2023 Ark. App. 398
Ark. Ct. App.2023Background
- Parties separated August 10, 2018; appellee obtained ex parte custody and a restraining order and placed the three children in therapy with allegations of appellant’s verbal/physical abuse and erratic behavior.
- Visitation was suspended and later limited to supervised visits; several emergency hearings followed and an agreed order initially conditioned visitation on therapy.
- Appellee repeatedly moved to compel discovery; the court twice ordered compliance and warned that failure could lead to exclusion of appellant’s witnesses and exhibits under Rule 37.
- Appellant missed deadlines, produced deficient discovery, changed counsel, and later claimed he was ill with COVID-19; the court proceeded with appellee’s case, reserved one hour for appellant’s testimony, and excluded appellant’s witnesses/exhibits as a sanction.
- The circuit court granted appellee an absolute divorce, awarded her sole legal and physical custody, imputed income to appellant and ordered child support (including retroactive support), conditioned supervised visitation on a psychological evaluation and treatment, and later awarded appellee attorney’s fees; appellant appealed.
Issues
| Issue | Plaintiff's Argument (Gadberry) | Defendant's Argument (Autumn) | Held |
|---|---|---|---|
| Denial of continuance (COVID) | Court abused discretion by denying continuance when appellant tested positive for COVID-19 | Multiple prior continuances and discovery noncompliance justify proceeding; court reserved time for appellant | Appeal barred by invited-error doctrine; appellant acquiesced and later received a continuance to testify; no reversal |
| Court issued opinion before appellant’s case | Due process violated because court ruled without hearing appellant’s full case | Court announced ruling was subject to modification after appellant’s testimony; no objection at the time | Invited-error doctrine; court did not err as ruling was provisional and appellant failed to object |
| Discovery sanctions: exclusion of witnesses/exhibits under Rule 37 | Exclusion was overly harsh; lesser sanctions available | Sanction appropriate after two orders to compel and repeated deficient responses | No abuse of discretion; exclusion upheld due to persistent noncompliance and warning in prior order |
| Retroactive child support & imputation of income | Appellant unable to work; court should not impute income | Parent has legal duty to support children; conflicting testimony; court may impute income per Admin. Order No. 10 | De novo review of child-support facts deferred to circuit court credibility findings; income imputed and retroactive support proper |
| Custody: denial of joint custody | Appellant sought joint custody | Appellee showed children’s therapy reports, safety concerns, and ad litem recommended sole custody | Court’s award of sole legal and physical custody affirmed; best-interest finding not clearly erroneous |
| Supervised visitation requirement | Supervision unnecessary; no developed argument on appeal | Appellee cited therapy records and safety concerns | Affirmed; appellant failed to develop argument and court’s order stands |
| Award of attorney’s fees and appealability | Appellant complained fees awarded without chance to examine time records | Appellee sought fees; trial court awarded fees and costs | Portion of appeal challenging fee award dismissed without prejudice because the trial court did not dispose of appellant’s counterclaim, so order was not fully final |
| Denial of motion for new trial | Appellant argued irregularity and surprise due to COVID scheduling and pre-judgment | Court had reserved time, appellant’s counsel acquiesced; no newly-discovered or unavoidable surprise shown | Denial affirmed; invited-error doctrine and failure to preserve/ develop arguments warranted affirmance |
Key Cases Cited
- Mo. Pac. R.R. Co. v. Gilbert, 178 S.W.2d 73 (Ark. 1944) (invited-error doctrine: cannot complain on appeal about action to which party acquiesced)
- Mikel v. Hubbard, 876 S.W.2d 558 (Ark. 1994) (party cannot complain when it received the relief it requested)
- Phelan v. Discover Bank, 205 S.W.3d 145 (Ark. 2005) (standard of review for Rule 37 sanctions is abuse of discretion)
- Ward v. Doss, 205 S.W.3d 767 (Ark. 2005) (standard of review for child-support orders and deference to trial court credibility findings)
- Janjam v. Rajeshwari, 611 S.W.3d 202 (Ark. App. 2020) (custody determinations are governed by child’s best interest and trial-court credibility findings)