82 Ark. App. 321, 107 S.W.3d 897 (2003). A circuit court’s determination of

changed circumstances is a finding of fact that will not be reversed unless it is clearly

erroneous. Baber v. Baber, 2011 Ark. 40, 378 S.W.3d 699.

       The court in this instance found that a material change of circumstances occurred based

on the fact that J.G. was disabled upon reaching his majority and could not live

independently. We see no clear error in the court’s ruling. The 1998 divorce decree simply

noted that ten-year-old J.G. had “special educational needs” that required tutoring. Vicki’s

testimony confirmed that J.G. was in regular classes at the time the decree was entered and

took special-education classes only for speech and language therapy. She said that she could

not have anticipated that her son would be unable to look after himself when he turned

eighteen. On this evidence, the court may well have determined that a material change in

circumstances occurred between the time that J.G. was ten years old and the time that he


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became an adult.

                                          V. Standing

       James argues that Vicki lacks standing to seek support for J.G. because she is not

included in the list of persons set forth in Ark. Code Ann. § 9-14-105 (Repl. 2009), as those

who may seek support on behalf of a minor child.

       It is not clear to us that James argued the applicability of this statute below. An

appellant is bound by the scope and nature of the argument he made at trial. Chesapeake

Exploration, LLC v. Whillock, 2014 Ark. App. 55, 432 S.W.3d 61. In any event, the statute

does not purport to apply to the unusual situation in which a parent seeks support payable

during a disabled child’s adulthood. Moreover, Vicki was J.G.’s custodian, his guardian, and

the trustee of his special-needs trust. We therefore see no reversible error on the issue of

standing.

                                    VI. Special-Needs Trust

       James asserts that the circuit court erred in requiring him to make support payments

to Vicki as the trustee of J.G.’s special-needs trust. A special-needs trust is a device allowed

by the federal government to exempt certain assets from the resources that are counted to

determine an individual’s eligibility for government assistance. In re Ruby G. Owen Trust, 2012

Ark. App. 381, 418 S.W.3d 421. See also 42 U.S.C. § 1396p(d)(4)(A) (2010). According to

the Social Security Program Operations Manual System (POMS), § SI 01120.200 G.1.d,

child-support payments made directly to a trust/trustee as the result of a court order are not

income to the recipient.


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       Citing Gilbow v. Travis, 2010 Ark. 9, 372 S.W.3d 319, James argues that Arkansas law

prohibits payment of child support into an “interest-bearing” account. However, Gilbow is

distinguishable because the support obligor in that case was ordered to pay a lump-sum

arrearage into a trust account that he controlled. Gilbow did not involve periodic payments

into an already-existing, special-needs trust that was created for the benefit and support of a

disabled person. Further, payments into a special-needs trust are not merely for the

“accumulation of capital,” as James contends, citing Smith v. Smith, 341 Ark. 590, 19 S.W.3d

590 (2000). The trust is a government-sanctioned device that allows a disabled person to

receive child-support payments without having them counted as income. See In re Ruby G.

Owen Trust, supra. As such, the circuit court was well within its discretion to protect J.G.’s

government benefits by ordering that child support be paid into the trust.

                     VII. Computation of Income and Setting Child Support

       The circuit court set James’s monthly income as $2,107.01 for support purposes. This

consisted of James’s monthly retirement income of $666; his monthly interest on investments

of $812.58; and an imputed income of $628.43 per month, calculated as twenty hours per

week at $7.25 an hour. James argues that the court erred in imputing income to him, given

that he is sixty-six years old and retired.

       Arkansas Supreme Court Administrative Order No. 10, § III(d) (2014), provides:

              If a payor is unemployed or working below full earning capacity, the court may
       consider the reasons therefor. If earnings are reduced as a matter of choice and not for
       reasonable cause, the court may attribute income to a payor up to his or her earning
       capacity, including consideration of the payor’s life-style. Income of at least minimum
       wage shall be attributed to a payor ordered to pay child support.


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James contends that his decision to retire is reasonable and, therefore, no “earning capacity”

income should be imputed to him. We review the court’s imputation of income under the

abuse-of-discretion standard. Byrd v. Byrd, 2012 Ark. App. 589. An abuse of discretion occurs

when discretion is applied thoughtlessly, without due consideration, or improvidently.

Stevenson v. Stevenson, 2011 Ark. App. 552.

       A court may, in proper circumstances, impute income to a payor, but determining the

proper circumstances “is sometimes difficult.” Grady v. Grady, 295 Ark. 94, 98, 747 S.W.2d

77, 79 (1988). Our courts have voiced a reluctance to interfere with a payor’s personal life and

career choices. See id.; Byrd, supra. But, by the same token, we recognize that a payor’s

personal choices may have an impact on a custodial parent or a dependent child.

Consequently, the payor’s choices cannot always take precedence over his or her obligation

to earn income sufficient to provide support.

