Conlee v. Conlee

• Decision Date: 24 May 2007
• Docket Number: No. 06-586.,06-586.
• Citation: Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (Ark. 2007)
• Parties: Lade Thomas CONLEE Jr., Appellant, v. Jennifer CONLEE, Appellee.
• Court: Arkansas Supreme Court

257 S.W.3d 543

370 Ark. 89

Lade Thomas CONLEE Jr., Appellant, v. Jennifer CONLEE, Appellee.

No. 06-586.

Supreme Court of Arkansas.

May 24, 2007.

Dodds, Kidd & Ryan, by: Stephanie Chamberlin and Judson Kidd, Little Rock, AR, for appellant.

Allison R. Allred, P.A., by: Allison R. Allred, North Little Rock, AR, for appellee.

TOM GLAZE, Justice.

This is an appeal from a divorce case with a long and complicated history. Appellant Lade Thomas Conlee Jr. ("Tom") and appellee Jennifer Conlee ("Jennifer") were married on December 12, 1996, and separated in April or May of 2004.¹ On May 26, 2004, Jennifer filed a complaint for divorce. Tom answered and counterclaimed for divorce on June 14, 2004. On June 25, 2004, Jennifer served a set of interrogatories and requests for production on Tom. On July 26, 2004, Tom filed a motion seeking an extension of fourteen additional days to file his responses to Jennifer's voluminous requests for discovery. Jennifer responded that she had no objection to the extension, providing that no more than two extra weeks were granted, given that the parties had a trial date in October of 2004. Fourteen days from the July 26, 2004, deadline would have given Tom until August 9, 2004, to file his discovery responses.

On September 30, 2004, Jennifer filed a motion to compel discovery, asserting that, despite the agreement to give Tom extra time to file his responses, he did not furnish timely discovery responses by August 9, 2004. While acknowledging that Tom submitted responses on August 23, 2004, Jennifer alleged that those responses were "unsigned, unverified, [and] incomplete." In conjunction with her motion, Jennifer sought attorney's fees and costs. The trial court entered an order on October 5, 2004, granting Jennifer's motion to compel discovery, requiring Tom to provide "full, complete responses" by October 8, 2004, and noting that all objections to discovery requests were waived as they had not been made by August 9, 2004.²

On October 12, 2004, Jennifer filed a second motion to compel discovery and a motion for continuance. In that motion, she alleged that Tom had failed and refused to meet the court-ordered October 8, 2004, discovery deadline and that he "continue[d] to thwart discovery efforts." Following an October 13, 2004, hearing on Jennifer's motion to compel, the trial court entered an order in which it found that, due to Tom's failure to name witnesses in a timely fashion in response to a specific interrogatory, he would not be permitted to call any witnesses at trial other than the parties. In addition, the court ordered Tom to answer, by 9:00 a.m. on Friday, October 15, 2004, certain interrogatories and requests for production that identified any exhibits or documents he intended to use at trial. The court warned that if any such potential exhibits were not provided to Jennifer by 9:00 a.m. on October 15, Tom would not be permitted to use them at trial. In addition, the court ordered Tom to provide "complete, verified discovery responses" by 9:00 a.m. on Friday, October 15, 2004. Finally, the court ordered Tom to pay a fine of $1,500 as a result of his failure to comply with the October 5, 2004, order to compel; the fine was to be paid prior to the start of trial on October 25, 2004.

On October 20, 2004, Jennifer filed a motion for contempt in which she contended that, despite the court's order, Tom had still failed to provide any of his exhibits by October 15 and had provided only partial, unverified discovery responses to the office of Jennifer's counsel at approximately 2:30 p.m. on Friday, October 15. Due to his failure to comply with the court's orders, and because the motion for contempt was the third motion addressing the same discovery issues, Jennifer argued that Tom should be held in contempt and ordered to pay attorney's fees.

The trial court held a hearing on Jennifer's motion for contempt on October 25 and 26, 2004, the dates on which the trial had originally been scheduled. In a subsequent order, the court noted that Tom had paid his $1,500 fine on October 26, 2004, and that Jennifer had withdrawn her October 20, 2004, motion for contempt. The court's order also noted that the final hearing had been suspended in order to allow Jennifer an opportunity to investigate Tom's assets and other relevant issues and to review any discovery information that Tom had not previously produced. Accordingly, the court ordered Tom to produce "everything requested in discovery, which has not been previously produced, by Friday, October 29, at 9:00 a.m." If Tom failed to do so, the court instructed Jennifer to file a motion for contempt.

