Cite as 2021 Ark. 75 SUPREME COURT OF ARKANSAS No. CV-19-625 Opinion Delivered: April 15, 2021
CHARLES SYMANIETZ APPEAL FROM THE BENTON APPELLANT COUNTY CIRCUIT COURT [NO. 04DR-18-129]
V. HONORABLE DOUG SCHRANTZ, JUDGE
DEBORAH SYMANIETZ AFFIRMED IN PART; DISMISSED IN APPELLEE PART; COURT OF APPEALS’ OPINION VACATED.
JOHN DAN KEMP, Chief Justice
Appellant Charles Symanietz (“Charles”) appeals from the Benton County Circuit
Court’s divorce decree and orders of contempt. For reversal, he argues that the circuit court
erred in (1) calculating his child-support obligation and imputing income to him, (2)
awarding alimony to appellee Deborah Symanietz (“Debbie”), (3) failing to consider a
mediation agreement, and (4) holding him in contempt. We affirm in part and dismiss in
part.
I. Facts
Charles and Debbie were married in February 1991. In 2009, they started a trucking
company, Symanietz Enterprises. Charles drove the truck while Debbie was the dispatcher,
paid the bills and taxes, and kept the company’s records. Charles and Debbie separated in
September 2017, and Debbie filed for divorce on January 25, 2018. They have three daughters who were ages eighteen, sixteen, and eleven at the time of the filing. Debbie sought
custody of the minor children as well as child support.
On January 25, 2018, the circuit court entered a temporary ex parte order awarding
temporary custody of the minor children to Debbie and ordering Charles to “pay child
support of $199.00 per week, based on his income.” The circuit court also ordered the parties
to appear at a hearing on February 7, 2018, but the record reflects that a hearing was not
held until July 2018.
On June 30, Debbie filed a motion for contempt alleging that Charles had failed to
pay child support as previously ordered. Charles responded that he had never received service
of the temporary ex parte order and that he had made child-support payments to the extent
that he was able.
Following a November 2018 hearing, the circuit court entered a divorce decree on
January 22, 2019. It found that Charles owed $3,500 in unpaid child support and found
him in contempt of court for his failure to pay. The court further found that it was not
bound by a mediation agreement pursuant to which the parties alleged that they had divided
their real property. It ordered that the marital real property and several items of personal
property be sold at public auction and the proceeds split evenly after the payment of several
debts listed in the circuit court’s order.
The circuit court awarded Debbie custody of the two minor children and found that
12. Based on the IRS records and the work records introduced in evidence, the Court imputes $3,400.00 per month in income to Mr. Symanietz. Based upon that amount of income, it is hereby Ordered that Mr. Symanietz pay child support unto Mrs.
2 Symanietz at $800.00 per month, beginning November 8, 2018 . He shall also pay an additional 20% of that amount ($160.00) per month until his arrearage of $3,500.00 is paid in full.
....
14. The Court orders that, beginning November 8, 2018, Mr. Symanietz shall pay $100.00 per month in alimony to Mrs. Symanietz, so long as she is receiving $2,000.00 per month or more in income from Symanietz Enterprises. However, if she does not voluntarily terminate her employment but ceases receiving that amount of income from Symanietz Enterprises, then Mr. Symanietz’s alimony obligation shall increase to $2,000.00 per month, for a period of two years.
15. Mr. Symanietz shall also pay an additional $2,500.00 in fees to Mrs. Symanietz, within 90 days of November 8, 2018.
On February 13, 2019, Charles filed a notice of appeal from that divorce decree.
Debbie then filed a motion for contempt and to modify spousal support. She alleged that
Charles had failed to make payments toward the arrearage and failed to pay court-ordered
child support, fees, and alimony. She further argued that alimony should be modified
because of a change in circumstances since Charles refused to work and had “intentionally
destroyed Symanietz Enterprises’ viability.” She also sought a greater share of their real and
personal property.
On May 29, Charles was held in criminal contempt of court and sentenced to ten
days in the Benton County jail. Then, in a June 5, 2019 order, the circuit court found
Charles in willful contempt of the court’s orders in the divorce decree. The circuit court
ordered that Charles be incarcerated for fourteen days, to run consecutively to the previous
ten-day sentence, for a total sentence of twenty-four days in the Benton County jail. The
circuit court entered a judgment against Charles for $15,000 in unpaid spousal support and
3 attorney’s fees and found that Charles “may purge himself of the 14-day sentence for
Contempt by paying this amount to the Plaintiff.”