       In this case, it was not inherently unreasonable for James to retire at age sixty-six.

However, he has a dependent child to support, and the child’s other parent needs financial

help. Given these circumstances, the circuit court did not thoughtlessly or improvidently

impute income to James based on part-time, minimum-wage work.

       James also argues that the circuit court erred in setting the amount of his monthly child

support, specifically in deviating upward to $508 from the family support-chart amount of

$467. There is a rebuttable presumption that the amount of child support listed in the family

support chart is correct. Ark. Code Ann. § 9-12-312(a)(3)(B) (Supp. 2013). Only upon a

written finding that the chart amount is unjust or inappropriate, as determined under


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established criteria set forth in the chart, shall the presumption be rebutted. Ark. Code Ann.

§ 9-12-312(a)(3)(C) (Supp. 2013); Admin. Order No. 10, § I (2014). Section V of

Administrative Order No. 10 sets out several deviation criteria, including “other income or

assets available to support the child from whatever source, including the income of the

custodial parent.” Admin. Order No. 10, § V(a)(12) (2014). The list is not exclusive. Stewart

v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992).

       We begin by noting that the circuit court miscalculated the chart amount payable on

a monthly income of $2,107.01. The correct amount is $436 rather than $467. See Admin.

Order No. 10 (2014).3 Using $436 as the correct chart amount, we turn to the issue of

whether an upward deviation from that amount is proper.

       As grounds for the upward deviation, the court cited James’s accustomed standard of

living; the amounts he spent on recreation (including membership in a yacht club and

ownership of a sailboat); the insurance payments he received when the boat was destroyed;

and the fact that he had investment accounts worth $459,000. We review a court’s deviation

from the support chart for an abuse of discretion. Gilbow, supra.

       James argues that the court erred in deviating from the support chart because he lived

on his sailboat and did not own it for recreational purposes. James did in fact testify that he

lived on his sailboat. However, he acknowledged that he also had another, land-based home.

The court therefore may not have given credence to his characterization of the sailboat as a

residence. James argues further that the court should not have considered his investment


       3
        The amount of $436 is also correct under the 2012 and 2013 charts.

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accounts as a deviation factor because the court had already referenced those accounts to

calculate his income. While it is true that the court considered the interest from James’s

investments in setting his income for support purposes, the court was also permitted to

consider the assets themselves in deviating from the support chart. Admin. Order No. 10, §

V(a)(12). Accordingly, we see no abuse of discretion in the circuit court’s decision to deviate

upward from the family support chart.

       We therefore apply the amount of the court’s upward deviation, $41, to the correct

chart amount of $436, to reach $477 as the modified amount of James’s monthly support

obligation. In our de novo review of a fully developed equity case, we can enter the order

that the trial court should have entered. Frigon v. Frigon, 89 Ark. App. 180, 201 S.W.3d 436

(2005).

                                 VIII. Retroactive Modification

       The court made James’s support obligation retroactive to May 2, 2012, the date on

which Vicki responded to James’s motion to terminate child support. James argues that

support can be imposed retroactively only from the date that a petition for modification is

filed. See Hill v. Hill, 368 Ark. 200, 243 S.W.3d 886 (2006). However, he makes no

convincing case that Vicki’s May 2, 2012 response—in which she asked that James continue

to assist with J.G.’s care—was insufficient to serve as a petition for modification.

       James also argues that his child-support obligation terminated automatically by

operation of law and, therefore, no new support obligation arose until the court’s order was

entered. His point is not well taken because, as explained earlier in this opinion, James’s


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support obligation did not automatically terminate by operation of law.

         We therefore affirm on this point.

                                       IX. Attorney’s Fees

         James’s final argument is that the circuit court erred by ordering him to pay Vicki

$4,000 in attorney’s fees. He does not challenge the amount of the award but instead argues

that he has not violated the terms of the divorce decree. A trial court has the inherent power

and discretion to award attorney’s fees in a domestic-relations matter. Webb v. Webb, 2014

Ark. App. 697, ___ S.W.3d ___. There is no indication in this case that the court made the

fee award as a response to contumacious behavior.

         James also argues that Vicki “waited more than seven years” after his support obligation

had terminated to seek a continuation of support. However, Vicki had no reason to act earlier

because James continued to pay support for J.G. during those seven years. Further, James

admittedly has the financial ability to support his son, and he enjoys a life with considerable

assets and no debts. A court can consider the parties’ financial abilities in deciding whether to

award attorney’s fees. Id.

         Based on the foregoing, the court did not abuse its discretion in the attorney-fee

award.

       Affirmed as modified.
       ABRAMSON and HARRISON, JJ., agree.
       Dover Dixon Horne PLLC, by: W. Michael Reif and Carl F. “Trey” Cooper III, for
appellant.
       The Brad Hendricks Law Firm, by: Caroline C. Lewis, for appellee.




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