Sutton v. Falci

683 S.W.3d 593

2024 Ark. App. 46

Emily SUTTON, Appellant

v.Jordan FALCI, Appellee

No. CV-23-213

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered January 24, 2024

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72DR-21-259], HONORABLE JOHN C. THREET, JUDGE

Osborne & Wilmoth Law Firm, Fayetteville, by: Sammi Wilmoth, for appellant.

Cullen & Co., PLLC, by: Tim Cullen, for appellee.

CINDY GRACE THYER, Judge

₁Appellant Emily Sutton appeals an order of the Washington County Circuit Court that granted appellee Jordan Falci’s motion to modify the couple’s child-custody arrangement. On appeal, she argues that the court erred in multiple ways when it entered a default order effectuating the change of custody. Because we are unable to reach the merits of her arguments, we must affirm.

Emily and Jordan were divorced by a decree of the Washington County Circuit Court entered on June 10, 2022. The decree awarded joint custody of the couple’s child on a "week-on, week-off" basis. On October 28, Jordan filed a motion to modify custody, for support, and for contempt. He alleged that there had been material changes in circumstances that caused it to be in the child’s best interest to change custody. Jordan set forth a number of allegations supporting his request for modification, including claims that Emily had refused ₂to coparent in a reasonable manner, refused to communicate with him in a healthy manner, and failed to follow the court’s visitation schedule since the divorce decree had been entered. He requested that the court modify the joint-custody arrangement and grant him primary physical and legal custody of their child subject to Emily’s reasonable visitation.

Jordan also asked that Emily be held in contempt for failing to do "several things" she was ordered to do in the divorce decree. Specifically, he alleged that she had been ordered to refinance her car yet failed to do so arid that she missed payments on it in the interim, causing harm to Jordan’s credit. Emily answered Jordan’s motion, generally denying each paragraph but offering no specific response to any allegation.

On January 19, 2023, Jordan filed a motion to compel discovery. He noted that he had propounded written discovery requests to Emily on December 5, 2022, making her responses due by January 9. As of that date, and despite Jordan’s counsel’s good-faith attempt to have Emily respond to his discovery requests, Emily had not tendered her responses. Jordan therefore asked the circuit court to order Emily to produce complete responses to his discovery requests within ten days. The circuit court entered an order on the same day Jordan filed his motion, directing, Emily to respond to Jordan’s written discovery requests on or before January 25, 2023.

When Emily failed to respond to this order, Jordan filed a motion for sanctions on February 1. He asked the court to strike all of her pleadings, and prohibit her from introducing any evidence at trial pursuant to Arkansas Rule of Civil Procedure 37(b)(2)(B) & (C). The circuit court entered an order the next day in which it granted Jordan’s requested ₃relief, struck Emily’s answer to Jordan’s motion to modify custody, and directed that she be prohibited at trial from opposing Jordan’s claims as set forth in his motion for modification of custody. In addition, the court awarded Jordan $750 in attorney’s fees.

On February 12, Emily filed a "Motion to Set Aside Default Order." In this motion, she asserted that she had never willfully failed or refused to comply with the court’s orders, "other than the fact that she could riot timely respond accordingly due [to] confusion as to when and how her responses were due and when exactly she received the interrogatories from her council [sic] by email." She claimed that she had "now answered and tendered to [Jordan’s] attorney [her] answers to interrogatories." Emily argued that she should be entitled to her day in court and that the current custody arrangement of one week on, one week off was working very well and should not be altered. Finally, she requested a hearing on the matter.

[1] The court entered an order the next day, February 13, captioned "Default Order to Modify Custody, Award Support, and For Contempt." In this order, the court made the following relevant findings:

4. That on October 28, 2022, [Jordan] caused to be filed with this Court a Motion to Modify Custody, for Support, and for Contempt alleging that there had been a material change in circumstances and that due to such it is in the parties’ minor child’s best interest for custody to be modified. [Jordan] asked to be awarded primary custody of the parties minor child, for child support to be awarded to him and for [Emily] to be found in contempt.

5. On February 2, 2023, this Court entered an Order for Sanctions striking from the record [Emily]’s "Answer to Motion to Modify Custody, for Support and for Contempt due to [Emily]’s failure to abide by this Court’s Order to Compel entered January 19, 2023.

