Erik Rye v. Sonia Rye

2021 Ark. App. 286, 625 S.W.3d 761

• Court: Court of Appeals of Arkansas
• Decided: June 2, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 286 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISIONS I & II 2023.06.28 15:16:35 -05'00' No. CV-20-89 2023.001.20174 ERIK RYE Opinion Delivered June 2, 2021 APPELLANT APPEAL FROM THE BENTON V. COUNTY CIRCUIT COURT [NO. 04DR-18-1642] SONIA RYE APPELLEE HONORABLE JOHN SCOTT, JUDGE AFFIRMED IN PART; DISMISSED IN PART

RITA W. GRUBER, Judge

This is an appeal from the financial aspects of a divorce. Appellant Erik Rye

challenges the Benton County Circuit Court’s (1) unequal division of the marital residence,

(2) order that he pay rent, both past and future, on the residence, (3) order that he pay all

costs of transportation associated with visitation with the couple’s minor children, (4)

omission of certain bank accounts titled in the name of appellee Sonia Rye in its division of

the marital property, (5) contempt citation for failing to comply with the decree, and (6)

order awarding Sonia her attorney’s fees. We affirm in part and dismiss in part.

I. Background

The parties married in February 2013. They later relocated to Arkansas where both

parties were employed at Walmart’s corporate headquarters. The parties had two daughters,

ages 1 and 3 at the time of separation in September 2018. At the time of separation, the

parties were relocating to Bethesda, Maryland, because of employment opportunities. They had purchased a home in Maryland without a mortgage. Sonia and the younger daughter

were in Arkansas while Erik and the older child were in Maryland.

Sonia filed her complaint for divorce on September 12, 2018, seeking a divorce,

custody of the minor children, child support, and division of the marital property and debts.

Erik answered, denying the material allegations. He later filed a counterclaim seeking a

divorce and custody of the children.

An agreed temporary order provided Sonia would have custody of the children;

specified Erik’s visitation, including telephone calls, with the children; and ordered Erik to

pay biweekly child support of $923.63. Erik was to be responsible for all visitation

transportation costs because he had no housing expenses.

The case proceeded to a two-day bench trial on March 29 and April 1, 2019. At the

conclusion of the trial, the court ruled from the bench and granted Sonia an absolute

divorce. Erik was granted visitation with the parties’ minor children and ordered to pay

child support as initially ordered in the temporary order. In addition, Erik was to be

responsible for all visitation transportation expenses. Each party was allowed telephone

visitation with the children when they were with the other parent. The court allowed the

parties thirty days to equitably divide their household furnishings and furniture. If no

agreement were reached, that property would be sold in Maryland and the proceeds divided

equally. The court found that Sonia contributed 41.5 percent of the purchase price of the

Maryland residence from her own separate premarital funds. The court further found Erik

owed Sonia rent for the seven months prior to trial in the approximate amount of $13,800

and ordered him to pay rent of $1,971 per month going forward. This was 41.5 percent of

2 the fair market rental value. Erik was ordered to pay the arrearage within forty-five days.

The court stated that it was making an unequal division of the residence based on Arkansas

Code Annotated section 9-12-315 (Repl. 2020) because of Sonia’s contribution of separate

funds. The court equally divided the marital portion of the parties’ 401(k) accounts and

other retirement accounts. Erik was ordered to apply for duplicate Social Security cards for

the parties’ minor children within ten days from the April 1 hearing. Sonia was awarded her

attorney’s fees and costs, to be determined at a later hearing. The circuit court entered its

decree memorializing its bench ruling on May 8, 2019.

On May 23, Erik, through new counsel, filed a motion seeking to vacate or amend

the divorce decree. He sought reconsideration of (1) the unequal division of the marital

home in Maryland; (2) the order requiring that he pay rent on the marital home; (3) the

requirement that he pay all visitation travel expenses; (4) the omission of bank accounts

titled in Sonia’s name; and (5) the order awarding Sonia her attorney’s fees and costs.

