Rogers v. Rogers, CA07-1217 (Ark. App. 3/11/2009)

• Court: Arkansas Court of Appeals
• Writing for the Court: M. Michael Kinard
• Decision Date: 11 March 2009
• Docket Number: CA07-1217.
• Citation: Rogers v. Rogers, CA07-1217 (Ark. App. 3/11/2009), CA07-1217. (Ark. App. Mar 11, 2009)
• Parties: Edmundo G. ROGERS, Appellant, v. Cynthia Ann ROGERS, Appellee.

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Edmundo G. ROGERS, Appellant, v. Cynthia Ann ROGERS, Appellee.

CA07-1217.

Court of Appeals of Arkansas, Division I.

Opinion Delivered March 11, 2009.

Appeal from the Benton County Circuit Court; [No. E00-1602-4]; Honorable John R. Scott, Judge.

Affirmed.

M. MICHAEL KINARD, Judge.

This is the sixth opinion issued by the Arkansas Court of Appeals since 2002 in the protracted divorce case of Edmundo and Cynthia Rogers. The current appeal arises from a Petition for Contempt filed by Ms. Rogers against Mr. Rogers based on his failure to pay child support, alimony, and attorney fees. The circuit court held Mr. Rogers in contempt, sentenced him to fifty days' incarceration, and ruled that he could purge his contempt by paying $50,000 toward the arrearages. Mr. Rogers appeals and asserts numerous arguments for reversal. We find no merit in any of the arguments and affirm the contempt order.

The Benton County Circuit Court entered the original divorce decree on February 26, 2001. The decree ordered Mr. Rogers to pay $1000 per month child support and a total of $9200 in alimony. Mr. Rogers appealed, and this court reversed and remanded on the ground that the circuit court lacked the authority to dissolve the marriage due to the parties' failure to corroborate residency. Rogers v. Rogers, CA01-790 (June 19, 2002) (not designated for publication) (Rogers I). During the pendency of that appeal, the circuit court held Mr. Rogers in contempt for failing to pay the decree's child-support and alimony awards. Mr. Rogers appealed those orders, and this court affirmed, ruling that the reversal in Rogers I did not affect the circuit court's jurisdiction to enforce the alimony and support awards. Rogers v. Rogers, 80 Ark. App. 430, 97 S.W.3d 429 (2003) (Rogers II). The next appeal also affirmed a contempt petition against Mr. Rogers and affirmed the circuit court's grant of permission to Ms. Rogers to relocate with the couple's children to Tulsa, Oklahoma. Rogers v. Rogers, CA02-699 (Aug. 27, 2003) (not designated for publication) (Rogers III).

While the appeals in Rogers II and III were pending, the parties returned to circuit court and produced corroborating evidence of residency. The circuit court then retried several aspects of the case and ordered Mr. Rogers to pay $300 per month in child support (as opposed to the original $1000) and no alimony (as opposed to the original $9200). Ms. Rogers appealed, and this court reversed for reinstatement of the original awards. Rogers v. Rogers, 90 Ark. App. 321, 205 S.W.3d 856 (2005) (Rogers IV). On February 27, 2006, the circuit court entered an order re-establishing the original child-support and alimony awards; calculating the arrearages owed by Mr. Rogers for child support ($32,455) and alimony ($9200); and awarding Ms. Rogers judgment for those amounts. Mr. Rogers appealed from that order, and this court affirmed in Rogers v. Rogers, CA06-848 (Sept. 19, 2007) (not designated for publication) (Rogers V).

The present proceedings occurred while Mr. Rogers's appeal was pending in Rogers V. On October 4, 2006, Ms. Rogers filed a Petition for Contempt asserting Mr. Rogers's failure to pay the support and alimony arrearages set forth in the February 27, 2006 order and his failure to pay attorney fees awarded to her throughout the case. Mr. Rogers moved to dismiss the petition, arguing that the circuit court lacked jurisdiction and that Ms. Rogers improperly served him with the petition. The circuit court denied the motion to dismiss, and the contempt hearing went forward on May 30, 2007, despite the parties' interim efforts to settle their dispute.

Edmundo Rogers did not appear at the contempt hearing. However, his attorney appeared and told the court that the contempt issue had been settled. Ms. Rogers and her attorney stated that no final settlement had been reached. Ms. Rogers also testified that Mr. Rogers owed her $18,037 in attorney fees and that he had paid very little on the child-support arrearage. Lois Barrett of the Benton County Child Support Office presented a computer print-out that reflected the amounts Mr. Rogers had paid toward the attorney-fee, alimony, and child-support arrearages. The court relied on that exhibit to determine that Mr. Rogers had paid $1950 in attorney fees; possibly $375 in past-due alimony (the record was not clear); and $2000 on past-due child support, which left him owing Ms. Rogers approximately $55,000 on all arrearages. The court found that Mr. Rogers had made no serious attempt to reduce the amounts he owed and that his contempt was willful. The court ordered Mr. Rogers incarcerated for fifty days with the option of purging his contempt by paying $50,000 toward the arrearages.

