Charity Graham v. Matthew Sexton ( 2022 )

Cite as 2022 Ark. App. 500ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-21-563
Opinion Delivered December 7, 2022
CHARITY GRAHAM
APPELLANT
APPEAL FROM THE HOT SPRING
V. COUNTY CIRCUIT COURT
[NO. 30DR-04-200]
MATTHEW SEXTON
APPELLEE
HONORABLE CHRIS E WILLIAMS,
JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Charity Graham appeals from an order of the Hot Spring County Circuit Court
granting her petition for a change of custody. Her sole point on appeal is that the circuit
court’s refusal to retroactively modify child support was clearly erroneous. We hold that the
court’s decision was not clearly erroneous and affirm.
Charity Graham and Matthew Sexton were divorced in 2007, and primary custody of
the parties’ two children was awarded to Charity. An agreed order entered in 2018 modified
custody, placing primary physical custody of MC1 (Minor Child 1) with Matthew and
primary physical custody of MC2 (Minor Child 2) with Charity. The parties agreed there
would be no child support paid for MC1, and Matthew was ordered to pay $250 a month in
child support to Charity for MC2.
The case on appeal began on September 22, 2020, when Charity filed a petition for
change of custody and additional relief requesting primary custody of MC1. Although an
attorney initially represented Matthew and filed an answer to Charity’s petition, Matthew
represented himself pro se for the remainder of this case and has not filed a brief in this
appeal. Charity was represented by her husband, who is a lawyer and the children’s
stepfather. In her petition, Charity alleged that the parties had generally cooperated
regarding the children but stated that visitation and communication issues had arisen shortly
after Matthew married Emily in 2019, that Emily “bad mouths” Charity in front of the
children, and that these issues constituted a material change in circumstances justifying a
change of custody for MC1. These issues were detailed in eleven enumerated paragraphs in
the petition. Charity summed up her request as follows:
12. For the reasons enumerated herein, Plaintiff respectfully requests that
primary physical custody of the parties’ minor child, [MC1], be transferred to her,
that she be awarded child support for both children commensurate with the Arkansas Family
Support Chart, and that Defendant’s visitation be sufficiently specified.
13. A Motion for Appointment of an Attorney Ad Litem is being filed
contemporaneously herewith.
WHEREFORE, Plaintiff, CHARITY SEXTON (Now GRAHAM),
respectfully requests that her Petition for Change of Custody be granted; that she be
awarded custody of [MC1]; that Defendant be ordered to pay ½ of all medical out of
pockets and co-pays; that Defendant be ordered to pay a reasonable sum of child support for
both children; that the parties visitation be specified; for her costs and fees incurred
herein; and for all other just and proper relief to which she may be entitled at law or
equity.
(Emphasis added.)
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In his answer and response to Charity’s petition, Matthew did not object to the
appointment of an ad litem, denied the detailed allegations in the petition, alleged that any
material change was attributable to Charity, alleged that Charity’s “erratic and explosive
behavior” had influenced the parties’ relationship, pled the affirmative defense of unclean
hands, and asked the court to deny and dismiss the petition. His attorney withdrew from the
case shortly thereafter. The circuit court scheduled a hearing in the case on July 19, 2021.
On July 13, Matthew filed an untitled pro se document that included the following points:
- We are not seeking custody of [MC1]
- We do not wish to have visitations with [MC1] at this time
- We are asking the court to recognize that there would be no child support
exchanged for [MC1] per the previous custody order. Therefore, there is no
back support owed on a child it was agreed there is no support exchanged.
Matthew continued by stating that he would continue to pay the $250 in child support for
MC2 until MC2 turned eighteen in September and would like the court to designate an
amount of support for MC1 from August until July 2023, when MC1 presumably would be
eighteen and have graduated from high school. He also alleged that Charity had disparaged
Emily and reached out to Emily’s minor children and their fathers, and he asked the court
to forbid Charity from posting about him, Emily, or Emily’s children on social media.
On July 14, five days before the hearing, Charity responded to Matthew’s filing,
acknowledging that Matthew was not contesting custody of MC1 “as [Matthew] has
voluntarily allowed [MC1] to remain in [Charity’s] sole custody since January 6, 2021.”
Charity asked the court to award “retroactive child support” for MC2 from September 22,
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2020—the date she filed her petition for custody of MC1—and for both children from January
6, 2021—the day MC1 moved in with her.
