*1 daughter lived with her other and that that a mistake was made in awarding cus- tody of M.D. to daughter’s grandparents, Dayberrys, Alyssa. Alyssa’s
who were in-laws at the Rtime. Affirmed. Alyssa acknowledged that sepa- she was husband, rated from her David Dayberry, WYNNE, JJ., HARRISON and agree. planned and that she to divorce him. She in-laws, however,
remained close to her Alyssa
who testified that doing was an
outstanding job raising grand- their
daughter, essentially that David had aban-
doned the child had no contact with Ark. her, that he was not welcome in their house, BUTLER, and that their granddaughter Robert A. M.D. played together and seemed to have
bonded. The trial court stated its letter BUTLER, Appellee. Karla Glass opinion girls that the little needed to be reunited as sisters. No. CV-14-56. Appeals Court of Arkansas. addition,
In present- the trial court was testimony ed with that Alyssa had main- Oct. tained employment during that time peri- Rehearing Denied Nov. od, working jobs; sometimes two that she brought approximately home $825
month, amounting with bills
month; that she from worked 5:50 a.m.
until p.m.; daughter 1:50 that her other daycare;
went to and that M.D. would also
go daycare. Photographs Day-
berrys’s house were introduced. There testimony Alyssa
was was welcome to
stay long there as as she needed to do so
and that she private had her own area for
herself, her, daughter living with if she custody. M.D. were awarded testimony
There was also Alyssa loving mother responsibly and that she needs, i.e.,
fulfilled the child’s Alyssa did rely upon grandparents to care for child, although
her they did help
getting daycare in the morning Alyssa
after left for had work.
Giving due deference to the trial court’s
superior position to evaluate testimony interest,
and determine best M.D.’s we are
not left with a definite and firm conviction *2 (2)
contempt, analysis its of a material (3) circumstances, analysis its offset, of appellant’s claim for applying unclean hands to the offset analy- *3 sis. We affirm.
I. Procedural History Appellant filed for divorce on October 10, 2007, appellee counterclaimed, ask- custody for of their two children and for appellant responsible to be for all mari- By 14, tal temporary debt. of July 2008, appellant was ordered to pay $2500 alimony 12support, in and child as well as bills, certain including the mortgage, insurance, homeowner’s and medical insur- ance for the children.
Appellant filed a motion for reconsidera- 23, 2008, July tion on claiming that he had presented testimony that he makes no in- come; however, if the circuit court had used setting support, income in then the amount ordered was above the amount listed in Administrative Order No.
An amended temporary order was filed 15, 2008, on September ordering appellant in temporary alimony to $2500 Jeremy Lowrey, B. appellant. 1, for 2008, support July child effective with designated as support child $1666.67 Smith, PLC, Horan, Cohen & Fort alimony. He was further or- $833.33 Smith, AR, Horan, by: T. Matthew for paying dered to continue the bills. The appellee. that, circuit court regardless ap- noted pellant’s testimony, he had continued to GLADWIN, Judge. ROBERT J. Chief pay alimony and the bills as ordered. | County Sebastian Circuit Court tThe 25, 2013, 19, 2008, granted judgment September September on On Sup- the Child (CSEU) Karla port Butler the amount of Enforcement intervened Unit $52,471.99 arrearages alimony, for in- and filed a motion contempt against for payments, support; appellant claiming surance and child de- that he was in arrears appellant’s request support nied for a reduction in in child in the amount $5000.01. offset; 29, 2008, September and claim for and found On filed a CSEU him appellant contempt, ordering modify, claiming appellant to motion to comply within six months or be incarcerat- to pay per had been ordered month appeal, appellant ed. On support, wage- child and asked for trial by finding assignment court erred him in order. This motion was modi- 6, 2008, September to reflect bills in violation of the October fied on temporary 2008 amended order. In- child-support obligation of designated bill, real-estate cluded were the internet $1667.67.1 insurance, for medical and ali- taxes the circuit court On December mony April, May, for and June 2009. Fur- payments that the continue as or- ordered ther, that she was forced appellee alleged dered, “any” plus an additional $500 mortgage payments car and arrearage. The court found insurance on both. She also claimed that | (¡current support through on child No- sup- had failed to Further, the court or- vember insurance, port, |4medical alimony pay- payments dered that *4 property as called for in the settle- ments directly by made to her wire transfer. 