Hill v. Kelly

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SUPREME COURT OF ARKANSAS
No. CV-13-247
MICHELE KELLY HILL Opinion Delivered January 30, 2014
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT,
[NO. DR-98-260]
JAMES EDWARD KELLY, III HONORABLE MARK HEWETT,
APPELLEE JUDGE
REVERSED AND REMANDED.
JIM HANNAH, Chief Justice
Appellant, Michele Kelly Hill, appeals from an order of the Sebastian County Circuit
Court awarding child support and reimbursement of medical expenses to appellee, James
Edward Kelly, III. On appeal, Hill contends that the circuit court abused its discretion (1)
in granting Kelly’s objection to the discovery requests regarding his financial condition,
income, and assets; (2) in obligating her to contribute to the medical expenses of one of their
children who had reached the age of eighteen and had graduated from high school when the
medical expenses were incurred; (3) in retroactively awarding child support to a date
approximately three years before the filing of the motion for child support; and (4) in
imposing child support retroactively. Kelly cross-appeals and contends that the circuit court
erred (1) in finding that money given to Hill by her father was not income for purposes of
calculating child support, and (2) in finding that money paid to Hill as a result of her property
settlement from her second husband was not income for purposes of calculating child
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support. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(7) (2013), as
this is a subsequent appeal following an appeal that has been decided in the supreme court.
See Hill v. Kelly, 368 Ark. 200, 243 S.W.3d 886 (2006); Kelly v. Kelly, 341 Ark. 596, 19
S.W.3d 1 (2000). We reverse and remand.
Given the lengthy procedural history of this case, we recite only the facts relevant to
the disposition of this appeal. Hill and Kelly were divorced by a decree entered on August
25, 1999. At the time of their divorce, the circuit court placed primary custody of the parties’
three minor children with Hill and awarded her child support. As part of the settlement
reached at the time of the divorce, the parties agreed to numerous conditions regarding their
children, including the agreement that the parties are to share equally in all medical, dental,
and travel expenses incurred by the children up until the time they turn eighteen, or graduate
from high school, whichever occurs last.
Subsequently, in an agreed order entered on January 22, 2009, the circuit court
awarded custody of Aidan to Kelly. Then, on November 9, 2010, Hill filed a motion for
change of custody and child support for Aidan, contending that there had been a material
change of circumstances because Aidan had relocated to New Jersey to live with her. She also
propounded to Kelly a set of interrogatories and requests for production of documents
seeking financial information and documentation from 2007 through 2010. Kelly responded
and stated that, although Aidan was with Hill in New Jersey for visitation during the summer
of 2010, “no decision was made that . . . Aidan would stay in New Jersey until August of
2010.” Kelly also filed a motion for protective order, seeking a ruling that he was not
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required to comply with Hill’s discovery request. Kelly contended that, because he did not
owe any child support for Aidan, there was no reason for him to furnish the financial
information and documentation requested by Hill.
The circuit court entered an order on December 30, 2010, denying the motion for
change of custody because Aidan had returned to Arkansas and was living with Kelly.
Further, the circuit court granted Kelly’s motion for protective order. The circuit court
found that Aidan had been in New Jersey for visitation with Hill in June, July, and August
and then remained there to go to school for September, October, and through November
20, when she returned to Arkansas to live with Kelly. The circuit court also found that,
when Aidan was in New Jersey, Kelly paid the amount of child support that was calculated
by his counsel, even though there was no court order requiring him to pay any support.
Accordingly, the circuit court found that there was no arrearage due from Kelly and that
Kelly was not required to respond to Hill’s discovery request.
On April 7, 2011, Kelly filed a motion for child support and other related expenses,
seeking, among other things, child support for Aidan and reimbursement for the children’s
expenses. In April 2012, Hill submitted to Kelly interrogatories and requests for production
of documents, in which she sought financial information and documentation from 2007
through 2010. In response, Kelly filed a motion for protective order and contended that the
discovery requested was nearly identical to the discovery that was the subject of the motion
for protective order previously granted by the circuit court and that Hill was not seeking
relief that would cause her to need such documentation and information. Kelly contended
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that, with few exceptions, the interrogatories and requests propounded by Hill were unduly
burdensome, irrelevant, and intended as harassment. Hill contended that the discovery
request was relevant to the issue of child support, citing Arkansas Supreme Court
Administrative Order Number 10(V)(a)(12) (2013), which states that, when determining
whether there should be a deviation from the child-support chart, one factor to consider is
“[o]ther income or assets available to support the child from whatever source, including the
income of the custodial parent.” (Emphasis added.) In an order entered on September 12, 2012,
the circuit court found that it had previously ordered [in the December 30, 2010 order] that
Kelly did not have to respond to the discovery except that Kelly had to respond to
Interrogatories Nos. 20, 21, 23, and 25 and Request for Production No. 17.1
The circuit court held a hearing on September 24, 2012, on Kelly’s motion for child
support and other related expenses and ordered the parties to submit posttrial briefs.