Because the parties had voluntarily resolved the custody issue, child support was the
only issue before the court at the July 19 hearing. Matthew, representing himself, began by
stating: “Well, if we’re not going to talk about how they stole [MC1] from me, then I’m just
here to pay what I need to pay and move on.” The parties agreed that child support should
be set by the court according to the prevailing child-support chart but disagreed whether it
should be retroactive.
Charity testified that she breeds French bulldogs for a living and that she started the
business in 2020. After her lawyer questioned her, the court asked whether her affidavit of
financial means was true and correct and accurately represented what she made in 2020, and
Charity said yes. The court asked her to “solemnly swear” to this, which she did. Charity said
she had lost money in 2020 because starting the business required her to spend money to
buy the bulldogs and pay the vet bills and other expenses before she could breed them. The
court asked her what she did before she bred bulldogs, and Charity said she worked at the
Graham Law Firm but was not paid for her services. The court then questioned her
specifically about her bulldog business. She said she had begun by helping an elderly couple
with their bulldogs and “was really good at it.” She said that she worked for this couple for
a while, but they did not pay her, so “we had to sue them.” She explained that the couple
had promised to give her a bulldog worth $15,000 in exchange for her work, but they then
kept the bulldog. She said the court awarded her a judgment of $7200, which the couple
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sent to her last month. The court asked Charity why she did not disclose this in her affidavit
or when Mr. Graham questioned her on direct examination. She said she received the check
after she turned in her affidavit.
The court then questioned Matthew about his affidavit and financial documents. He
said the numbers were correct, but he was not exactly sure what “they were asking for.” He
explained that he gets VA disability, and in some states, VA disability is excluded from child-
support calculations, and in some states it is not. The court marked the affidavit as an exhibit,
placed the names and style of the case on the document, and asked him to finish filling it
out and add his VA disability income while the court took a recess. The court reviewed the
affidavit again and, after more questioning, asked Matthew to make additional changes that
included his expenses and debt.
The court then questioned Charity again and asked her about gross sales receipts of
$1600 on her tax return. She said she was not sure if it was from the sale of a puppy but that
it must have been from a puppy sale; and that she isn’t good with numbers, has a “brain
tumor,” and could not even remember what year it is. She then remembered that it was
payment for photos she had taken to market the elderly couple’s bulldogs.
Finally, the court indicated that it had the information it needed to fill out the
worksheet to determine child support, noting that it sometimes needed to “oversee” the
information provided by pro se litigants because they often did not know how to complete
the documents. On the record, the court then denied Charity’s request for retroactive child
support, reasoning that the hearing was delayed due to COVID and that Charity had
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“unclean hands.” Specifically, the court said Charity failed to disclose her income on direct
examination, and “only on responses of inquiry of the Court” did it discover the $7200
judgment. The court also said that she failed to calculate into her affidavit $6600 she had
earned from real estate and $1600 she had earned from taking photographs, causing the
income on her affidavit of financial means not to be a true figure. The court stated that
“when somebody comes before the Court and they’re represented by counsel, they should
truthfully fill out their documentation as to what’s going on.” The court asked Mr. Graham
to prepare an order.
The court entered an order on July 29 granting Charity’s request for a change in
custody and modifying child support commensurate with this change and the child-support
chart and worksheet. The court denied retroactive support, finding Charity had unclean
hands. The court ordered Matthew to pay support of $955.91 a month for the months of
August and September 2021 based on income of $6358.70 for Matthew and $3120 for
Charity and two minor children. The court presumed income from Charity’s previous
employment as a legal secretary for her husband, Mr. Graham, at $18 an hour for a forty-
hour week. The court also noted that Walmart is paying educated employees with experience
between $17 and $19 an hour with a signing bonus, stating that the “presumed amount is
not unreasonable.” The court awarded child support of $667.45 a month after September
when MC2 turns eighteen.
Charity filed a motion for reconsideration asking the court to reconsider its denial of
retroactive child support. On August 26, the court held a hearing on the motion. At the
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hearing, Mr. Graham argued that unclean hands was not appropriate because Charity
completed the affidavit of financial means in April 2021, and the $7200 judgment was not
awarded until a month later. He also contended that Charity did not consider the judgment
to be income because it was compensation for a dog. He argued that there was no intent to
defraud the court as he claimed was required for unclean hands.