Charles appealed the divorce decree and contempt orders to the court of appeals, and
that court affirmed. Symanietz v. Symanietz, 2020 Ark. App. 394, at 1, 609 S.W.3d 643, 645
(substituted opinion on grant of rehearing). Charles then filed a petition for review with this
court, which we granted. When we grant a petition for review, we consider the appeal as
though it had originally been filed in this court. Davis Nursing Ass’n v. Neal, 2019 Ark. 91, at
4, 570 S.W.3d 457, 460.
II. Points on Appeal
A. Child Support
Charles first argues that the circuit court erred in calculating his imputed income as
$3,400 per month and setting his child-support obligation at $800 per month because it
disregarded the child-support-chart amount, disregarded his tax records, and imputed
income even though he claims that his income was not reduced “as a matter of choice.”
Our standard of review for an appeal from a child-support order is de novo on the
record, and we will not reverse a finding of fact by the circuit court unless it is clearly
erroneous. Ward v. Doss, 361 Ark. 153, 158, 205 S.W.3d 767, 770 (2005). In reviewing a
circuit court’s findings, we give due deference to that court’s superior position to determine
the credibility of the witnesses and the weight to be given to their testimony. Id., 205 S.W.3d
at 770. In a child-support determination, the amount of child support lies within the sound
discretion of the circuit court, and that court’s findings will not be reversed absent an abuse
4 of discretion. Taylor v. Taylor, 369 Ark. 31, 39, 250 S.W.3d 232, 238 (2007). However, a
circuit court’s conclusions of law are given no deference on appeal. Id., 250 S.W.3d at 238–
39.
1. Whether the circuit court followed Administrative Order No. 10 in calculating child support
Charles argues that the circuit court failed to follow the established procedure for
calculating child support. Specifically, he asserts that the circuit court should have begun its
inquiry with the two previous years’ tax returns. He relies on his 2016 tax return showing
his share of the business income was $34,166, or approximately $2,847.17 per month, and
his 2017 return showing his share of the income was $32,746, or approximately $2,728.83
per month. He further argues that the circuit court should have made written findings about
why the child-support-chart amount was unjust.
Under Arkansas Code Annotated section 9-12-312(a)(3)(A) (Supp. 2019), in
determining a reasonable amount of child support, the circuit court shall refer to the family-
support chart in Administrative Order No. 10. Administrative Order No. 10(III)(c) (2019)
provides that, “[f]or self-employed payors, support shall be calculated based on the last two
years’ federal and state income tax returns and the quarterly estimates for the current
year. . . . Also, the court shall consider the amount the payor is capable of earning or a net
worth approach based on property, life-style, etc.” Under Administrative Order No.
10(III)(d),
[i]f a payor is unemployed or working below full earning capacity, the court may consider the reasons therefor. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a payor up to
5 his or her earning capacity, including consideration of the payor’s life-style. Income of at least minimum wage shall be attributed to a payor ordered to pay child support.
Ark. Sup. Ct. Admin. Order No. 10(III)(d) (2019). This court has stated that “[a] supporting
spouse does not have total discretion in making decisions which affect the welfare of the
family, if the minor children have to suffer at the expense of those decisions.” Grady v. Grady,
295 Ark. 94, 98, 747 S.W.2d 77, 79 (1988). In Grady, we recognized that there are situations
in which an income reduction is reasonable and justifiable under particular circumstances.
Id., 747 S.W.2d at 79. “But the court must judge the facts and circumstances of each case
and when under appropriate circumstances an income based on earning capacity is
attributed to a spouse, the reviewing court will not find error.” Id., 747 S.W.2d at 79.
Here, on imputed income and child support, the circuit court made the following
findings in its bench ruling at the November 2018 divorce hearing:
Based on the evidence that I’ve seen here, this was a struggle to make ends meet, largely because Mr. Symanietz chose not to drive from time to time. . . . But it has been obvious that Mr. Symanietz works at this business when he chooses to, and when the trouble came, for whatever reason, between these two, he chose not to do so . . . regularly.
I based child support in the temporary hearing . . . upon representations made to the Court at the time about income and so forth; and, frankly, I found those, as I reviewed this today, to be certainly within reason of what Mr. Symanietz is capable of earning.
I am convinced, based on the IRS records and the work records that have been provided in the course today, that Mr. Symanietz is very capable of earning a minimum of $3400 a month if he applies himself at this trucking business, and I impute that income to him and set child support at $800 per month.
6 In the divorce decree, the circuit court again outlined Charles’s imputed income and child-
support obligation and based those numbers “on the IRS records and the work records
introduced in evidence.”
We see no error in the circuit court’s findings on child support and imputed income.