On May 30, Sonia petitioned for contempt, alleging that Erik had failed to pay any

sum on either the rental arrearage or the current rent. She further asserted that Erik had

failed to obtain duplicate Social Security cards for the children by April 11, as ordered. Sonia

later amended the contempt petition to allege that Erik was secreting household items and

other personal property from the Maryland home so they could not be identified and sold

as provided in the decree.

The circuit court held a hearing on the outstanding issues of attorney’s fees and

contempt on July 3. At the conclusion of the hearing, the court awarded Sonia $36,284 in

attorney’s fees incurred in the divorce case. The court found Erik in contempt for failing to

3 pay rent, failing to obtain duplicate Social Security cards for the children, failing to keep

Sonia informed of his efforts to obtain the cards, and failing to facilitate phone calls between

Sonia and the children. However, the court found that Erik had purged himself of the

contempt on the rent issue by paying the sums due. Erik was ordered incarcerated in the

Benton County Jail until noon on July 8 or until he could prove that he had applied for the

Social Security cards. Erik moved for findings of fact and conclusions of law under Arkansas

Rule of Civil Procedure 52(a) on the award of attorney’s fees.

On July 8, 2019, the circuit court issued findings of fact and conclusions of law

supporting the fee award. The court’s order on contempt and the award of attorney’s fees

was entered on July 11. In addition to the attorney’s fees for the divorce case, Erik was also

ordered to pay an additional $2,500 in fees for the contempt hearing.

Erik filed his notice of appeal on July 16, 2019, from the divorce decree, the court’s

findings of fact and conclusions of law, and the July 11 order on contempt and attorney’s

fees.

II. Arguments on Appeal

Although Erik’s first four points arise from the circuit court’s rulings in the divorce

decree, we must first note that Erik failed to properly extend the time for filing his notice

of appeal from the decree. This made his notice of appeal untimely and deprives us of

jurisdiction over the appeal from the divorce decree.

Pursuant to Arkansas Rule of Appellate Procedure–Civil 4(a), a notice of appeal shall

be filed within thirty days from the entry of the judgment, decree, or order appealed from.

However, upon the timely filing of certain posttrial motions made no later than ten days

4 after entry of the judgment, the time for filing the notice of appeal is extended and must

thereafter be filed within thirty days from entry of the order disposing of the last posttrial

motion. Ark. R. App. P.–Civ. 4(b)(1). Computation of the time period for perfecting an

appeal is done in accordance with Arkansas Rule of Civil Procedure 6. Whitmer v. Sullivent,

373 Ark. 327, 330, 284 S.W.3d 6, 9 (2008); see also Davis v. Davis, 2016 Ark. 64, at 4, 487

S.W.3d 803, 805. Rule 6(a) provides the following formula:

In computing any period of time prescribed or allowed by these rules . . . the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, legal holiday, or other day when the clerk’s office is closed, in which event the period runs until the end of the next day that the clerk’s office is open. When the period of time prescribed or allowed is less than fourteen (14) days, intermediate Saturdays, Sundays, or legal holidays shall be excluded in the computation. As used in this rule and Rule 77(c), “legal holiday” means those days designated as a holiday by the President or Congress of the United States or designated by the laws of this State.

Ark. R. Civ. P. 6(a) (2020).

Here, the divorce decree was entered on Wednesday, May 8, 2019. Erik filed a

posttrial motion on May 23. The question is whether this motion was timely. Under Rule

6, the ten-day period to file posttrial motions started on May 9, the day after entry of the

decree. In accordance with Rule 6, May 11 (Saturday), May 12 (Sunday), May 18

(Saturday), and May 19 (Sunday) are excluded from the computation, thus setting the due

date for any posttrial motions at May 22. However, the problem arises because Erik filed his

posttrial motion on May 23, one day late. 1 Because the motion was not timely filed, it

1 We are aware that the circuit court found that Erik’s motion was timely in its order denying the motion. However, that finding is clearly erroneous based on the above computation.