On November 5, 2004, Jennifer filed such a motion for contempt, alleging that Tom had failed to meet the October 29 deadline; however, she conceded that he had produced "some but not all bank statements and some credit card records at 8:58 on that date." That same afternoon, the court entered an order directing Tom to appear and show cause why he should not be held in contempt for failing to obey the court's orders.

Tom filed a response on November 22, 2004, in which he asserted that he had substantially complied with Jennifer's discovery requests. Although he admitted that he had failed to meet the October 15, 2004, 9:00 a.m. deadline, he contended that the bulk of the requested material had been sent via Federal Express from Memphis to Little Rock and did not arrive until after 9:00 a.m. Tom also alleged that some of the bank statements and credit card statements that Jennifer sought were simply not in his possession at the time of the October 26 order or prior to that time.

After both parties jointly moved for a continuance of the divorce hearing, the court set a trial date for January 14, 2005. On January 11, 2005, Jennifer filed a discovery motion in which she contended that Tom had still not complied with outstanding discovery requests, despite repeated motions addressing the same deficiencies and repeated orders of the court requiring him to do so. On February 8, 2005, the court entered an order of incarceration in which it found that Tom had "willfully failed and refused to comply with this court's discovery orders, after being given repeated opportunities to comply." The court thus sentenced Tom to seven days in the Pulaski County Detention Center.³ Tom served all seven days of that sentence.

Following the completion of his jail sentence, the trial court entered a divorce decree on March 8, 2005. Contained within the divorce decree was a ruling on Jennifer's second motion for contempt. In addition to the court's previous contempt findings and the previous seven-day jail sentence, the court imposed "an additional sentence of two weeks (fourteen days') incarceration to be served by [Tom] as a result of his failure and refusal to abide by discovery orders throughout the course of this litigation." However, the court stayed the imposition of incarceration pending Tom's compliance with three conditions. Tom was ordered to: 1) pay an attorney's fee to Jennifer in the amount of $6,500, with half of that amount being due within thirty days of February 15, 2005; 2) sign any authorizations presented to him by Jennifer's counsel in order for Jennifer to have "unfettered access to investigate any assets, liabilities, real property, personal property, corporate property, or other property or ownership interests of any kind"; and 3) pay a $1,000 fine to the court within thirty days of February 15, 2005. If Tom failed to comply with all three conditions, the court found, he was to be incarcerated for an additional period of two weeks.⁴

On March 21, 2006, Jennifer filed an affidavit in which she asserted that her attorney's fees had not yet been paid, as ordered by the court in the divorce decree. She also noted that the court had not yet received the fine Tom was ordered to pay. Therefore, she requested that the court issue a pick-up order and body attachment for Tom's incarceration, which the court did on March 22, 2005.

On March 23, 2005, Tom filed a motion to rescind the pick-up order, contending that he had cured his contempt by personally going to Jennifer's attorney's office to pay her attorney's fee and tendering payment of $1,000 to the court. Attached to his motion was a copy of the checks he had written to Jennifer's attorney, dated March 22, 2005, and the receipt from the Pulaski County Clerk's office showing that the $1,000 was paid on March 23, 2005. Jennifer responded by pointing out that, even though Tom had paid the amounts ordered, the court's order directed that if he failed to meet all three conditions "within the time frame ordered by the court," he would be incarcerated. Tom also filed a motion to stay the property division ordered in the divorce decree pending the appeal. Jennifer responded that he had failed to post a supersedeas bond and thus was not entitled to a stay.

On March 28, 2005, Jennifer filed yet another motion for contempt. In this motion, she pointed out that the divorce decree ordered each party to timely make one-half of the mortgage payments, but Tom had failed to do so, causing the mortgage payments to be roughly ninety days behind. Jennifer noted several other orders in the divorce decree with which Tom had not complied, including his failure to reimburse Jennifer for part of the mortgages, to sell the couple's car, and to divide certain assets and liabilities. Tom responded to Jennifer's motion for contempt by arguing that he had appealed the divorce decree and did not wish to waive any defense he might have against the payments ordered in the decree; he also stated his willingness to post a reasonable bond. Nonetheless, the court issued a show-cause order, directing Tom to appear in court on April 28, 2005, and May 12, 2005.

The court held a hearing that began on May 12, 2005, and was continued to August 15, 2005. At the conclusion of the August 15 hearing, Tom wrote a check for...