The court noted that both Mr. Graham and Charity had signed the affidavit, which
mandated that they review the document before each court hearing and provide updated
information to the other party and the court. Mr. Graham agreed that he was aware of the
mandate but argued that it was not income. The court said simply that it was failure to
disclose. The court also stated an additional reason for denying retroactive support, finding
specifically that Charity failed to plead it. The court stated, “[T]here is absolutely no request
that this Court could have entertained concerning back child support and it’s denied.” The
court noted that Charity’s initial pleading did not address the issue of retroactive child
support, which was not mentioned until her response was filed to Matthew’s pro se statement
five days before the hearing. The court found that Charity’s response did not constitute an
affirmative pleading because it was not a claim, a cross-claim, a counterclaim or even an
affirmative request for back child support, noting that what Charity wants and what she pled
“are two different things.” The court found that the language in paragraph 12 of Charity’s
petition requesting child support commensurate with the child-support chart was simply a
request for support, not retroactive child support.
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The court entered an order on August 27, again denying Charity’s request for
retroactive child support. The court denied it for two reasons: first, it found Charity appeared
before the court with unclean hands, and second, it found that she failed to plead
affirmatively for back child support. The court also modified its original order by reducing
Charity’s gross income to $2600 a month and Matthew’s gross income to $5616 a month
and calculating child support for one child at $742.33 a month. No explanation was given
for the change. Charity filed this appeal, challenging the court’s denial of her request for
retroactive child support.
The 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. Symanietz v. Symanietz, 2021 Ark. 75, 620 S.W.3d 518. 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 given to their testimony. Id. In a child-
support determination, the amount of child support lies within the sound discretion of the
circuit court, and that court’s findings will not be reversed absent an abuse of discretion.
Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). However, a circuit court’s conclusions
of law are given no deference on appeal. David v. David, 2022 Ark. App. 177, at 11, 643
S.W.3d 863, 869.
We turn first to Charity’s contention that the circuit court clearly erred in finding
that she failed to affirmatively plead for retroactive child support. She argues that her initial
pleading recognized that Matthew was already paying child support, which is the reason she
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requested a modification of child support rather than retroactive support. She points to
language in her petition asking that she be “awarded child support for both children
commensurate with the Arkansas Family Support Chart” and in her responsive pleading
filed five days before the hearing asking for support from the date she filed her petition. We
cannot say the circuit court clearly erred in finding that this did not constitute an affirmative
pleading for back support. The petition requested a change in custody and, in summation,
a modification of child support commensurate therewith. There was no request for back
child support. Furthermore, her reply to Matthew was a responsive pleading, not an
affirmative pleading.
Charity also cites Ark. Code Ann. § 9-14-107(d) (Supp. 2021), providing that any
modification of a child-support order shall be effective as of the date of service on the other
party “of the file-marked notice of a motion for increase or decrease in child support[.]” The
operative language here is a motion for an increase or decrease in child support. Charity filed
a petition for a change in custody. This statute is titled “Change in income warranting
modification” and concerns petitions for a modification in child support based on a material
change in the gross income of the payor or payee parent. Charity’s petition requested a
change in custody. Nowhere in the petition did she allege that either party had a change in
his or her gross income warranting a modification of child support. A request for child
support “commensurate” with the custody change according to the Arkansas Family Support
Chart is not a request under this statute.
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Because we hold that the circuit court did not clearly err in denying Charity’s request
for retroactive support for not being affirmatively pled, we need not address the court’s
alternative reason of unclean hands. We note, however, that we review a circuit court’s
application of the clean-hands doctrine for an abuse of discretion, Grable v. Grable, 307 Ark.
410, 821 S.W.2d 16 (1991) and, further, that Charity’s arguments regarding the
requirements for findings of fraud and constructive fraud are not applicable here. We also
are not persuaded by her argument that Matthew was equally at fault in failing to disclose
information; thus, the court’s finding of unclean hands on her part was uneven. The court
noted three examples of nondisclosure on Charity’s affidavit: real estate income of $6600;
income from taking photos of $1600; and the $7200 judgment. The circuit court also
recognized that Charity was represented by counsel, her husband, and Matthew was pro se.
We give great deference to the circuit court’s superior position to judge the credibility of the
witnesses. Buskirk v. Buskirk, 2018 Ark. App. 417, at 5, 559 S.W.3d 285, 288. The Arkansas
Supreme Court has held that there is no other case in which the superior position, ability,
and opportunity of the circuit court to observe the parties carry a greater weight than one
involving the custody of minor children. Taylor v. Taylor, 345 Ark. 300, 304, 47 S.W.3d 222,
224 (2001). The court did not abuse its discretion.
Affirmed.
KLAPPENBACH and BROWN, JJ., agree.
The Graham Law Firm, by: James Lucas Graham, for appellant.
One brief only.
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