5 cannot serve to extend the time for Erik to file his notice of appeal. Jackson v. Ark. Power &

Light Co., 309 Ark. 572, 832 S.W.2d 224 (1992). Therefore, his notice of appeal was due

within thirty days of entry of the May 8 decree, or by June 7. See id. His notice of appeal

was not filed until July 16, well outside the thirty days allowed. The failure to file a timely

notice of appeal deprives the appellate court of jurisdiction. Lewis v. Jewell, 2020 Ark. App.

184, 598 S.W.3d 67. Because Erik failed to timely file a notice of appeal from the divorce

decree, we lack jurisdiction to review the issues related to it and must dismiss that portion

of the appeal. Id.

III. Contempt

We next turn to Erik’s challenge to the circuit court’s order holding him in

contempt. The court found Erik in contempt for failing to pay rent, failing to obtain

duplicate Social Security cards for the children, failing to keep Sonia informed of his efforts

to obtain the cards, and failing to facilitate phone calls between Sonia and the children.

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. Here, the contempt finding

6 was civil because it was designed to compel compliance with the court’s orders. Because the

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.

Erik’s only argument on appeal is that it was impossible for him to comply with the

court’s April 11 deadline to apply for duplicate Social Security cards for the children because

the divorce decree directing that he do so was not entered until May 8, well after the

deadline. He seeks reversal of the contempt finding along with the $2,500 attorney’s fee

imposed for the contempt.

To support his argument, Erik cites Martin v. Jimenez, 2016 Ark. App. 268, 493

S.W.3d 347. However, we cannot address Erik’s argument. Unlike the appellant in Martin,

Erik was held in contempt for multiple reasons, only one of which had a deadline affected

by the date of entry of the divorce decree. Erik does not challenge the court’s finding him

in contempt for these other reasons. His sole argument on contempt is based on Martin. By

not challenging the circuit court’s finding of contempt based upon his failure to facilitate

phone calls between Sonia and the children in his initial brief, that independent basis for the

contempt ruling remains in place. When two or more alternative reasons are given for a

decision and an appellant does not attack them all, we must affirm. Cummings v. Cummings,

2016 Ark. App. 375, at 6–7, 499 S.W.3d 221, 225; Barnett v. Barnett, 2015 Ark. App. 178;

Ross v. Bugaj, 2010 Ark. App. 656.

Our colleagues in dissent believe that an appeal of the court’s contempt finding only

on the Social Security card issue is not barred because Erik is the “master of his appeal,” and

he appealed from an order entered on July 3 stating that the circuit court had found Erik in

7 contempt and directing the sheriff to confine him. Without commenting on whether an

appellant is, in fact, the master of his or her appeal, we disagree with the dissent that the

circuit court entered two contempt orders in this case. On July 3, the date of the contempt

hearing, the circuit court entered an “Order of Commitment” remanding Erik to the

custody of the sheriff and telling the sheriff how long to hold him. Although the sanction

appears to be tied to the Social Security card issue, it was not a decision on the merits of the

various contempt issues before the court that date. In any case, Erik did not appeal from this

order; rather, he appealed “from the order adjudging him in contempt of court with respect

to social security cards and phone calls, which order was entered on July 11.” 2 It is well

settled that orders not mentioned in the notice of appeal are not properly before the appellate

court. E.g., Williams v. St. Vincent Infirmary Med. Ctr., 2021 Ark. 14, 615 S.W.3d 721;

Colonel Glenn Health and Rehab, LLC v. Aldrich, 2020 Ark. App. 222, 599 S.W.3d 344.

The order appealed to us—which the dissent designates “a second contempt

order”—was entered on July 11. In this order, the circuit court found Erik in contempt

regarding “his obtaining duplicate social security cards for the minor children and his

obligation to keep the Plaintiff updated regarding those efforts,” “his obligation to facilitate

telephone communication between the Plaintiff and the minor children while in his care

and custody,” and “ his obligation to pay rent on the Bethesda residence as ordered but has

purged himself of that contempt[.]” The court then sanctioned Erik in the following

paragraph:

2 We note that he also appealed “from the order assessing attorney’s fees” against him “entered on July 9 and July 11.”

8 9. The Court finds that [Erik] shall be incarcerated by separate Order in the Benton County Jail for his civil contempt of this Court’s Order. That as additional sanction against [Erik] for such contempt [Erik] is ordered and directed to pay an attorney fee of $2,500.00 to the Plaintiff no later than 5:00 pm on October 5, 2019.