₄6. As a result, [Emily] currently stands in default.

7. Upon review of the pleadings on the record this Court finds that a material change in circumstances has occurred.

8. That it is in the parties’ minor child’s best interest for the joint custody arrangement to be modified. [Jordan] is awarded primary physical and legal custody of the parties’ minor child.

….

18. That [Emily] is found to be in contempt for failing to refinance her vehicle and removing [Jordan] from it as ordered in the Decree of Divorce. [Emily] shall do so within thirty (30) days of this order being entered.

Emily filed a timely notice of appeal from this order on March 3, 2023.¹

[2–4] Ordinarily, we perform a de novo review of child-custody matters, but we will not reverse the circuit court’s findings unless they are clearly erroneous. Hamerlinck v. Hamerlinck, 2022 Ark. App. 89, at 12, 641 S.W.3d 659, 665. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. House v. House, 2023 Ark. App. 477, at 7, 678 S.W.3d 824. While our review of such cases is de novo, however, "[d]e novo review does not ₅mean that we can entertain new issues when the opportunity presented itself for them to be raised below, and that opportunity was not seized." Jones v. Jones, 320 Ark. 449, 453, 898 S.W.2d 23, 25 (1995); see also Roberts v. Yang, 2010 Ark. 55, at 6, 370 S.W.3d 170; Roberts v. Roberts, 2009 Ark. 567, at 8, 349 S.W.3d 886; Clary v. Ark, Dep’t of Hum. Servs., 2014 Ark. App. 338, at 5, 2014 WL 2443010.

Emily’s overarching argument on appeal is that the circuit court "erred in entering a default order modifying custody." Under this main heading, she raises multiple sub-points, contending that the circuit court erred by (1) entering a default order modifying custody due to a lack of evidence; (2) entering a default order modifying custody because it did not consider the best interest of the child; (3) entering a default order modifying custody because Emily was denied due process as a result of the court’s failure to comply with several rules of civil procedure; (4) entering a default order because the order grants relief that was not prayed for in Jordan’s motion for sanctions; and (5) holding Emily in contempt on an unverified motion not supported by facts. We are unable to reach the merits of any of Emily’s arguments, however, because she failed to raise any of them before the circuit court.

[5] Emily first argues that the court erred in granting the change of custody in the absence of evidence that there had been a material change in circumstances. She complains that Jordan’s motion for modification of custody consisted of nothing more than a "laundry list of vague complaints that he … failed to prove." She also argues that Jordan’s motion was not verified or supported by any tangible evidence, and the claims he raised therein did not rise to the level of a substantial change in circumstances.

₆As Jordan points out, however, Emily never challenged the "quality or quantity of the evidence in the trial court." We agree. As noted above, her answer to Jordan’s motion for modification of custody set forth only general denials of the allegations in Jordan’s motion. In her "Motion to Set Aside Default Order," filed after the court had entered its order granting Jordan’s motion to strike her pleadings, Emily asserted only that she had never willfully failed to comply with the court’s orders, that she had not responded to discovery requests only because she was confused about when and how to do so, and that the current custody arrangement was working and should not be amended. After the court entered its order granting Jordan’s motion for change of custody, Emily did not file a timely postruling motion under any of the applicable rules of civil procedure that allow for modifying or setting aside a court’s order, wherein she could have raised a challenge to the sufficiency of the evidence supporting the court’s ruling.

In Buskirk v. Buskirk, 2018 Ark. App. 417, at 4–5, 559 S.W.3d 285, 288, this court declined to consider a father’s argument that the circuit court misapplied the burden of proof that is required for a modification of child custody because the father did not raise that argument below. Citing Rice v. Rice, 2016 Ark. App. 575, at 8, 508 S.W.3d 80, 86, the Buskirk court noted the well-settled rule that "[a] party is bound by the scope and nature of the arguments made at trial…. Because this allegation of error was not raised and decided below, we are precluded from reaching its merits now." Likewise, in this case, because Emily failed to raise her argument regarding the sufficiency of the evidence supporting a material ₇change in circumstances before the circuit court, she is, barred from raising it on appeal to this court.

[6] Emily next argues that the court erred because it did not consider the best...