Williams v. Williams

2020 Ark. App. 204

599 S.W.3d 137

Mark C. WILLIAMS, Appellant

v.Amy Minton WILLIAMS, Appellee

No. CV-19-163

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered April 1, 2020

Rehearing Denied May 6, 2020

Robert S. Tschiemer, Mayflower, for appellant.

Jeremy B. Lowrey, for appellee.

N. MARK KLAPPENBACH, Judge

This is an appeal from decrees granting the appellee, Amy Williams, an absolute divorce from the appellant, Mark Williams. The circuit court awarded primary custody of the couple's two minor children to Amy and allowed Mark supervised visitation. Mark appeals the decrees, alleging that they should be reversed because the circuit court clearly erred by awarding custody to Amy; by ordering that he have only supervised visitation; by awarding alimony to Amy; by denying his petition to hold Amy in contempt; and by failing to assign a value to a limited liability company that Amy started during their marriage. We affirm the order awarding custody, but we dismiss the remaining issues without prejudice for lack of a final order.

I. Facts and Procedural History

Mark and Amy were married on April 27, 2002. They lived in Mountain Home, where Mark was self-employed as a physician.

Amy, an occupational therapist, primarily stayed at home to care for the couple's two minor children, SW, now fifteen years old, and JW, now eleven years old. On September 8, 2016, Amy filed a complaint alleging that she was entitled to an absolute divorce because, during the marriage, Mark "was guilty of rudeness, contempt, and studied neglect, systematically and continuously pursued to such an extent that it made it impossible for [Amy] to live with [him]."

Mark's poor health and use of prescription medication played a role in the breakdown of the marriage, and his erratic behavior was a topic throughout the course of the divorce proceedings. Contemporaneously with the complaint for divorce, Amy filed a petition for an emergency ex parte order awarding her temporary custody of SW and JW. She alleged that Mark "forgets to feed the children while they are in his care" and was not otherwise providing for the children's "emotional and physical needs."

The petition also related an incident that occurred just days before Amy filed the complaint. According to Amy, Mark took JW and a friend on a boat ride on Lake Norfolk at 8:00 pm on a school night and, despite Amy's repeated efforts to contact him, did not return until he was escorted home by the Arkansas Game and Fish Commission at 2:30 the next morning. Significantly, Amy alleged that despite the lateness of the hour and other circumstances, Mark did not appear to understand her concern about where he had been with the children.

The circuit court granted Amy's request for temporary custody in an emergency ex parte order on September 8, 2016, and heard testimony on the allegations on October 4. On October 20, the court entered a temporary order that "enact[ed] a no contact order between the parties" and awarded temporary custody to Amy and supervised visitation to Mark.

Very shortly thereafter, on November 14, Amy filed a "petition for contempt and relocation," alleging that Mark violated the no-contact order by continuing to send her text messages and by appearing at three visitation exchanges. She further alleged that Mark harassed her brother––with whom she had been living––by phone and text and allowed unapproved supervisors during his visits with the children. Regarding relocation, Amy requested to move to Jonesboro with her brother, where she claimed to have two job opportunities and additional family who would provide support for her and the children. After hearing testimony, the circuit court entered an order on January 9, 2017, that found Mark in contempt and ordered him to a suspended term of three days’ confinement in the county jail. The circuit court further ordered him "not [to] be at exchanges of the minor children"; to not come "within fifty (50) feet of [Amy]"; and to otherwise have no contact with Amy. The circuit court did not rule, however, on Amy's request for relocation to Jonesboro.

Amy subsequently filed several more petitions to hold Mark in contempt. In summary, she alleged that Mark failed to comply with the court's order to not be present when the children are exchanged for visitation; that he again contacted her in violation of the no-contact order; that he terminated health insurance in violation of the standard restraining order; that he failed to submit to a court-ordered mental evaluation; that he disposed of some of the personal property they acquired during the marriage; and that he used marital funds to acquire a new truck. Several of these petitions remain pending.

