Maxwell v. Maxwell

2022 Ark. App. 51

641 S.W.3d 646

Addam MAXWELL, Appellant

v.Lori MAXWELL, Appellee

No. CV-20-579

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered February 2, 2022

Kezhaya Law, PLC, Bentonville, by: Matthew A. Kezhaya, for appellant.

Lori Maxwell, pro se appellee.

LARRY D. VAUGHT, Judge

This is the third time that Addam Maxwell has appealed the Benton County Circuit Court's determination of a child-custody and child-support dispute between Addam and his ex-wife, Lori Maxwell, regarding their two sons, Nate and Mitch, both of whom are now adults. Because the circuit court has failed to follow our mandate, we reverse and remand.

Lori and Addam Maxwell were married on July 14, 1990. They have two sons, Nate (born in May 1999) and Mitch (born in June 2001). The parties were divorced on January 25, 2017, and the court awarded joint custody of their sons pursuant to a property-settlement agreement. In September 2017, Nate began living full time with Addam. He lived with Addam until May 22, 2018. In January 2018, Mitch also began living full time with Addam.

In January 2018, Addam petitioned the court for a change of custody and assessment of child support. After conducting a hearing on the matter, the court entered an order on August 21, 2018, in which it denied Addam's motion to modify custody. It also assessed back child support for three separate periods, finding that Addam owed Lori $399 for the period between November 10, 2017, and March 2, 2018; that Lori owed Addam $1,615 for the period between March 16 and May 25, 2018; and that Lori owed Addam $1,232 for the period between May 25 and August 6, 2018. The court further ordered that Addam pay Lori $431.75 biweekly until Mitch graduated high school or turned eighteen, whichever occurred later.

Addam appealed, and in Maxwell v. Maxwell , 2019 Ark. App. 229, 2019 WL 1647991, we dismissed the appeal for lack of jurisdiction because the order was not final. It failed to dispose of a cross-complaint filed by Lori. That issue was subsequently resolved, and we addressed the merits of Addam's arguments for reversal in Maxwell v. Maxwell , 2020 Ark. App. 23, 593 S.W.3d 499. We held that the custody issue was, by then, moot because Nate and Mitch had both reached the age of majority, but we reversed and remanded the court's child-support order because the court failed to reference the family-support chart and failed to make necessary findings of fact. We specifically noted that

[b]ecause Arkansas Code Annotated section 9-14-105 (Repl. 2015) allows a parent having physical custody of a minor child to petition the court to require the noncustodial parent to provide financial support for the minor, determinations of who had physical custody of one or both boys during the relevant time periods may be dispositive, yet the court made no findings as to this issue.

Maxwell , 2020 Ark. App. 23, at 6 n.3, 593 S.W.3d at 503 n.3.

Shortly before our mandate was filed, Lori petitioned the circuit court to hold Addam in contempt for nonpayment of monthly alimony.

Our mandate, which was filed on February 19, 2020, directed Lori to pay Addam $766.65 in appellate costs.

On remand, the circuit court instructed both parties to prepare and submit proposed findings of facts and conclusions of law to dispose of the child-support issue. The court did not schedule a new hearing or take additional evidence. A dispute arose over whether the proposed child-support orders should be calculated on the basis of Lori's established income at the time of the hearing or whether the court would receive evidence regarding a raise that Addam claimed Lori had received during the two-year interim between the original hearing and the remand. The circuit court settled the issue via email, advising the parties that "[a]t this point I am dealing with the order on remand which only addresses the child support issue up to the time of the hearing before appeal. If we need to deal with child support post appeal, that will be for another time."

Addam then filed a petition for back child support to be calculated using Lori's current income rather than the income level she had prior to the appeal. The court adopted Lori's proposed findings of fact and conclusions of law and, in so doing, denied Addam's petition. The order provides for child support that is calculated using Lori's income from the time of the original hearing. The order also assigns all blame to Addam for Lori's dysfunctional relationship with their son Mitch.

