ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION III

THOMAS S. LESLIE

APPELLANT

V.

SHARRON J. LESLIE

APPELLEE

CA 03-37

September 3, 2003

APPEAL FROM THE BOONE COUNTY CIRCUIT COURT

[NO. E-92-395-2]

HONORABLE GARY ISBELL,

JUDGE

AFFIRMED IN PART; REMANDED IN PART

Terry Crabtree, Judge

Dr. Thomas Leslie, the appellant, is the father of two children, Blaine and Megan, who were born during his previous marriage to appellee, Dr. Sharron Leslie. Thomas appeals from an order which reinstated his child support obligation as to Blaine and increased his child support payments with regard to Megan. For reversal, he contends that the trial court erred in reinstating his support payments for Blaine retroactively because Sharron's petition for modification did not allege sufficient facts to state a cause of action. He also argues on appeal that the trial court erred in considering his tax return for only one year in calculating the amount of support for both children. We affirm on the first issue and remand on the second.

At the time of the divorce in 1993, Blaine was ten years old and Megan was eight. By agreement of the parties, the decree provided that they would share joint custody of the children but that Sharron was to be their primary physical custodian. In May 1998, the court entered an agreed order regarding custody of Blaine. The order maintained the joint custody arrangement, but it provided that Thomas was to become the child's primary physical custodian. However, it was stated in the order that Blaine could return to Sharron's custody at any time he should choose to do so. The order also provided that, due to the change in circumstances, Thomas's child support obligation would be reduced to $2,000 per month.

The present litigation began on February 8, 2000, when Sharron filed a petition for an increase in support. As changed circumstances, Sharron alleged that Blaine had come to live with her in November 1999. Thomas responded with a motion to dismiss. He contended that Sharron's petition failed to state a cause of action because the child's return to her custody could not be urged as a change in circumstances because that event was contemplated in the previous order. In June 2000, Sharron amended her petition to include as additional allegations of changed circumstances that the children's needs had become greater and that Thomas's income had increased. Thomas again moved to dismiss, and Sharron amended her petition for a third time in August to allege that Thomas's income had increased by twenty percent. In June 2001, Thomas filed a motion to abate the payment of child support for Blaine alleging that he had turned eighteen and had graduated from high school.

The parties submitted briefs in November 2001, and the case was submitted to the court based on the briefs and their state and federal income tax returns from the years 1997 to 2000. In its order dated June 19, 2002, the trial court found that Thomas's annual income was $229,175, or $19,098 per month, based on Thomas's tax return for the year 2000. The trial court also found that there were two changes in circumstances which warranted a modification of the previous support order. The court first found that Blaine's return to Sharron's household justified reinstating the payment of support for Blaine up to the time he graduated from high school. Secondly, citing Tucker v. Tucker, 74 Ark. App. 316, 40 S.W.3d 145 (2001), the court found that, based on Thomas's current income, there was a substantial discrepancy between the present chart amount and the sum he had been required to pay in the previous order.

Appellant filed a motion for reconsideration in which he argued, among other things, that the court had erred in calculating the amount of child support using only the figures reflected on his 2000 income tax returns. The motion was denied, and this appeal followed.

A party seeking modification of a child-support obligation has the burden of showing a change in circumstances sufficient to warrant the modification. Weir v. Phillips, 75 Ark. App. 208, 55 S.W.3d 804 (2001). Under the law, retroactive modification of a court-ordered child-support obligation may only be assessed from the time a petition for modification is filed. Yell v. Yell, 56 Ark. App. 176, 939 S.W.2d 860 (1997). Appellant first argues that the trial court erred in awarding child support for Blaine retroactively based on Sharron's first petition for modification. He contends that it was error for the court to order retroactive child support because the petition failed to state a cause of action since the child's return to Sharron's home was an event that was anticipated in the previous order. The decision in Grant v. Grant, 223 Ark. 757, 268 S.W.2d 617 (1954), is cited as authority for the proposition that an anticipated event cannot be asserted as a change in circumstance. We find no merit in this argument.

As Thomas recognizes in his brief, in deciding whether there are sufficient facts to state a cause of action under Ark. R. Civ. P 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Malone v. Trans-States Lines, Inc., 325 Ark. 383, 926 S.W.2d 659 (1996). In testing the sufficiency of a complaint, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Travelers Cas. & Sur. v. Arkansas State Highway Comm'n, ___ Ark. ___, ___ S.W.3d ___ (opin. del. June 19, 2003). In deciding the issue, we must look only to the complaint. Malone v. Trans-States Lines, Inc., supra. Arkansas law requires fact pleading, and a complaint must state facts, not conclusions, in order to entitle the pleader to relief. Travelers Cas. & Sur. v. Arkansas State Highway Comm'n, supra. Sharron's petition for modification alleged as facts that she had been awarded custody of their two children in the divorce decree; that a subsequent order had been entered making Thomas the primary custodian of one of their children; that since that time the child had returned to her household, as permitted by court order; and that she was once again the primary custodian of both children. We hold that these facts demonstrate a change in circumstances and are thus sufficient to state a cause of action for the modification of support. The argument Thomas has presented to defeat the petition is in the nature of a defense based on his own interpretation of the previous order. However, we must consider only the petition, and the assertion of a defense of this kind does not translate into a conclusion that the petition itself was in any way deficient. Thus, we find no error in the trial court's award of retroactive modification.

Thomas's second issue is that the trial court erred in determining the amount of his income based solely on his tax returns for the year 2000. This argument is well-taken.

It is well settled that on appeal our review of a trial court's order of child support is de novo, and we will affirm the trial court unless its findings of fact are clearly erroneous. Alfano v. Alfano, 77 Ark. App. 62, 72 S.W.3d 104 (2002). As a rule, when the amount of child support is at issue, we will not reverse absent an abuse of discretion. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 104 (2000). It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Cole v. Cole, ___ Ark. ___, ___ S.W.3d ___ (April 30, 2003). And, the purpose of the child support guidelines is to use the most current income information because it more accurately portrays the payor's expendable income. McWhorter v. McWhorter, 351 Ark. 622, 97 S.W.3d 408 (2003). The version of the child support guidelines that is applicable to this case is In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. ___ (January 31, 2002). As pertinent here, the administrative order provides that:

For self-employed payors, support shall be calculated based on the last two years' federal and state income tax returns and the quarterly estimates for the current year. ... Also, the court shall consider the amount the payor is capable of earning or a net worth approach based on property, lifestyle, etc.

Administrative Order No. 10, Sec. III (c).

In this case, the trial court set support for both Blaine and Megan in the year 2000, and the court set support alone for Megan beginning in June 2001 after Blaine's graduation from high school. By its own admission, the court calculated the amount of Thomas's income based solely on his tax returns for 2000. However, the administrative order requires the court to consider, in addition to the estimates for the current year, the payor's tax returns for the last two years in determining the amount of expendable income. Although Thomas's quarterly estimates for 2001 were not made available to the court, the court did have before it Thomas's returns from 1998 to 2000. Because the court did not consider this information, it failed to comply with the administrative order. Therefore, we remand for the trial court to determine the amount of Thomas's expendable income for the years 2000 and 2001 by taking into consideration his tax returns for the appropriate years. In keeping with the administrative order, the court may also consider the amount Thomas is capable of earning or a net worth approach.

Affirmed in part; remanded in part.

Stroud, C.J., and Neal, J., agree.