{
  "id": 6139206,
  "name": "Leon Thomas FUSHER v. Shelly Ann FUSHER",
  "name_abbreviation": "Fusher v. Fusher",
  "decision_date": "2008-09-17",
  "docket_number": "CA 08-117",
  "first_page": "158",
  "last_page": "162",
  "citations": [
    {
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      "cite": "103 Ark. App. 158"
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    {
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      "cite": "287 S.W.3d 624"
    }
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  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
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    {
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      "reporter": "Ark. App.",
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      "year": 2007,
      "pin_cites": [
        {
          "parenthetical": "holding that proceeds from a class-action medical-malpractice suit, when received, would constitute income for child-support purposes"
        },
        {
          "parenthetical": "holding that proceeds from a class-action medical-malpractice suit, when received, would constitute income for child-support purposes"
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      "reporter": "Ark.",
      "case_ids": [
        5683848
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      "year": 2005,
      "pin_cites": [
        {
          "parenthetical": "awarding child support based on money judgments received in a malicious prosecution suit and assault suit"
        },
        {
          "parenthetical": "awarding child support based on money judgments received in a malicious prosecution suit and assault suit"
        }
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    {
      "cite": "347 Ark. 485",
      "category": "reporters:state",
      "reporter": "Ark.",
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        683302
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      "year": 2002,
      "opinion_index": 0,
      "case_paths": [
        "/ark/347/0485-01"
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    {
      "cite": "89 Ark. App. 134",
      "category": "reporters:state",
      "reporter": "Ark. App.",
      "case_ids": [
        6138653
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      "weight": 4,
      "year": 2005,
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  "analysis": {
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  "last_updated": "2023-07-14T22:49:33.837419+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Vaught, J., agrees.",
      "Robbins, J., concurs."
    ],
    "parties": [
      "Leon Thomas FUSHER v. Shelly Ann FUSHER"
    ],
    "opinions": [
      {
        "text": "Wendell L. Griffen, Judge.\nLeon Thomas Fusher appeals from a judgment awarding his ex-wife, appellee Shelly Ann Fusher, child support of $52,500, based on a $247,858.17 lump-sum malpractice settlement that he received. He argues that the circuit court erred in excluding evidence that he received the settlement as payment for pain, suffering, and disability, and evidence that one-half of the settlement was paid to his current wife for loss of consortium. Relatedly, he argues that the circuit court erred in counting the entire malpractice settlement as income for child-support purposes. We disagree and affirm the circuit court\u2019s order.\nThe parties in this case were divorced in 2001, and appellant was ordered to pay child support for their two minor children. Appellee subsequently filed a motion to modify appellant\u2019s child-support obligation, alleging that he had received a settlement in a lawsuit, which constituted a change in circumstances warranting a lump-sum payment of child support.\nA hearing on appellee\u2019s motion was held, during which appellant testified that he received a net settlement of $247,858. Appellant\u2019s attorney conceded that the settlement was simply a lump-sum settlement that did not apportion damages for pain and suffering or future medical expenses \u201cor anything else.\u201d The circuit court rejected as irrelevant appellant\u2019s numerous proffers of evidence to prove that the medical-malpractice settlement was not income but compensated him for pain, suffering, and disability; that his medical bills totaled approximately $644,000; that his current wife was required to sign the settlement release; that the settlement was paid jointly to him and his wife due to her loss of consortium; and that she received one-half of the proceeds.\nThe circuit court determined that the entire amount of the net settlement, $247,858, was income for child-support purposes. It awarded 21% of that amount, or $52,500, as a one-time child-support payment for the parties\u2019 two children. Appellant filed a motion for reconsideration only of the court\u2019s determination that the entire amount of the settlement was income for child-support purposes. He attached a copy of the settlement check showing that the check was made payable to him and his wife, and he requested that the court enter judgment for appellee in the amount of $26,250 (one-half of the judgment ordered). The circuit court summarily denied the motion, and this appeal from only the original judgment followed.\nThe issues in this case are, whether the circuit court erred in excluding the proffered evidence regarding the nature of the settlement and in determining that the entire amount of the settlement was income for child-support purposes. As these issues are closely related, we address them together.\nChild-support cases are reviewed de novo on the record. See Cole v. Cole, 89 Ark. App. 134, 201 S.W.3d 21 (2005). It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Id. When the amount of child support is at issue, we will not reverse the trial judge absent an abuse of discretion. Id.\nIncome for child-support purposes is defined by Administrative Order Number 10 as \u201cany form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers\u2019 compensation, disability, payments pursuant to a pension or retirement program, and interest.