2010, 18, February ment and decree. On any “payor” The court also ordered that attorney contempt ad litem filed a child-support payments appel- deduct from against appellant nonpayment motion for lant’s of fees in the amount of $1239.58. 11, 2009, On June filed a motion CSEU 22, 2010, child-support arrearage April appellant for citation for a On filed a coun- 20, alimony, hearing since December 2008. A termotion for abatement of reduc- $7500 22, 2009, September support, contempt, was set for and on tion in child and for a in in- day, granting claiming change that decree was filed a substantial his awarding custody a divorce and parties alleged appellee come. He that contacted A appellee. support property-settle- party complain third online about his Also, agreement par- company. alleged ment was attached. The he that she had agreed appellant that thwarted visitation communication ties would $1282 per support beginning July month child with his child. The child-support 2009. amount was agreed September An order was filed 16, monthly August decrease to on $894 23, 2010, appellant wherein was to make an 2009, eigh- when oldest child turned $15,648 payment immediate to CSEU Alimony per teen. was set at month $1000 support July for child and insurance from beginning July through May 2028. through July 2010. He was also to They any agreed that modification would in outstanding attorney’s fees $3000 be on a appel- based substantial attorney to the ad litem. In $1240 30, lant’s income before June 2012. Appel- exchange, he begin alimony was lant was also to reimburse $250 2011, payments May until when he would per month for medical insurance. twenty-two then owe for months of alimo- 15, 2010, January appellant’s lawyer On ny. agreement The was for him to an
filed a motion to withdraw because his time, per extra month at mak- that $1000 paid client had not his or fees those ing payments per month from $2000 litem, appointed ad who had been on Janu- May through February 2013. In 8, ary 2009. An order was entered allow- go March back to paying would January withdrawal on 2010. per through May month 2023. All $1000 28, 2010, January On previous conflicting filed a orders not with the contempt motion for for appellant’s agreement stayed Appellee failure new effect. recognize We one-dollar difference in 2008 order and the October 2008 motion. September the amount as set forth clearly against alimo- circuit court is preserved argument pre- her ponderance ny April-June for evidence. 22, 2012, appellee filed a con- May On Appellee appel claims because alleging tempt petition lant has not been imprisoned yet for his support, behind in child $3000 comply, failure to the order not final and insurance, $44,000 in alimony. On appealable. Appellant replies that Ark. 27, 2012, filed a counter-
August 2(a)(13) (2014) R.App. P.-Civ. addresses he was entitled alleging claim to a this issue order appealable. and that the alimony and modification in asked for a 2(a)(13) Rule appeal may allows that an decrease in child as well. He also support taken from a circuit court to the Arkansas against moneys asked for a set-off owed Supreme Court from a civil-contempt or him made to repairs for he had the marital der, imposes which sanction consti home. tutes the final disposition contempt
|¡After
9, 2013,
July
hearing
on
an matter.
25, 2013, deny-
September
was filed
Eberhard,
Henry v.
Ifiln
ing appellant’s motion
reduction in ali-
*5
(1992),
832 S.W.2d
our supreme
467
court
mony
any
disallowing
Judg-
and
offset.
suspension
stated that
of a sentence for
ment was
to
in the
awarded
contempt
complete
is in effect a
remission
$52,471.99.
amount of
The circuit court
of the
the
contempt.
court not-
noted that
had unclean hands for
appellant
ed that
part
when
of
sentence is sus-
the
paying alimony
support
not
dur-
pended,
portion
suspended
that was
is
occupied
the time
home.
remitted,
remaining portion
but the
of the
The circuit court
as follows:
found
contempt
Henry,
still exists.
309 Ark. at
The Plaintiff is ordered and directed to
supreme
832
at 470. The
S.W.2d
comply with all Orders
the future and
partial suspension
court held that a
of a
judgment
if the
is not satisfied
contempt
ap-
sentence did
render the
period
within a reasonable
of time not to
peal
supreme
moot.
