Cite as 2022 Ark. App. 323

ARKANSAS COURT OF APPEALS

DIVISION IV

No. CV-21-472

DAVID FRAZIER

APPELLANT

V.

AMBER FRAZIER (NOW LEISTER) 

APPELLEE

OPINION DELIVERED SEPTEMBER 14, 2022

APPEAL FROM THE WASHINGTON

COUNTY CIRCUIT COURT 

[NO. 72DR-13-1408]

HONORABLE CRISTI BEAUMONT, 

JUDGE

REVERSED AND REMANDED

ROBERT J. GLADWIN, Judge

David Frazier files this one-brief appeal from the Washington County Circuit Court’s

May 5, 2021 dismissal of his petition for modification of child support. David argues that 

the circuit court erred because (1) the petition for modification sufficiently pleaded a cause 

of action and was prematurely dismissed, and (2) the dismissal of the petition improperly 

circumvents the revised family-support chart. We reverse and remand.

I. Facts and Procedural History

The parties divorced on January 17, 2013, and Amber was granted primary custody 

of the couple’s two minor children, while David was granted visitation and ordered to pay 

child support in the amount of $921 biweekly plus 21 percent of his net bonuses. On June 

11, 2018, an agreed order was entered that modified David’s child-support obligation to 

$1,001 biweekly and continued the net-bonus-obligation provision. Both the original child-
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support order and the 2018 modification order were based on the family-support chart in 

effect on those respective dates.

On September 22, 2020, David filed a petition for modification of child support 

alleging that since June 2018 there had been a material change in circumstances due to a 

change in his income—specifically as defined in the then applicable Administrative Order 

No. 10 that his income had increased and/or decreased by more than one hundred dollars 

a month.

On March 11, 2021, David filed a motion for stay of child-support payment on the 

basis that under the revised Administrative Order No. 10, which became effective July 1, 

2020, he would not be obligated to pay 21 percent of his March 18, 2021 bonus because the 

revised version annualizes the receipt of a bonus to arrive at a monthly gross income. 

Specifically, David asked for a “temporary stay of his obligation to pay twenty-one percent 

[support on his bonus] pending an order from the court” at the Zoom hearing on his petition 

that had been scheduled for April 5.

On March 19, Amber filed a response to David’s motion for stay of child support, 

noting that the annual bonuses historically received by David had been based on the previous 

year’s performance. She argued that the majority of any upcoming bonus received by David 

would have been for income that predates the filing of his motion. She requested that the 

court deny the motion or, in the alternative, order David to deposit 21 percent of any net 

bonus received into the registry of the court pending further orders.
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On March 31, Amber moved to dismiss David’s petition for modification arguing 

that application of the revised Administrative Order No. 10 would be contrary to Arkansas 

Code Annotated § 9-14-107(c)(2)(C) (Repl. 2020). Further, she claimed that because the 

petition violated section 9-14-107(c)(2)(C), it also failed to state a claim upon which relief 

could be granted and should be dismissed under Arkansas Rule of Civil Procedure 12(b)(6). 

Moreover, Amber asserted that David should be obligated to pay 21 percent of any net bonus 

received as child support despite the pending motion to modify.

On April 2, Amber filed a motion to continue, pointing out that the Zoom hearing 

set for April 5 would give David less than the ten days he had to respond. She requested 

sufficient time for him to respond and that the circuit court set a hearing on her motion to 

dismiss.

David filed a response on April 12 requesting that the circuit court deny Amber’s 

motion to dismiss, noting that it was premised on assumptions and speculation rather than 

facts in evidence. He pointed out that given the lack of discovery and evidence of specific 

income amounts, it was impossible to calculate the proper child-support amount at the time 

the motion to dismiss was filed. He asked the circuit court to allow further proceedings on 

his petition for modification. Amber filed a reply to his response on April 16.

Without holding a hearing, on May 5, the circuit court entered an order dismissing 

David’s petition for modification and denying the motion to suspend child-support payment. 

The dismissal order is brief and does not specify the basis for the dismissal. 
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After the circuit court dismissed the petition for modification, Amber petitioned for 

attorney fees. David filed a timely response objecting to an award of attorney fees. The circuit 

court never ruled on the motion for attorney fees. Nevertheless, the May 5, 2021 order of 

dismissal is a final, appealable order. David filed a timely notice of appeal on May 19, 2021.