\u201d (Emphasis added.) The definition of income under Order No. 10 is intentionally broad and is designed to encompass the widest range of sources consistent with this State\u2019s policy to broadly interpret income for the benefit of the child. See Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002).\nSums paid due to money judgments are considered income for child-support purposes. See Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005) (awarding child support based on money judgments received in a malicious prosecution suit and assault suit); Stuart v. Stuart, 99 Ark. App. 358, 260 S.W.3d. 740 (2007) (holding that proceeds from a class-action medical-malpractice suit, when received, would constitute income for child-support purposes). Given these authorities, the circuit court here did not abuse its discretion in determining that the appellant\u2019s net malpractice settlement was income for child-support purposes.\nTo the extent that appellant argues the malpractice-settlement proceeds should not be considered income because the money was paid to compensate for his disability, that argument fails because disability is expressly listed as a source of income in Order No. 10. Moreover, appellant seemingly concedes that whatever portion of the settlement that was not apportioned for loss of consortium is income for child-support purposes. Because appellant did not ask the circuit court to reconsider its finding that his portion of the settlement was income for child-support purposes, the real issue is whether the circuit court erred in excluding the proffered evidence that one-half of the settlement was paid for loss of consortium.\nWe agree that if any part of the settlement was paid for loss of consortium, it would have been error for the circuit court to base the child-support award on the entire settlement. Appellant testified, without objection, that his wife was required to sign the settlement documents. He also proffered additional evidence to prove that his wife was required to provide extensive care for him during his recovery; that the check was issued to both of them; and that he deposited one-half of the proceeds into his wife\u2019s separate bank account.\nWe hold that the circuit court did not err in excluding the proffered evidence. In the absence of a settlement apportioning payment for loss of consortium, the proffered evidence did not have any tendency to prove that any portion of the settlement was issued for that element of damages. See Ark. R. Evid. 401. The settlement documents are not part of the record before this court, so we defer to the circuit court\u2019s observations regarding the terms of the settlement. The circuit court observed, and appellant\u2019s attorney conceded, that the settlement \u201cagreed to settle a case for with [sic] no attribution, no injury award that sets amount of pain and suffering or future medical or anything else.\u201d (Emphasis added.)\nThe circuit court also observed, without objection, that the \u201csettlement documents\u201d did not set forth specific elements of damage for which the settlement was made. Accordingly, the terms of the settlement belie appellant\u2019s claim that any portion of the settlement was specifically based on his wife\u2019s loss of consortium.\nAffirmed.\nVaught, J., agrees.\nRobbins, J., concurs.\nIn his brief, appellant requested oral argument, but none was scheduled because he failed to file a contemporaneous request, separate from his brief, with the Arkansas Supreme Court Clerk\u2019s Office. See Ark. Sup. Ct. R. 5-1 (a).\nThe settlement check was addressed to appellant, his wife, and his attorney\u2019s law firm, and was apparently deposited into the law firm\u2019s trust account. The trust account ultimately issued the setdement check in the amount of $247,858.15 to appellant and his wife, with no explanation of the purpose of the check cited in the \u201cfor\u201d blank.",
        "type": "majority",
        "author": "Wendell L. Griffen, Judge."
      },
      {
        "text": "B. Robbins, Judge,\nconcurring. I agree with Judge Griffen\u2019s opinion in which we affirm the trial court\u2019s decision in this case. I write separately to make clear that we are not holding, or at least I am not, that recovery on a spouse\u2019s loss of consortium claim is subject to her husband\u2019s, or his wife\u2019s, child support obligation. Here, although appellant may have been consorting with his present wife when his claim of medical malpractice arose, the wife who could possibly have had a loss of consortium cause of action was the appellee. From what I can glean from appellant\u2019s abstract, the alleged medical malpractice occurred in connection with surgeries that appellant underwent in August 2000. Appellant and appellee were not divorced until September 2001. The record does not reflect when appellant and his present wife were married.\nFurthermore, appellant does not contend that the trial court erred by not attributing some portion of the $247,858.15 net recovery to his present wife. Rather, he contends the trial court erred by not accepting appellant\u2019s determination that his present wife was entitled to precisely one-half of this amount, inasmuch as that is the amount that appellant gave her. Even if appellant\u2019s wife was entitled to some portion of the recovery, appellant has failed to convince that the trial court was clearly erroneous in not finding that she was entitled to $123,929.00.",
        "type": "concurrence",
        "author": "B. Robbins, Judge,"
      }
    ],
    "attorneys": [
      "Robert S. Blatt, for appellant.",
      "Kevin Hickey, for appellee."
    ],
    "corrections": "",
    "head_matter": "Leon Thomas FUSHER v. Shelly Ann FUSHER\nCA 08-117\n287 S.W3d 624\nCourt of Appeals of Arkansas\nOpinion delivered September 17, 2008\nRobert S. Blatt, for appellant.\nKevin Hickey, for appellee."
  },
  "file_name": "0158-01",
  "first_page_order": 186,
  "last_page_order": 190
}