Administrative Order No. 10 required the circuit court to consider Charles’s tax returns
from the previous two years, but it also mandated that the circuit court consider the amount
he is capable of earning and, if he was “unemployed or working below full earning capacity
. . . the reasons therefor.” In addition to the income reflected for 2016 and 2017, Charles’s
tax returns also showed that in 2014 and 2015, his share of the income was much greater
than in 2016 and 2017. Further, Debbie testified—and provided work records in support—
that for the three-month period from March 1 to May 26, 2017, Charles earned
approximately $33,306. His share of that amount would have been $16,653 for the entire
period, or approximately $5,551 per month.
The circuit court considered the parties’ testimony, tax returns, and work records and
concluded that Charles was intentionally earning less than he was capable of earning, which
was a matter within the circuit court’s discretion. Giving deference to the circuit court’s
superior position to determine witness credibility, we hold that the circuit court did not
abuse its discretion in imputing $3,400 per month to Charles and setting his child-support
obligation at $800 per month.
2. Whether Charles’s income was reduced as a matter of choice
7 Charles also argues that income should not have been imputed to him at all because
his income was not reduced “as a matter of choice” but because “the undisputed evidence
was that Debbie (his dispatcher) quit working and the business did not have the money to
fix the truck.”
Under Administrative Order No. 10, “[i]f earnings are reduced as a matter of choice
and not for reasonable cause, the court may attribute income to a payor up to his or her
earning capacity, including consideration of the payor’s life-style.” Ark. Sup. Ct. Admin.
Order No. 10(III)(d).
Contrary to Charles’s assertion that “Debbie, the other half of the business, stopped
working in the face of divorce proceedings,” Debbie testified that she had continued working
for their business during the divorce proceedings and was willing to do so after the divorce
was final. She testified that she communicated with Charles primarily through email and
text messages. After she filed for divorce, it became more frequent that Debbie would present
Charles with truck runs, but he would not accept if he did not want to do them. Sometimes,
he would find his own runs, which often produced less income than the runs Debbie had
located for him. Debbie and Charles both testified that he had taken runs following the July
2018 temporary hearing, even though he had testified at that hearing that he could not drive
the truck without performing repairs.
The circuit court ruled that the parties’ testimony amounted to “a great deal of he-
said/she-said.” It found that the struggle to make ends meet was largely due to Charles’s
decision not to drive from time to time, but that he was “very capable of earning a minimum
8 of $3400 a month if he applies himself at this trucking business.” We defer to the circuit
court’s assessment of witness credibility. See Ward, 361 Ark. at 158, 205 S.W.3d at 770. We
cannot say that the circuit court’s decision to impute income to Charles was an abuse of
discretion.
B. Alimony
Charles next argues that the circuit court’s grant of alimony was an abuse of discretion
because the parties had precisely equal earnings and Debbie chose not to work. Charles
further challenges the award because “it amounts to all of [his] income.”
An award of alimony is within the sound discretion of the circuit court, and we will
not reverse that decision absent an abuse of discretion. Chekuri v. Nekkalapudi, 2020 Ark. 74,
at 17, 593 S.W.3d 467, 477. We have further emphasized that the circuit court is in the best
position to view the needs of the parties in connection with an award of alimony. Id., 593
S.W.3d at 477.
The purpose of alimony is to rectify the economic imbalances in earning power and
standard of living in light of the particular facts in each case. Foster v. Foster, 2016 Ark. 456,
at 9, 506 S.W.3d 808, 814. The primary factors to be considered in determining whether to
award alimony are the financial need of one spouse and the other spouse’s ability to pay. Id.,
506 S.W.3d at 815. The following secondary factors should also be considered: (1) the
financial circumstances of both parties; (2) the couple’s past standard of living; (3) the value
of jointly owned property; (4) the amount and nature of the parties’ income, both current
and anticipated; (5) the extent and nature of the resources and assets of each party; (6) the
9 amount of income of each that is spendable; (7) the earning ability and capacity of each party;
(8) the property awarded or given to one of the parties, either by the court or the other party;
(9) the disposition made of the homestead or jointly owned property; (10) the condition of
health and medical needs of both husband and wife; (11) the duration of the marriage; and
(12) the amount of child support. Id., 506 S.W.3d at 815. This court has held that the
amount of alimony should not be reduced to a mathematical formula because the need for
flexibility outweighs the need for relative certainty. Kuchmas v. Kuchmas, 368 Ark. 43, 46,
243 S.W.3d 270, 272 (2006).
On alimony, the circuit court ordered the following:
The Court orders that, beginning November 8, 2018, Mr. Symanietz shall pay $100.00 per month in alimony to Mrs. Symanietz, so long as she is receiving $2,000.00 per month or more in income from Symanietz Enterprises. However, if she does not voluntarily terminate her employment but ceases receiving that amount of income from Symanietz Enterprises, then Mr. Symanietz’s alimony obligation shall increase to $2,000.00 per month, for a period of two years.