Unlike the dissent, we do not view paragraph 9 of the court’s order as clearly tying

the jail time to the Social Security-card issue and the attorney’s fee to the telephone-

visitation issue. Erik himself appears to assume that the $2,500 attorney’s fee sanction applies

to the Social Security-card issue, requesting several times in his brief for us to reverse the

order of contempt on the Social Security-card issue and order the $2,500 fee to be returned

to him. However, the court’s order does not indicate whether the fee was divisible between

the various contempt citations and, if so, how much of the fee was for the particular issue

on appeal. Because Erik failed to challenge the alternative bases for the court’s finding of

contempt, we must affirm. Cummings, 2016 Ark. App. 375, at 6–7, 499 S.W.3d at 225;

Barnett, 2015 Ark. App. 178; Ross, 2010 Ark. App. 656.

IV. Attorney’s Fees

For his last point on appeal, Erik seeks a reversal of the circuit court’s award of

attorney’s fees to Sonia. He argues that the circuit court failed to properly consider the

disparity in income in awarding attorney’s fees. He also seeks to have us overrule Tiner v.

Tiner, 2012 Ark. App. 483, 422 S.W.3d 178, and require circuit courts to “give a

meaningful, party-centric explanation” for an award of attorney’s fees.

Erik claims that the circuit court did not properly consider the parties’ relative

financial positions, and had the court done so, it would not have required him to pay Sonia’s

attorney’s fees. The relative financial ability of each party is a consideration, but it is not

determinative. See Davis v. Williamson, 359 Ark. 33, 46, 194 S.W.3d 197, 205 (2004).

9 In its findings of fact, the circuit court considered the experience and ability of Sonia’s

attorneys as well as the reasonableness of their fees. The court found that the litigation took

extensive time and effort because both parties asserted grounds for divorce, both parties

litigated the issues of custody and visitation, and there was extensive property—both separate

and marital—valued at more than $1 million at issue. The court also noted that the issues

were difficult to resolve “because of the circumstances, conduct, and behavior, of the

parties.” One of the circumstances the court noted was the distance between the parties’

residences. The court also found that the parties were unable to cooperate with each other

because of Erik’s actions and inactions and that he had refused to follow the court’s orders.

Erik was found “financially able to comply” with the court’s orders.

Erik does not argue on appeal the amount of the fees or hours spent by Sonia’s

attorneys. His only argument places sole determinative weight on the relative financial

position of each party. However, our supreme court has held otherwise. Davis, supra. The

circuit court considered the relevant factors set forth in Davis, including finding that Erik

was responsible for the lack of cooperation between the parties and that Erik was financially

able to comply with the court’s orders. When reviewing findings of fact by a circuit court,

this court uses a clearly erroneous standard. Id. We cannot say that the circuit court’s findings

were clearly erroneous or that the award of attorney’s fees was an abuse of its discretion.

Also under this point, Erik asks that we overrule our decision in Tiner, supra, because

it does not require circuit courts to give a detailed party-centric explanation for its decision

on attorney’s fees. We decline the invitation.

Affirmed in part; dismissed in part.

10 ABRAMSON, MURPHY, and BROWN, JJ., agree.

HARRISON, C.J., and VIRDEN, J., concur in part and dissent in part.

BRANDON J. HARRISON, Chief Judge, concurring and dissenting. I join the

majority’s reasoning and disposition on the jurisdictional point. I also join, with some

reluctance and qualifications, the decision to affirm the attorney’s-fee award.

I respectfully dissent, however, from the majority’s decision to avoid deciding the

contempt issue that Erik has raised. I would hold that Erik properly preserved the argument

that the circuit court erred when it found him in contempt and jailed him for failing to meet

a deadline to procure duplicate Social Security cards for his children. Erik deserves an

answer to his challenge, whatever it may be.