Id. The
court noted
(6)
exceed six
from the
months
date this
that a
suspension
conditional
was a “mere
entered,
Body
Order
Attachment
postponement
contempt
rather than
shall issue
the Plaintiff shall
Here,
a remission.”
because the cir-
County
incarcerated in
Sebastian
cuit court issued the
and found
judgment
Detention
such time
Center until
as he
contempt, sentencing him to
brings
obligations
his
current all of
un-
jail
if
satisfy
judgment
time
he did not
previous
der the
and current Or-
Order
within six months
the date of the
from
ders of this Court.
order,
postpone-
we hold that there was a
appeal timely
This
followed.
ment rather
than a remission
con-
final,
tempt and a
order
appealable
result-
Contempt
II.
ed.
contempt protects
rights
Civil
private
compelling
Appellant
inability
of
that his
parties by
compli
argues
pay
contempt
court
to
is a
for his
ance with orders of the
made for the
defense to
Ward,
pay
Griffith,
benefit of
failure to
v.
private parties.
alimony.
Ward v.
Griffith
(1955) (In
2014
225 Ark.
340
Ark.
591 family, clearly car and from and incurred debt aside unless erroneous. Stehle v. $98,000 against unpaid portions Zimmerebner, 291 S.W.3d house, mortgage (2009); 52(a) on the and the failure of a see also Ark. R. P. Civ. prior per business that he owes $2000 In determining whether the cir- (2) on; month was able to ten Appellee put cuit judge clearly regard erred with to a percent down on a new house and has factual finding, appellate may court |9had $6,000 increase; annual-pay The look to the whole record to reach that parties contemplated an increase in his Stehle, decision. 375 Ark. at when income the 2010 settlement was en- S.W.3d at A finding of fact tered, they agreed or would not have clearly erroneous when the reviewing him pay make more than his available court, evidence, based on the entire per income. He offers to month left with the definite and firm conviction alimony. that a mistake has been made. Therefore, Incomplete “a review of the Appellee argues that the may evidence and record place take First, of 2010 is not modifiable. part appellate review to deter- filed his motion after the June mine whether the trial court clearly deadline; second, he had an opportunity erred either making finding of fact 2010 to modify obligations and did not failing or in to do so.” Id. at so; third, do his income has not de- S.W.3d at 580. since the in Sep- creased last order filed tember 2010. Appellant original contends that the di- agreement provided vorce-settlement argues appellant’s duty
She that it was he was to make payments stepmoth- to his to make clear the reasons for the first two er for the continued use of the residence at settlement orders. She that he 6512 Park Avenue. vaguely possible cannot allude to improvi- lived there and was to maintain the resi- dence and demand that she surrender dence in good repair. condition and He what she contracted to receive. argues that she did not keep up her end of alimony, contracted to and it is not *7 the contract regard- and that some issues parameters modifiable outside the ing the condition of the up house came in contract. The contract allowed modifica- divorce, the and the contract resolved tion based on his income. appel- them, making responsible her for some lant admitted that his income had not unrepaired items in the house. These changed. We hold that there was no gutters, skylight, items included roof and abuse of discretion in finding appel- that fence,, and damage to the wall. He com- lant failed to meet his burden of proof and plains pool repairs about the that appellee denying appellant’s request for a modifica- damage had made that left in the amount in alimony. tion $10,000; left she with fixtures to IV. house, dishwasher, including light the Offset fixtures, fans; ceiling that he would Duncan, In Duncan v. fix have to the furnace because 833, 838, at 383 S.W.3d our su it; did not maintain that he had to preme court held as follows: brought up have trash bins in to clean Although equity cases are reviewed de trash that left. novo, open and the whole case is for review, the findings by of fact the circuit He that even if the circuit court judge equity cases are not to be set found appellee’s version of events more argues that the evidence was credible, Appellee that she provided the decree good repair condition and needed be- keep things swimming pool would that the argues, not done. He repair, divorce, and this was had fore the but that let therefore, not issue. credibility is at necessary and that the lapse the insurance that, received her ali- He claims had she cannot repairs were not made. it, she able to for mony and been repairs. Ap- for those now seek an offset then, responsible for it so would have been testimony pellee refers to other responsible for