The circuit court rationalized in its bench ruling:
[I]n light of the earning capacity that the Court perceives for Mr. Symanietz, it’s much greater than the potential for Ms. Symanietz. I don’t see her having the ability to go out and drive [a] truck or to broker or to dispatch anywhere near and earn anywhere near the money that Mr. Symanietz is capable of. So for that reason, even though their education and other factors may be similar, the earning capacity is just not the same. Plus she now has the burden of caring for a disabled adult daughter, which also is taken into account as the Court makes its decision.
We agree with the circuit court’s alimony award because it considered the parties’
earning capacities, Debbie’s financial need, and Charles’s ability to pay. Although Charles
10 claims that Debbie refused to work, she testified at the divorce hearing that she continued
to find truck runs for Charles during the divorce proceedings although he often declined
them. She also testified that she was willing to continue working for Symanietz Enterprises.
But Charles testified, “It’s a constant friction fight. I cannot work with her[,]” and “We do
not get along. . . . I do not wish to work with Debbie.”
The circuit court also heard testimony on the parties’ work experience. Charles
testified that, in addition to more than 1 million miles of trucking experience, he has fifteen
years of experience in the flooring business, had built several homes, had worked in sales,
and considers himself “a jack of all trades.” Debbie testified that, apart from her previously
mentioned tasks at Symanietz Enterprises, she had attempted brokering and had worked as
a waitress for about a year before they started the trucking business. Debbie further testified
that, in addition to providing for her two minor daughters who live with her, she also cares
for her adult daughter who lives with her and suffers from a serious medical condition.
After hearing this testimony, the circuit court determined that Charles had a much
greater earning potential than Debbie, and it also considered Debbie’s financial obligations
in caring for her adult daughter. We defer to the circuit court’s credibility determinations
and superior position to view the parties’ needs with respect to alimony. See Chekuri, 2020
Ark. 74, at 17, 593 S.W.3d at 477. Thus, we hold that the alimony award was not an abuse
of discretion, and we affirm the circuit court’s ruling.
C. Mediation Agreement
11 Charles next challenges the circuit court’s finding within the divorce decree that the
parties’ real estate be sold at public sale to the highest bidder. He argues that the parties had
a mediation agreement to sell it privately for no less than $200,000, and the circuit court’s
refusal to consider that agreement constitutes reversible error.
In domestic-relations cases, our review is de novo, but we will not reverse the circuit
court’s findings of fact unless they are clearly erroneous. Pace v. Pace, 2020 Ark. 108, at 9,
595 S.W.3d 347, 352. A finding is clearly erroneous when the reviewing court, on the entire
evidence, is left with a definite and firm conviction that a mistake has been made. Potts v.
Potts, 2017 Ark. 33, at 9, 512 S.W.3d 611, 616.
Here, the circuit court found that “[t]he agreement was not entered into evidence and
did not deal with the debt and personal property. Therefore[,] the Court cannot find the
agreement is reasonable, and the Court is not bound by that agreement.” Given that the
mediation agreement was not entered into evidence and is not part of the record on appeal,
we hold that the circuit court’s finding that it was not bound by the agreement was not clearly
erroneous.
D. Contempt
For his last point on appeal, Charles seeks a reversal of the contempt orders entered
against him on January 22, May 29, and June 5, 2019. He argues that he did not “willfully”
fail to pay child support before April 4, 2018, because he was unaware of the child-support
order until that date. He also argues that he should not have been held in contempt because
he is incapable of paying the court-ordered amounts of child support and alimony.
12 As a preliminary matter, Charles acknowledges on appeal that “[c]ounsel
miscalculated the deadline[,]” and filed his amended notice of appeal from the May and June
2019 contempt orders several days late. The failure to file a timely notice of appeal deprives
the appellate court of jurisdiction. Craig v. Carrigo, 353 Ark. 761, 777, 121 S.W.3d 154, 164
(2003). Because Charles failed to timely file a notice of appeal from the May 29 and June 5,
2019 orders, we lack jurisdiction to review them and dismiss those portions of the appeal.