II. Standard of Review

We recently reiterated our standard of review on an order granting a motion to 

dismiss in Brown v. Towell, 2021 Ark. 60, at 6, 619 S.W.3d 17, 20:

When reviewing a circuit court’s order granting a motion to dismiss, we treat 

the facts alleged in the complaint as true and view them in the light most favorable 

to the plaintiff. In viewing the facts in the light most favorable to the plaintiff, the 

facts should be liberally construed in the plaintiff’s favor. Furthermore, our rules 

require fact pleading, and a complaint must state facts, not mere conclusions, in order 

to entitle the pleader to relief. Further, “we treat only the facts alleged in the 

complaint as true but not a plaintiff’s theories, speculation, or statutory 

interpretation. The standard of review for the granting of a motion to dismiss is 

whether the circuit court abused its discretion. Finally, “we consider questions of law 

de novo.

Id. (citations omitted).

The sufficiency of the petition involves the application and interpretation of section 

9-14-107(c)(2)(C). This court reviews de novo questions involving the correct application and 

interpretation of an Arkansas statute. Welch v. Faulkner, 2019 Ark. App. 207, at 5–6, 575 

S.W.3d 448, 450. Thus, the circuit court’s interpretation and application of the statute is 

given no deference on appeal. Essential Acct. Sys., Inc. v. Dewberry, 2013 Ark. App. 388, at 5, 

428 S.W.3d 613, 616.

III. Discussion
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David argues that his petition sufficiently pleaded a material change in circumstances 

and adequately stated a claim on which relief could be granted. He claims that the sufficiency 

of the petition is the only question properly before this court and that the circuit court 

committed reversible error by prematurely dismissing it. For purposes of this appeal, it 

should be assumed that David’s income has “increased and/or decreased by more than 

$100.00 per month” as stated in petition. See Brown, supra. Moreover, we note that Amber 

did not dispute this factual allegation.

The only evidence of David’s income before the circuit court was his factual allegation 

in the petition that his monthly income had “increased and/or decreased by more than 

$100.00 per month.” No discovery was completed, despite the expiration of nearly eight 

months between the filing of the petition and the circuit court’s order of dismissal. Without 

evidence of David’s then current monthly income, it was not possible for the circuit court to 

calculate the correct amount of his child support at the time the order was entered.

Amber argued in her motion to dismiss that David failed to allege with specificity any 

facts that support his allegation that his income has increased and/or decreased by more 

than one hundred dollars a month; rather, he stated mere conclusions, which is contrary to 

Ark. R. Civ. P. 8(a)(1). See also McMullen v. McHughes Law Firm, 2015 Ark. 15, 454 S.W.3d 

200, wherein the Arkansas Supreme Court again stated that facts, not mere conclusions, 

must be alleged in a claim for relief. Amber’s motion to dismiss the petition for modification 

was premised on her assumptions that David’s income increased but that his child-support 

obligation would decrease under amended Administrative Order No. 10. While David’s 
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factual allegations are to be taken as true, Amber’s assumptions are given no such deference. 

Brown, supra.

David acknowledges that section 9-14-107(c)(2)(C) prohibits the modification of child 

support that is based solely on a revision to the child-support chart. The statute provides that 

“an inconsistency between the existing child support award and the amount of child support 

that results from the application of the child-support chart shall constitute a material change 

in circumstances” unless “the inconsistency is due solely to a revision of the family support 

chart.” Ark. Code Ann. § 9-14-107(c)(2)(C). Because David’s petition for modification was 

not based solely on a change in the child-support chart, it should have been fully adjudicated 

rather than summarily dismissed on Amber’s allegation that it might reduce David’s childsupport obligation. 

Because David’s petition for modification sufficiently pleaded a cause of action but 

there was insufficient evidence before the circuit court to determine the correct amount of 

his child-support obligation, we hold that the circuit court committed reversible error in 

dismissing the petition on the basis of Amber’s assumptions and the assumed impact of 

amended Administrative Order No. 10 without at least considering David’s actual income 

and investigating his claim that his income had changed to such an extent that it constituted 

a material change of circumstances. Accordingly, we reverse and remand for the circuit court 

to hold a hearing on David’s petition.

Reversed and remanded.

ABRAMSON and VAUGHT, JJ., agree.
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Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: Sarah L. Waddoups, for 

appellant.

One brief only.