Dare v. Frost Dissent final

Cite as 2017 Ark. App. 451
ARKANSAS COURT OF APPEALS
DIVISIONS II & III
No. CV-16-1022
Opinion Delivered SEPTEMBER 20, 2017
PARRISH DARE
APPELLANT APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT
V. [NO. 63DR-16-211]
SCOTT FROST HONORABLE BOBBY
APPELLEE MCCALLISTER, JUDGE
DISSENTING OPINION ON DENIAL
OF REHEARING
N. MARK KLAPPENBACH, Judge
I would grant Frost’s petition for rehearing and affirm the trial court’s decision in all
respects. I agree with our court’s holding that affirmed the visitation issue. I part company
on the issue of reversing and remanding on the child support issue because I do not believe
that the trial court abused its discretion.
Dare asked that Frost’s capital gains and stock portfolio be included in the calculation
of child support in her request for an increase, given that Frost’s tax returns showed
investment account gains as a taxable event. In resistance, Frost maintained that the increase
in value should not be considered income for child support purposes. The trial court did not
deem it proper to include those amounts where the growth in the account was not actually
realized, in the sense that no disbursement of money was available to the noncustodial father
to spend on child support or anything else. The trial court ultimately ruled that Frost’s
Cite as 2017 Ark. App. 451
investment accounts were similar to retirement accounts or ownership of real property and
that they may be included in the calculation of child support if Frost were to receive any
disbursements, but not until then. The trial court stated that trial courts should not engage
in cumbersome annual reviews of fluctuations in the value of such property.
In Frost’s petition for rehearing, as he did in his brief, Frost asserts that all the value has
remained in the stock portfolio that he uses to save for his retirement. Frost has never taken
a distribution from the account but has merely permitted his advisor to sell and buy stocks and
reinvest. Appreciation in value may be a taxable event, but it does not necessarily provide for
expendable income. That is what our case law and Administrative Order No. 10 seeks: to
realize the expendable income of the noncustodial parent.
Our case law clearly provides that a child-support payor’s income may differ from
income for tax purposes. Huey v. Huey, 90 Ark. App. 98, 204 S.W.3d 92 (2005). The
definition of income under the guidelines is broadly construed. White v. White, 95 Ark. App.
274, 282, 236 S.W.3d 540, 546 (2006). Nonetheless, the goal is to determine “the true
disposable income” of the payor. Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002);
Stepp v. Gray, 58 Ark. App. 229, 947 S.W.2d 798 (1997). One-time income such as an
inheritance or the cashing in of a certificate of deposit can be income. Ford v. Ford, 347 Ark.
486, 65 S.W.3d 432 (2002). In contrast, our court has reversed where capital gains were
improperly included in a child support case. White, supra. As with any marital property that
increases in value after a divorce is final, the parties cannot come back and claim a portion of
2
Cite as 2017 Ark. App. 451
the increased value. See Southerland v. Southerland, 75 Ark. App. 386, 58 S.W.3d 867 (2001)
(holding that stock option agreement was more akin to increased value in marital asset than
bonus income for child support purposes).
As the trial court reasoned, if trial courts must consider all stock investment accounts
where the owner allows it to grow and reinvests any gain, then this will create an
overwhelming situation for trial courts with cumbersome annual reviews. Also, if this is the
case, then logically the losses in an investment account may be utilized to seek annual reviews
for decreasing child support. This does not comport with the goal of determining Frost’s true
disposable income. The trial court had the discretion to determine what was properly
considered as Frost’s true expendable income, and I cannot say the trial court abused its
discretion in excluding the increase in value.
WHITEAKER, J., joins.
3