We now turn to the January 22 contempt order. This court has said that willful
disobedience of a valid order of a court is contemptuous behavior. Ivy v. Keith, 351 Ark. 269,
279, 92 S.W.3d 671, 677 (2002). However, before one can be held in contempt for violating
the court’s order, the order must be definite in its terms and clear as to what duties it
imposes. Scudder v. Ramsey, 2013 Ark. 115, at 12, 426 S.W.3d 427, 435. Contempt can be
civil or criminal. Id., 426 S.W.3d at 435. The purpose of criminal contempt is to preserve
power, vindicate the dignity of the court, and punish for disobedience of the court’s order.
Id., 426 S.W.3d at 435. By comparison, civil-contempt proceedings are instituted to preserve
and enforce the rights of private parties to suits and to compel obedience to orders made for
the benefit of those parties. Id., 426 S.W.3d at 435. Because the January 2019 contempt
finding was civil, the standard of review is whether the circuit court’s finding is clearly against
the preponderance of the evidence. Id. at 13, 426 S.W.3d at 435.
In the January 22, 2019 divorce decree, the circuit court found that Charles owed
$3,500 in unpaid child support dating back to its January 2018 temporary order. It held
Charles in contempt of court for his failure to pay. We agree. Charles’s argument that he
13 should not have been held in contempt because he could not afford to pay the court-ordered
amount is an extension of his argument against the child-support award. Because we affirm
the award of child support, we hold that the circuit court’s contempt finding for failure to
pay it is not clearly against the preponderance of the evidence. Additionally, the circuit court
did not specifically rule on Charles’s lack-of-notice argument in its order. Thus, he has failed
to preserve that argument for appeal. See TEMCO Constr., LLC v. Gann, 2013 Ark. 202, at 9,
427 S.W.3d 651, 657. We affirm the circuit court’s January 22, 2019 contempt order.
Affirmed in part; dismissed in part; court of appeals’ opinion vacated.
WEBB, J., dissents.
BARBARA W. WEBB, Justice, dissenting. I respectfully dissent from the majority’s
decision to affirm the alimony award.
The circuit court imputed income to Charles of $3400 a month “if he applies himself
at this trucking business.” The trucking business had been run exclusively by both Deborah
and Charles throughout their marriage. The imputed income was based on figures from
years prior to the divorce when Charles was younger, and the parties were working together
as partners with a common goal. The circuit court assumed the parties would continue
working together with the same fervor after the divorce. This alone was an abuse of
discretion. Past average income, unless it reflects current reality, is simply meaningless in
determining a present ability to pay. Jones v. Jones, 295 So. 3d 1226, 1228 (Fla. Dist. Ct.
App. 2020) (citations omitted). Past average income will not put bread on the table today.
Id.
14 The record reflects that Deborah managed all the affairs for the business except drive
the truck. She found the best runs, negotiated the freight fees, facilitated the payment
arrangements, and communicated with the freight companies. The business’ success was
largely dependent on Deborah’s skills. Yet, she was guaranteed the alimony award despite
how much she continued to contribute to the business for as long as she did not resign from
the company. Furthermore, the record reflects that the only truck the company owned was
in such disrepair that it was not legal to be on the road. Charles, who was living in a trailer
with no electricity or running water, testified that he could not afford to pay for the repairs
to the truck. The circuit court put Charles in a position in which he could not succeed. His
business partner is his ex-wife with whom he was bitterly fighting, he was court ordered to
make payments which left him with a maximum of $600 a month and had no operable
truck with which to earn the money to make his ordered support payments.
As the MMA fighter Max Holloway said, “Numbers don’t lie. women lie, men lie,
but numbers don’t lie.” In reviewing the numbers, of the $3400 in monthly imputed income
to Charles, $800 went to child support and $2,000 went to alimony. That leaves Charles
with $600 at the end of the month for a total of $7200 in annual income—a figure well
below the poverty level.1 However, Deborah is guaranteed $33,600 per year, which is well
above the poverty line.
1 www.healthcare.gov
15 In marital dissolution proceedings, the circuit court need not equalize the financial
position of parties. Canakaris v. Canakaris, 382 So. 2d 1197, 1204 (Fla. 1980) (citing Brown
v. Brown, 300 So. 2d 719 (Fla. 1st DCA 1974)). However, the circuit court must ensure
that neither spouse passes automatically from misfortune to prosperity or from prosperity to
misfortune, and, in viewing totality of circumstances, one spouse should not be
“shortchanged.” Id. Here, the circuit court created a vast financial disparity that left Charles
hopelessly destitute while creating considerable financial security for Deborah. This is a clear
abuse of discretion, and for these reasons, I dissent.
Kezhaya Law PLC, by: Matthew A. Kezhaya and Sonia A. Kezhaya, for appellant.
One brief only.