Mark also filed a petition that sought to have Amy held in contempt on two grounds. First, he alleged that Amy moved to Jonesboro in February 2017 in violation of the court's standard restraining order, which provided that Mark and Amy were "enjoined and restrained from causing ... the minor children ... to be removed from the jurisdiction of [the] [circuit] court." He further alleged that Amy had "intentionally and repeatedly denied [him] visitation with his children."

The allegations in Mark's petition for contempt were among several issues that the circuit court addressed in three decrees that it entered after the final hearing in the case. The first decree, entered on May 9, 2018, simply granted Amy an absolute divorce "based upon eighteen (18) months of continuous separation," and reserved the remaining issues, including custody, support, division of marital property, and "issues of contempt pending at trial."¹

The second order, entered on October 30, 2018, addressed the bulk of the remaining issues. In relevant part, the circuit court awarded primary custody of the children to Amy, finding that

the evidence before the court shows that Dr. Williams's behavior is unpredictable, and ranges from calm and peaceful to aggressive and threatening. He can be rational or irrational. As the court witnessed at trial, Dr. Williams's behavior can change without warning. To complicate matters, Dr. Williams takes a number of medications that affect his ability to safely drive a vehicle or properly supervise his children.

Accordingly, the circuit court found that it was "without question" that "[Amy] can provide the more stable, appropriate home and environment for the minor children" and that Mark's "visitation with his children must be supervised."

The circuit court also awarded alimony and child support to Amy, setting temporary monthly amounts of $1,000 and $741.18, respectively, until "such time as a supplemental hearing is held or stipulations are presented to the court" regarding Mark's income. The court further ordered that the couple's remaining personal property, in the absence of their written agreement otherwise, would be sold at public auction at a time and place of their choosing and the proceeds of the sale, after payments of costs and debts, would be equally divided between them. The court also equally divided the assets in the couple's whole-life insurance policy, retirement accounts, and bank accounts, including the money in the bank account that Amy established for her limited liability company, Amy Williams, PLLC.

Finally, the circuit court's October 30 decree addressed some of the pending motions for contempt. First, the court denied Mark's petition to hold Amy in contempt. The circuit court found that Amy did not willfully violate the standard restraining order by moving to Jonesboro because the Fourteenth Judicial District has inconsistently defined the term "jurisdiction" as it is used in the standard order. The circuit court also ruled that Amy would not be held in contempt for failing to comply with the temporary visitation order, finding that the evidence on that issue was "in dispute." Finally, the circuit court denied Amy's request to hold Mark in contempt for failing to maintain health insurance for her and the children, ordering instead that he had forty-five days to provide proof that the children's insurance had not been canceled.

The circuit court entered its last decree on February 11, 2019, in which it awarded back-due child support and retroactive alimony according to the temporary amounts set forth in the decree entered on October 30. The circuit court also revisited its ruling concerning the division of the couple's remaining real and personal property. Specifically, the court found that "[t]he parties have not agreed on division of their remaining personal and real property, nor have they agreed on an auctioneer." Consequently, the circuit court appointed an auctioneer to conduct "an absolute auction of the parties’ real and personal property as set out in the decree," and further ordered that

[p]roceeds of the sale shall go first to payment of costs and expenses of the sale, then to payment of outstanding mortgage on the real estate sold. Any net proceeds are to be deposited into the registry of the court via the Baxter County Clerk's Office pending further orders of this court.

(Emphasis added.) Mark has timely appealed the decrees entered on October 30, 2018, and on February 11, 2019.

II. Issues on Appeal

Mark raises five arguments for reversal. He argues that the circuit court overlooked evidence in his favor when it granted Amy primary custody of the children and when it ordered that he have only supervised visitation. He also contends that the circuit court clearly erred when it declined to hold Amy in contempt for moving to Jonesboro in alleged violation of the court's standard restraining order, and for failing to compel the children to comply with the temporary visitation order. Mark also asserts that reversal is warranted because the circuit court abused its discretion when it awarded alimony and when it failed to value and divide the limited liability company that Amy started shortly after their separation.

III. Discussion

A. Custody

Mark first argues that the...