Subsequently, the circuit court ordered Hill to pay child support in an amount based on her
reported income2 and the formulas set forth in the child-support chart. Specifically, the
circuit court found that Hill had a duty and an obligation to pay child support for Aidan from
September 1, 2008, until the date of the hearing on September 24, 2012, and a continuing
1
For purposes of this appeal, we need not identify the substance of these requests.
2
The circuit court found that money paid to Hill by her father and money received
by Hill from a property-settlement agreement with her second husband were not income for
the purposes of calculating child support.
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duty to pay child support for Aidan until her eighteenth birthday on June 6, 2013.3 In
addition, the circuit court ordered Hill to pay one-half of the travel and medical expenses
incurred by the parties’ minor children prior to the time they turned eighteen and graduated
from high school.
We first consider Hill’s argument that the circuit court abused its discretion in
granting Kelly’s objection to her discovery request regarding Kelly’s financial condition,
income, and assets. Kelly maintains that Hill’s requests were excessive and burdensome and
did not seek information relevant to the issue of child support. In addition, Kelly contends
that even if the circuit court erroneously denied Hill’s request, reversal is not warranted
because Hill has not been harmed; that is, Kelly contends that his financial status had no
bearing on the relief Hill was seeking and had no effect on the outcome of the proceedings.
Hill claims that the information and the documents requested were relevant because she
sought a downward deviation from the child-support chart and, pursuant to Administrative
Order Number 10(V)(a)(12), when determining whether a deviation should be allowed, one
factor to be considered is “[o]ther income or assets available to support the child from
whatever source, including the income of the custodial parent.” (Emphasis added.) Hill contends
that she was prejudiced by the circuit court’s discovery ruling because it prevented her from
fully presenting to the circuit court the income and wealth of Kelly. According to Hill, the
3
The circuit court ordered excluded from child support due from Hill the months of
September, October, and November 2010 because Aidan was living with Hill at that time
and because Kelly paid to Hill child support for those months. The circuit court reduced by
fifty percent the child support due to be paid by Hill for the months of June, July, and
August 2010 when Aidan was visiting Hill for the summer.
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requested discovery would assist her in establishing facts to justify a deviation from the child-
support chart.
Rule 26(b)(1) of the Arkansas Rules of Civil Procedure (2013) provides, in pertinent
part, that parties may obtain discovery regarding any matter, not privileged, which is relevant
to the issues in the pending action. It is well settled that a circuit court has wide discretion
in matters pertaining to discovery; thus, we will reverse a circuit court’s ruling only when
there has been an abuse of that discretion. E.g., Wilson v. Neal, 332 Ark. 148, 157, 964
S.W.2d 199, 204 (1998). Moreover, a discovery motion must be considered in light of the
particular circumstances which give rise to the request and the need of the movant for the
information requested. Id., 964 S.W.2d at 204.
We conclude that the circuit court abused its discretion in granting Kelly’s objection
to Hill’s discovery request. Hill argued that she was entitled to a downward deviation from
the child-support chart, and income from the custodial parent is relevant for determining
whether a deviation should be allowed. See Admin. Order No. 10(V)(a)(12). Accordingly,
we reverse and remand with instructions for the circuit court to reconsider Hill’s request in
light of her downward-deviation argument.4 Because we reverse and remand on the
discovery issue, we need not address the remaining arguments on appeal and cross-appeal.
Reversed and remanded.
Gean, Gean & Gean, by: Roy Gean, III, for appellant.
Hayes, Alford & Johnson, PLLC, by: Joel D. Johnson, for appellee.
4
In reversing and remanding on this issue, we express no opinion regarding which
interrogatories and requests for production of documents are relevant to Hill’s downward-
deviation argument.
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