Contempt. Erik properly appealed and preserved the circuit court’s decision to jail

him from 3 July 2019 to 8 July 2019. He was jailed because the court found him in

contempt for not moving quickly enough when applying for duplicate Social Security cards

for his children. The court set a deadline of ten days to apply for the replacement cards

during a hearing held on 29 March 2019. But the written decree that set the enforceable

deadline (“within ten (10) days of April 1, 2019”) was not entered until 8 May 2019, which

was after the deadline had passed. Erik argues on appeal that the court erred by sending

him to jail based on a deadline that had come and gone before it became legally enforceable.

It is all very straightforward. What the majority calls an “Order of Commitment”

was entered on July 3. It states:

On this 3rd of July, 2019, the Court having found the Defendant, ERIK RYE, to be in contempt of Court: IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the said Defendant, ERIK RYE, be and hereby is remanded to

11 the custody of the Sheriff of Benton County and to be by him confined in the Benton County Jail until said Defendant, ERIK RYE, applies for duplicate Social Security cards for the parties’ minor children, or until noon on July 8, 2019, whichever shall occur first.

IT IS SO ORDERED.

As the July 3 order makes plain, the court found Erik “in contempt of Court” for not

applying for “duplicate Social Security cards.” He was sent directly from the courtroom to

the county jail, where he remained until released on or before July 8.

Here is the point of friction. To the majority, the July 3 order that “found the

Defendant, ERIK RYE, to be in contempt of Court” is not a contempt order, it is merely

an “Order of Commitment.” That is the title of the document, true enough. Whatever

one calls the July 3 order, the record trumpets the important and undisputed facts that the

circuit court found Erik in contempt for apparently dragging his feet on the cards issue and

sent him directly to jail from the hearing—as his lawyer could be heard in the background

questioning . . . “[H]ow’s he supposed to be able to make the applications to the social

security office while he’s in prison?” To which the court replied, “However he can[.]” The

majority’s focus on a title, which never does more than minor work in legal documents,

does not change the material and substantive facts that the circuit court held Erik in

contempt on the Social Security-cards issue and jailed him as a result.

On July 11, a second contempt order was entered. (The majority apparently believes

that it is the only contempt order.) Here are the important paragraphs in the second

contempt order:

5. That the Court next considered that portion of the Plaintiff’s contempt petition regarding the Defendant’s obligation to apply for duplicate social security cards for the parties’ minor children, the Defendant’s failure to

12 facilitate telephone visitation between the Plaintiff and the minor children while in his care and the Defendant’s failure to pay rent on the Bethesda residence as ordered.

6. That the Court finds that the Defendant’s testimony offered regarding his efforts to obtain a duplicate social security cards was not credible. The Court finds the Plaintiff’s testimony regarding this matter to have been much more credible. Accordingly, the Court finds the Defendant is in willful and malicious contempt of this Court’s Order regarding his obtaining duplicate social security cards for the minor children and his obligation to keep the Plaintiff updated regarding those efforts. The Court finds there has been a total and complete failure by the Defendant to keep the Plaintiff apprised of his claimed efforts to obtain said duplicate cards.

7. That the Court finds that the Defendant did not facilitate telephone calls as ordered and further finds his claimed defense of unclean hands to not be credible. Specifically, the Defendant testified the Plaintiff denied him telephone contact with the minor children, in support of his asserted unclean hands defense, and offered his telephone log history for May 19, 2019 (Defendant’s Ex. 3) in support of his testimony but a review of that exhibit clearly reflects the Defendant received two (2) phone calls, initiated by the Plaintiff, with the minor children on that very date despite his testimony to the contrary. Accordingly, the Court finds the Defendant is in willful and malicious contempt of this Court’s Order regarding his obligation to facilitate telephone communication between the Plaintiff and the minor children while in his care and custody.

