Waggoner v. Waggoner

423 S.W.3d 117, 2012 Ark. App. 286, 2012 Ark. App. LEXIS 404, 2012 WL 1432204
CourtCourt of Appeals of Arkansas
DecidedApril 25, 2012
DocketNo. CA 11-390
StatusPublished
Cited by3 cases

This text of 423 S.W.3d 117 (Waggoner v. Waggoner) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waggoner v. Waggoner, 423 S.W.3d 117, 2012 Ark. App. 286, 2012 Ark. App. LEXIS 404, 2012 WL 1432204 (Ark. Ct. App. 2012).

Opinion

ROBERT J. GLADWIN, Judge.

| Appellant Brad Waggoner files this appeal from the December 29, 2010 order of the Lonoke County Circuit Court. He argues that the trial court erred in (1) granting appellee Carrie Waggoner a divorce because the grounds for divorce were not corroborated; (2) imposing as a sanction for failure to comply with discovery that appellant not be permitted to testify in his own defense; and (3) failing to equally distribute the marital property between the parties and returning all other property to the party who owned it prior to the marriage. We affirm.

Facts

Appellee brought this divorce action against appellant on September 2, 2009. As a sanction for appellant’s failure to respond to discovery requests in a timely manner, the trial court, pursuant to Arkansas Rule of Civil Procedure 37 (2011), prohibited appellant from presenting any evidence at the hearing. Additionally, at the request of appellee, the trial court 12made an unequal division of marital and nonmar-ital property, as contemplated by Arkansas Code Annotated section 9-12-315(a) (Repl. 2009). The decree was entered on December 29, 2010, and appellant filed his notice of appeal on January 28, 2011.

I. Corroboration of Grounds for Divorce

Although this court reviews domestic-relations cases de novo on the record, this court will not reverse a trial court’s findings unless they are clearly erroneous. Ransom v. Ransom, 2009 Ark. App. 273, 309 S.W.3d 204. A trial court’s finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been committed. Id. This court gives due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Id.

Appellant argues that appellee’s grounds for divorce were not sufficiently corroborated through appellee’s sister, Kristina Mott. Ms. Mott testified that, during the marriage, she visited appellee about once a week at the marital home a few miles from where she lived. She explained that sometimes appellant would be at home during her visits, but most of the time he was not. At least one time, she saw appellee writing out some checks to pay the bills, but she added that she did not “know if that was a bone of contention between [appellee] and her husband.” Appellant apparently told Ms. Mott that he played cards, but she could not recall any other “admissions.”

Appellant acknowledges the tradition of requiring only “slight” corroboration of grounds in contested cases, citing Moore v. Davidson, 85 Ark.App. 104, 145 S.W.3d 833 (2004). Appellant claims that the problem with the corroboration in the present case is that he was not permitted to deny or answer anything that appellee or her witness said. Appellant was not allowed to present any witnesses, even his own testimony, to support his version of the events. He urges that it was not a situation, as in Moore, supra, with each party presenting witnesses to support their version of events. Although conceding that the divorce was contested, only one side presented evidence, and he claims that the corroboration was woefully less than “slight.” See McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977).

Appellee maintains, and we agree, that appellant failed to preserve this specific argument for appellate review. The argument that appellant presented to the trial court concerning corroboration was that appellee’s witness had not sufficiently corroborated appellee’s grounds for divorce. On appeal, he argues for the first time that appellee’s grounds for divorce were not sufficiently corroborated because of his inability to testify. The record indicates that the only mention appellant made of his inability to testify below was his mere objection to the fact that the trial court disallowed his testimony. He did not make any argument to the trial court concerning how his inability to testify affected any issue in this case including, but not limited to, the corroboration of grounds. This court will not consider an argument first raised on appeal because appellant failed to make this argument to the trial court below. See, e.g., Robbins v. Robbins, 2011 Ark. App. 541, 2011 WL 4388298.

II. Sanction for Failure to Comply with Discovery

Discovery requests in the form of written interrogatories were submitted by appellee to appellant during the course of litigation, the content of which is not known because neither |4the interrogatories nor appellant’s responses thereto have been made a part of the record. Based upon the comments of counsel for both parties, appellee requested a witness list, a list of property, and a list of exhibits, and a motion to compel was filed May 17, 2010.

At the commencement of this action, the trial court had entered a temporary restraining order, which placed certain limits on financial transactions by the parties outside the usual course of business. The parties appeared before the court on June 8, 2010, at which time appellant advised the trial court that he had not been able to retain an attorney due to lack of funds. The trial court ordered that $10,000 be withdrawn from a joint account at a Bates-ville bank, with $5,000 to be distributed to each party, and also ordered appellant to hire an attorney and respond to discovery by June 22, 2010. At the time of the hearing on August 27, 2010, appellant was represented by Ralph Blagg, and the interrogatories had been answered at 4:30 p.m. the prior day. As a result, the trial court sanctioned appellant by prohibiting him from presenting any evidence at the hearing to support his case. His counsel, however, was permitted to cross-examine appellee and her witnesses.

Arkansas Rule of Civil Procedure 37(b)(2) (2011) provides for sanctions in the event a party “fails to obey an order to provide or permit discovery.” These sanctions include prohibiting the disobedient party from, among other things “introducing designated matters in evidence,” and presumably matters that were the subject of the discovery requests would be the designated matters. Appellant acknowledges that he cannot in good faith argue that he should have been permitted to call witnesses and introduce documentary evidence or other exhibits that had been requested in discovery and not disclosed in a timely manner, or at least Rwithin a reasonable time. But he urges that the effect of the trial court’s sanction was that he was prevented from developing any evidence other than by cross-examining hostile witnesses, and was even prevented from testifying in his own defense. Appellant contends that the trial court erred in sanctioning him for failing to comply with discovery by not permitting him to testify at the final hearing of this matter.

Appellee submits, and we agree, that appellant’s argument on appeal goes far beyond the mere “objection” he stated at trial. Below, counsel for appellant made only the following nonspecific objection concerning the trial court’s decision to preclude appellant’s testimony:

Let me say for the record so it’s clear, I do object to the fact that my client cannot testify.

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Cite This Page — Counsel Stack

Bluebook (online)
423 S.W.3d 117, 2012 Ark. App. 286, 2012 Ark. App. LEXIS 404, 2012 WL 1432204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waggoner-v-waggoner-arkctapp-2012.