Mr. Rogers moved for a new trial or reconsideration, arguing, inter alia, that the court miscalculated the amounts he had paid on the arrearages. The circuit court denied the motion, and this appeal followed.

Circuit Court Jurisdiction

We first address Mr. Rogers's contention that the circuit court lacked jurisdiction to hold him in contempt. Mr. Rogers argues that the circuit court's failure to reserve jurisdiction in the February 27, 2006 arrearage order prohibited further action by the court with regard to the order. We disagree. The line of cases relied on by Mr. Rogers, as exemplified by Linn v. Miller, 99 Ark. App. 407, 261 S.W.3d 471 (2007), and Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988), hold that a circuit court's reservation of jurisdiction in a domestic-relations case generally preserves the court's power to modify an order. However, the circuit court in this case enforced rather than modified a prior order. A circuit court has jurisdiction to enforce a previous order, Stilley v. Fort Smith Sch. Dist., 367 Ark. 193, 238 S.W.3d 902 (2006), and contempt is the court's primary weapon for doing so. See David Newbern & John Watkins, Civil Practice & Procedure § 38:7 (4th ed. 2006). Arkansas Code Annotated sections 9-12-314(d) and 9-12-234(j) (Repl. 2008) also recognize the circuit court's power to enforce a decree or a support order through contempt proceedings when an arrearage is reduced to judgment. Moreover, Arkansas courts have repeatedly held that a circuit court retains jurisdiction over child support as a matter of public policy. See Maxwell v. State, 343 Ark. 154, 33 S.W.3d 108 (2000); Frigon v. Frigon, 66 Ark. App. 343, 989 S.W.2d 931 (1999). In light of these authorities, we see no jurisdictional barrier to the circuit court's entry of the contempt order.

Mr. Rogers also argues that the circuit court lacked jurisdiction to enter a contempt order while his appeal from a prior order was pending. As a general rule, the circuit court loses jurisdiction over the parties and subject matter of a case once the record is lodged on appeal. See Gore v. Heartland Comm. Bank, 356 Ark. 665, 158 S.W.3d 123 (2004). However, that rule is not invariably applied in support cases. In Goodin v. Goodin, 240 Ark. 541, 542, 400 S.W.2d 665, 666-67 (1966), the Arkansas Supreme Court stated that it would sustain the trial court's "continuing power to enforce its decrees for support or child custody despite the pendency of an appeal." Mr. Rogers attempts to distinguish Goodin by arguing that it does not apply to an appeal from a final judgment, but this is simply incorrect. The trial court in Goodin entered a final divorce decree and a writ of supersedeas; the issue on appeal was whether a payor could obtain a stay of the monthly support payments contained in a divorce decree.

Similarly, Arkansas courts have recognized that a support payor is not absolutely entitled to a stay pending appeal. In Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007), the supreme court held that a party is bound to obey a divorce decree that is on appeal and that the appeal does not stay proceedings under the decree. In Rogers II, supra, this court held that a party cannot avoid making court-ordered support payments simply by taking an appeal, lest the family of the payor suffer while an appeal is pending. We therefore conclude that the circuit court retained jurisdiction to issue a contempt citation against Mr. Rogers.

Mr. Rogers also suggests that the circuit court lacked jurisdiction ab initio, given the parties' initial failure to corroborate residency. This omission was subsequently remedied and in any event, Rogers II declared that the circuit court retained the authority to enforce its original support orders.

Service of the Contempt Petition

Mr. Rogers argues that he was not properly served with the contempt petition. We conclude that the record demonstrates otherwise.

This was a case in which a final judgment had been entered and the circuit court had continuing jurisdiction, so Ms. Rogers was required to serve the petition on Mr. Rogers rather than his attorney. See Ark. R. Civ. P. 5(b)(1). Ms. Rogers employed a process server to serve the petition on Mr. Rogers while he visited the children in Tulsa. The server's affidavit states that he is a certified process server in good standing; that he received papers to be served on Edmundo Rogers; and that he "individually served the within named person" with a true copy of the summons and contempt petition. The summons's return of service states that the server delivered a copy to "the person named therein as defendant," who was identified as Edmundo Rogers. The server's representations comply with Ark. R. Civ. P. 5(b)(2), which requires personal delivery to the defendant.¹ Mr. Rogers's affidavit states that he was not personally served and that an individual he did not know left the papers on the windshield of his rented vehicle. But, his affidavit is not conclusive, given his status as an interested party. See Dyson v Ferncliff Props., Inc., 16 Ark. App. 64, 696 S.W.2d 767 (1985). We therefore decline to reverse on the ground of improper service.²

Mr. Rogers also asserts that Ms. Rogers lured him to Tulsa...