8. The Court finds the Defendant was further in contempt of this Court’s order regarding his obligation to pay rent on the Bethesda residence as ordered but has purged himself of that contempt by paying the rental obligation due through July 1, 2019.

9. The Court finds that the Defendant shall be incarcerated by separate Order in the Benton County Jail for his civil contempt of this Court’s Order. That as additional sanction against the Defendant for such contempt the Defendant is ordered and directed to pay an attorney fee of $2,500.00 to the Plaintiff no later than 5:00 pm on October 5, 2019.

13 The record does not show how long Erik was in fact imprisoned; but it is clear

enough that he never went back to jail after he was imprisoned between July 3 and July 8. 1

So there is no doubt why Erik went to jail immediately following the hearing—it was all

about the cards. In a moment of both memorialization and redundancy, the court

mentioned again in the July 11 order that Erik had been jailed (an event that had fully

transpired when the second contempt order was entered). Then it tacked on an attorney’s

fee of $2500 for good measure to incentivize better telephone communication in the future.

Erik filed a timely notice of appeal from the July 11 order. 2 On appeal, he decided

to concentrate his fire on what he obviously thought was the circuit court’s most vulnerable

ruling—that he failed to comply with the deadline related to the Social Security cards. That

ruling was the target for reversal because, as I have said, the court held him in contempt for

missing a deadline that had come and gone before the court entered the order setting the

deadline.

There is an argument to be made there. See, e.g., Ark. R. Civ. P. 58 (2020); Exigence,

LLC v. Baylark, 2010 Ark. 306, 367 S.W.3d 550; Hewitt v. State, 362 Ark. 369, 208 S.W.3d

185 (2005); Bradford v. State, 351 Ark. 394, 94 S.W.3d 904(2003); Martin v. Jimenez, 2016

1 This appeal is not moot because Erik has appealed an unconditional penalty for a specific time; and the penalty (jail) was obviously imposed as the punishment for disobeying a court order. See Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007); Ward v. Ward, 273 Ark. 198, 617 S.W.2d 364 (1981); see also Thompson v. State, 2016 Ark. 383, 503 S.W.3d 62. 2 Erik also designated an order entered on July 9 in his notice of appeal; no order bears that file-mark date. There is a “Findings of Facts and Conclusions of Law” by the circuit court that was entered on July 8, in addition to the July 3 “Order of Commitment.”

14 Ark. App. 268, 493 S.W.3d 347. But see Almeida v. Metal Studs, Inc., 2017 Ark. App. 162,

516 S.W.3d 279.

My main concern today, however, is the majority’s decision to avoid reaching and

deciding the merit of the circuit court’s decision to hold Erik in contempt on the Social-

Security-cards issue. It does so although Erik argues the point in his principal brief. True,

when it came time to file his principal brief, Erik chose not to pursue relief from the

telephone-visitation issue that showed up in the July 11 order. But there is nothing odd,

incorrect, or problematic about this tactical decision. As the appellant, Erik is the master of

his appeal; he can choose what to brief and what not to brief if the two contempt issues at

issue were not inextricably entwined. They are not.

Every case on which the majority relies to avoid Erik’s point is distinguishable

because they all imposed one indivisible sanction for multiple contemptuous behaviors. This

case is different. The cards-based contempt was a specific written finding for which a

particular sanction (jail) was imposed. Of course, whether a party must argue every

contempt finding depends on whether the conduct at issue can truly be seen as separate

events or “behaviors.” But the telephone-visitation issue is easily separated from the Social-

Security-cards issue because applying for duplicate cards for the children has nothing at all

to do with telephone visitation. Though well-intentioned, the majority’s decision to avoid

Erik’s argument for reversal on the contempt issue he raised pushes this court farther away

from the realities of the practice of law in the circuit and appellate courts. More orders from

the circuit courts will be required so that everything can be kept sufficiently “separate,”

assuming a party can get multiple orders on its own terms. This in turn means that lawyers

15 who face contempt-related issues must become hypersensitive to a degree that borders on

the unrealistic. Caveat attornatus.