In the order, the court found that Nate lived with Addam from September 2017 until May 2018 and that Mitch moved in with Addam in January 2018 and never moved out, but it then set Lori's child-support obligation as starting to accrue in March of 2018, months after Addam had become the custodial parent. The court also found that Addam owed Lori child-support arrearages for November 10, 2017, to March 2, 2018. Notably, this language was taken from the prior order that we reversed. The order also granted Lori several offsets to be subtracted from the amount she owed Addam. These offsets were based, in part, on Lori's "stipulation" that she had, by that point, paid part of her child-support obligation to Addam. These amounts were then deducted from Addam's judgment for back child support.

Despite telling the parties in an email that it only planned to address matters up to the date of the original hearing date—and failing to take any additional testimony or evidence—the court did, in fact, address these issues in its order. It required Addam to pay child support for Nate on the basis of events that took place posthearing. It also offset from Lori's child-support obligation the amount of alimony that it found Addam should have paid since the hearing based on bonuses. The order did not mention the appellate costs we mandated Lori to pay.

Addam timely moved for a new trial. He argued that the court's order understated Lori's child-support obligation by calculating it based on Lori's salary prior to her raise. Addam also argued that Lori's child-support arrearage was erroneously not assessed for seven months for Nate and two months for Mitch, during which time Addam was the custodial parent. Next, he argued that he was entitled to prejudgment interest going back to the first order of child support. He also argued that many of the court's findings were not supported by evidence in the record and that he was entitled to notice and an opportunity to be heard before the court could make findings related to the offsets or the bonuses. Addam also claimed that it was an error to renew the finding that Addam was liable for a child-support arrearage as to Nate because Nate was living with Addam at the time, and he claimed that this finding violated our mandate. Additionally, Addam argued that the court should not have adopted Lori's assertion that Addam was to blame for her dysfunctional relationship with Mitch, which was only relevant to the moot child-custody issue.

A few days later, Addam amended his motion to include an argument that the order should have included judgment against Lori for the costs that we assigned in the mandate.

No order was entered on Addam's motion for a new trial within thirty days, and Addam filed a timely appeal.

Before we may address the merits of this appeal, we must again analyze whether there is a final order granting us jurisdiction. At its outset, this case was an interlocutory appeal brought under Rule 2(a)(2) of the Arkansas Rules of Appellate Procedure–Civil because, at the time of the appeal, Lori had filed—and the court had not yet decided—a motion for contempt against Addam on a collateral issue. Addam has supplemented the appellate record with an agreed order filed July 14, 2021, which states that the court fully resolved all issues related to Lori's contempt motion. Therefore, there is no remaining bar to finality, and we have jurisdiction to decide this appeal.

On appeal, Addam contends that the circuit court's failure to include in its order a judgment against Lori for the $766.65 that we mandated she pay Addam for appellate costs constitutes reversible error. It is true that a circuit court has no authority to negate or modify our award of appellate costs or fees. Nat'l Cashflow Sys., Inc. v. Race , 307 Ark. 131, 817 S.W.2d 876 (1991) (reversing a circuit court's order awarding attorney's fees for appellate work where the appellate court mandate did not award such fees). The Arkansas Supreme Court specifically stated that a circuit court may not "in any manner intermeddle with [the appellate court's mandate] further than to execute [it], and settle such matters as have been remanded, not adjudicated" by the appellate court. Id. at 133, 817 S.W.2d at 877 (quoting Fortenberry v. Frazier , 5 Ark. 200, 202 (1843) ). Here, though, our mandate awarded costs to Addam and required no further action by the circuit court. The mandate was effective the day it was entered. So while the circuit court's failure to include the appellate costs in its order on remand is not reversible error, Lori remains obligated, pursuant to our mandate, to pay Addam the appellate costs we assessed.

Next, we address Addam's contention that the circuit court failed to follow our mandate when it found that Nate began living with Addam in September 2017 and Mitch began living with Addam in January 2018 but then assessed child-support arrearages against Addam running through March 2018. Addam argues that it was reversible error for the court to charge him with child support for a period during which the court acknowledges that he was the custodial parent. In our previous opinion, we directly addressed this issue in footnote 3, noting that Arkansas Code Annotated section 9-14-105 (Repl. 2015) allows a parent having physical custody of a minor child to petition the court to require the noncustodial parent to provide financial support for the child. We indicated that "determinations of who had physical custody...