it now. she should be the harsh summer and the conditions of gutters. original carpet plea for Appellee appellant’s claims that evidence. set-off fails for lack of sufficient cases, reviewing equity appel In The circuit court wrote: novo review of the late courts conduct a de re- respect plaintiff’s 10. With finding by record and do not reverse a to be quest repairs repairs for made and clearly circuit court unless it is erroneous made, the notes that a number of court clearly against preponderance or tickets, hotel these items include airline Chastain, 2012 Ark. evidence. Chastain v. expenses, expenses, rental car which In give 495. We also S.W.3d clearly repairs are to the Arkansas judg due deference to the circuit court furthermore, the evidence is home credibility of the witnesses. of the real conflicting as to the condition Given our of review and the cir standard parties home at the time the estate and evaluation of the wit cuit court’s evident independent and there was no separated credibility, we hold that there ness’s was introduced into photograph witness or in the circuit court’s order no clear error sep- at depicting evidence conditions denying an offset. aration or the time of the divorce. As above, Agreement mentioned under the Plaintiff his step- made with |12V. Hands Unclean mother, solely responsible he was to be doctrine bars re The clean-hands any upkeep for and maintenance repairs, guilty improper lief to those who are home; therefore, on the he would have they in which seek conduct the matter responsible any upkeep, been Mtg. Corp. Hop relief. Nationsbanc until the time up care and maintenance kins, 297, 190 Ark.App. S.W.3d no evi- separation. Again, there is dence of the condition of the real estate separation. and home at the time of Appellant contends that this doc carpet The evidence is clear that the *8 him apply trine does not to because he was ill original, the fence was constructed alimony to and because his unable onset, irrigation
from the
there was no
by
driven
disobedience.
actions were not
system
existing
to ensure the life of the
Appellee argues
that
came to
original landscaping and the heat and
hands,
court with unclean
and he should
air-conditioning
repair
was in ill
while
compliance
have
with the court’s
shown
in the home.
the Plaintiff
resided
orders or at least
that he tried to
Therefore,
above,
based on all of the
something. She claims that his debts in
off-
Court denies the Plaintiff’s claim for
business and to his mother should not
against
mortgage
set
for the
the debt that he owes her. She
above
paid
repairs
and
re-
payments, repairs
not even
points
out that
did
of
and lack of
quired
proof
for lack
good
offers as a show of
evidence.
he now
Again,
deference to the
a
giving
ability
faith.
due
contemnor’s
to purge
Second,
of the
judgment
credibility
contempt by
court’s
payment.
circuit
witnesses,
give
we hold
there was no condition
that would
rise to the sanc-
error
in the circuit court’s order.
tion necessary
finality
clear
of this order—
yet
failure to pay
occurred.
—has
Affirmed.
Appellant argues that this
a
fact
WALMSLEY, GLOVER,
final
by
order
reference to the 2010 Re-
VAUGHT, JJ., agree.
WHITEAKER
porter’s Notes to
2Rule that State
a
“when
J.,
PITTMAN dissents.
contempt
suspended
sanction is
condition-
ally
time,
for a specific period of
our su-
PITTMAN, Judge,
JOHN MAUZY
preme court has concluded that the sus-
dissenting.
pension amounts
a postponement
This case should be dismissed because
remission,”
contempt rather
than a
order of
is not final. Al-
contempt
postponed
order with
“[a]n
sanctions
though it is true
Ark. R.App.
P.-Civ.
is appealable.”
to consider the
2(a)(13) permits
appeal
an
from a civil
present
containing
case as
order
sanction,
contempt
imposes
order that
a
sanctions,
postponed
we
would have
only
is so
an
this
where such
order consti-
construe the trial
order
provid-
court’s
the final
of
disposition
contempt
tutes
imprisonment
for immediate
upon fail-
The
appealed
matter.
is not a final
pay,
regard
ure to
without
to whether the
contempt
disposition
matter in this
failure to pay was willful and
without
provides:
The order
case.
hearing
ability
to determine
Such
Court finds Plaintiff in contempt
[T]he
a construction
assume
would
that the trial
judgment
and awards the Defendant
in court intended to violate appellant’s due-
the sum set forth
The Plaintiff
above.
is process rights by depriving him of a hear-
comply
ordered and directed to
with all
ing on the
willfulness
issue of
before im-
|
Orders
the future
that if the
iain
imposed, Griffith,
v. Griffith,
prisonment
judgment
is not satisfied within a rea-
(1955),
225 Ark.
to reverse the trial court’s of con- finding. based
tempt upon that We cannot First, court, it is trial
do so. for the court, appellate initial findings to make