Attorney’s fees. “We saved the best issue for last” was how Erik memorably

introduced his argument on why the circuit court’s decision to award Sonia more than

$36,000 in attorney’s fees should be reversed. I have a concern about not only the dollar

amount the court awarded in this case but also that one party was made to pay the other’s

fee at all. That said, I am constrained by law and this record from doing more than

expressing the reservation.

The circuit court ordered Erik to pay Sonia’s attorney’s fees in the May 8 divorce

decree. Later, the court held a hearing on the fee amount, and during it, Erik testified that

it was “incongruous” to him that Sonia had incurred substantially more attorney’s fees in

the divorce than he did. Sonia introduced bills from her attorneys as evidence and asked

the court to make Erik pay them. Sonia also testified that her first attorney charged $200

an hour. Her second attorney charged $400 an hour. In a moment of candor that should

have put the circuit court on high alert, Sonia agreed it was “reasonable for [her] former

husband to have to pay double because [she] chose to pay double.” I trust the circuit court

rejected that logic (in silence) as it went about its work.

In a written order, the court directed Erik to pay $36,284.60 to Sonia no later than

5:00 pm on October 5, 2019. If he failed to do so, then he would be held in contempt and,

you guessed it, jailed. Erik protested the reasonableness of the $36,000 fee amount in circuit

court. But he does not do so here. He does not argue that $36,000+ is too much money

to award for an attorney’s services given this record and the Chrisco factors, for example.

16 Erik’s only assertion on appeal is that the circuit court failed to consider that Sonia was the

wealthier party. He argues that “[i]t was an abuse of discretion to order [him] pay Sonia

nearly $40,000 in attorney’s fees because the order does not consider her financial abilities

and declined to provide a party-centric explanation for fee shifting.” Specifically, Erik

points out that the circuit court failed to consider that Sonia “makes 2.6x Erik’s income and

has 3.9x his cash reserves.”

I respectfully disagree with the majority’s reliance on Davis v. Williamson, 359 Ark.

33, 194 S.W.3d 197 (2004). Davis involved a paternity action (not a divorce case) in which

the circuit court denied fees to a mother despite the famous father’s wealth and ability to pay

the requested six-figure fee amount. In Davis, the supreme court considered the traditional

Chrisco factors and the relative “financial abilities of the parties” as it affirmed the circuit

court’s decision to deny the mother’s motion for attorney’s fees. Id. at 46, 194 S.W.3d at

205. More important than the specific disposition in Davis is that, here, the majority seems

to go beyond the considerations addressed in Davis. The majority affirms the fee award

because:

Both parties asserted grounds for divorce.

Both parties litigated custody and visitation issues.

The marital and separate property involved in the divorce was valued at more than $1 million.

The circumstances, conduct, and behavior of the parties made it difficult for the circuit court to resolve the litigation.

The parties lived a great distance from each other.

The parties were unable to cooperate with each other “because of Erik’s actions and inactions.”

17 Erik refused to follow the court’s orders.

Erik had the ability to financially comply with the court’s orders.

These points go beyond the disparity-of-wealth consideration and the Chrisco factors that

the supreme court applied in Davis. My concern is whether a subtle but unintended

expansion of Chrisco and Davis is afoot.

In any event, there is no question that a circuit court may order one party to pay the

other party’s attorney’s fees in a divorce case. See Ark. Code Ann. § 9-12-309(a)(2) (Repl.

2020); Gavin v. Gavin, 319 Ark. 270, 890 S.W.2d 592 (1995), overruled on other grounds by

Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004). But it is not clear why

a circuit court should award fees in the first place. That a particular decision can be made

says little about whether it should in fact be made. The circuit court in this case obviously

thought it should award fees. And Erik’s challenge to the fees includes the point that this

court has held that a circuit court must consider the relative financial abilities of divorcing

parties when deciding whether one party should be made to pay the other party’s fees.

In Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000), we held that the

circuit court clearly erred in awarding attorney’s fees to a wife since she was clearly in a

better financial position to bear the costs of the divorce litigation than the husband, who

had previously been held in contempt and incarcerated. We wrote, “[I]n determining

whether to award attorney’s fees, the [circuit court] must consider the relative financial

abilities of the parties.” Id. at 41, 25 S.W.3d at 438 (emphasis added). Jablonski arguably

conflicts with the supreme court’s decisions in Davis, supra, and Hargis v. Hargis, 2019 Ark.

321, at 7, 587 S.W.3d 208, 212 (citing Davis). To say more on the possible conflict is

18 beyond this separate writing’s scope. It suffices today to point out that regarding the

“disparity” consideration, there was proof that Sonia is the stronger party financially. For

example, the record contains an $812,893.10 cashier’s check that identifies Sonia

individually as remitter for the purchase of a home during the marriage. The record also

shows a difference in the divorcing parties’ income. Sonia testified that she earned $240,000.

She also told the court that Erik earned $150,000 a year at his new job in the Washington,

D.C., area. None of this guided the circuit court’s decision as best I can tell.

The law is murky on when and how to apply the “disparity” consideration; however,

the supreme court used it recently as dictum in Hargis: when a challenge to an attorney’s-

fee award is based on the disparity between the parties’ incomes, that disparity, standing

alone, is not a sufficient basis to reverse a fee award. 2019 Ark. 321, at 7, 587 S.W.3d at

212. Given the dictum, I cannot say with confidence that the circuit court committed a

reversible error in this case just because it did not expressly account for any alleged disparity

in Sonia’s and Erik’s respective wealth.

It is also important to me, as it is to the majority, that Erik has not attacked the

reasonableness of the fee amount itself here (though he did so in circuit court). He swung

toward a different fence, arguing that the court erred by making him pay any amount at all

given the parties’ respective wealth. Deciding the reasonableness of a fee amount is not the

same as deciding whether a divorcing party is entitled to one in the first place. I take the

latter point to be Erik’s point. It was a tactical decision in my view, and I understand why

he made it. I agree in principle with Erik that a circuit court should have to tell the parties

why it is making one party pay the other party’s attorney’s fees in a divorce action. But that

19 view has been rejected by this court thus far. See Folkers v. Buchy, 2019 Ark. App. 30, at

11, 570 S.W.3d 496, 503 (Harrison, J., dissenting); see also Tiner v. Tiner, 2012 Ark. App.

483, at 17, 422 S.W.3d 178, 188 (Abramson, J., dissenting). The supreme court has yet to

step directly into the breach and decide whether circuit courts must do more to justify

large—if not potentially financially crippling—attorney’s fees in this type of case. Folkers,

2019 Ark. App. 30, at 17, 570 S.W.3d at 505 (Hixson, J., dissenting).

Perhaps the supreme court will also one day soon revisit what is so special about this

area of the law in general such that one party can so readily be made to pay another party’s

attorney’s fees absent a contractual promise to do so. Two adults consent to be married.

They are married for a time. They decide to divorce. (There are more times than not

cross-complaints for divorce, which is what happened here.) The court divorces the couple.

The court then decides that one party should pay the other party’s attorney’s fees—even

when there is no finding that any lawyer engaged in vexatious litigation or some other Rule

11 violation, there has been no Rule 37-related discovery violation, the relative wealth of

the divorcing parties is not expressly considered, etcetera. Why does this rather usual

situation warrant one party having to pay the other party’s attorney’s fees? I see no clearly

expressed reason or justification in the caselaw or the statute that answers this question.

* * *

The finding of contempt in the order dated 3 July 2019 (and its redundant

memorialization on July 11) relating to Erik’s procurement of duplicate Social Security cards

was preserved for a decision on its merit. Because the majority’s opinion avoids deciding

this important issue, I respectfully dissent.

20 I join the entirety of the majority’s decision on the jurisdictional point, and subject

to the reservations stated, I join the decision to affirm the attorney’s-fee award to Sonia.

VIRDEN, J., joins.

Kezhaya Law PLC, by: Matthew A. Kezhaya; and The Vernetti Group, PLLC, by: Bryan

S. Vernetti, for appellant.

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