Rudder v. Hurst

• Court: Arkansas Court of Appeals
• Writing for the Court: West Codenotes
• Citation: Rudder v. Hurst, 2009 Ark. App. 577, 337 S.W.3d 565 (Ark. App. 2009)
• Decision Date: 09 September 2009
• Docket Number: No. CA 08–486.,CA 08–486.
• Parties: James Kevin RUDDER, Appellant,v.Katharine Lillie HURST, Appellee.

2009 Ark. App. 577

337 S.W.3d 565

James Kevin RUDDER, Appellant,

v.Katharine Lillie HURST, Appellee.

No. CA 08–486.

Court of Appeals of Arkansas.

Sept. 9, 2009.

OPINION TEXT STARTS HEREWest CodenotesRecognized as InvalidRules Civ.Proc., Rule 83

Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by Sam Hilburn, Traci LaCerra, Shea Halbert, and Susan Coleman, Little Rock, for appellant.J. Sky Tapp, Hot Springs, for appellee.COURTNEY HUDSON HENRY, Judge.

[Ark. App. 1] Appellant Kevin Rudder appeals the Garland County Circuit Court's divorce decree ending his marriage to appellee Katie Hurst. For reversal, appellant contends that the trial court erred by (1) retroactively modifying the temporary order; (2) issuing a standing restraining order; (3) requiring him to pay the children's counseling expenses; (4) not giving him credit for making payments on marital debt; (5) holding him responsible for the payment of marital debt and tax liability; (6) excluding certain testimony of his expert witness; (7) ordering him to maintain life insurance; (8) admitting into evidence the report of the attorney ad litem; and (9) directing him to pay temporary alimony and appellee's counseling expenses. We find no reversible error and affirm the decree in all respects.

The parties separated in May 2005 after ten years of marriage. Appellee gave birth to one daughter in 1998 and another in 1999. Appellant is a board-certified orthopedic surgeon, [Ark. App. 2] who practices in Hot Springs. Appellee is also a medical doctor, and she completed residencies in pediatrics and internal medicine but is board certified only in pediatrics. Initially, appellee opted to stay at home to raise the children, but in 2002, she began practicing internal medicine part-time.

After a temporary hearing held on September 6, 2005, the trial court awarded appellee temporary custody of the minor children along with child support. In the final decree, entered on January 2, 2008, the trial court granted appellee a divorce and custody of the children. The court accepted the parties' stipulation as to appellant's monthly income of $37,000 and set his child-support obligation at $6,756.92 per month. The court noted that the amount of current child support exceeded the child-support obligation contained in the temporary order and retroactively awarded appellee judgment for the difference, payable at an additional $1,357.38 per month. The trial court also ordered appellant to pay temporary alimony for three years at the rate of seven percent of his net income. To secure the payment of child support and alimony, the trial court directed appellant to maintain a $1,000,000 life insurance policy, designating the children as the beneficiaries of the policy. The trial court also accepted the recommendations contained in the attorney ad litem's report, which included the suggestion that appellee and the children continue to receive counseling at appellant's expense. In addition, the trial court equally divided the parties' marital property, including the proceeds from appellant's sale of his interests in two limited-liability companies during the pendency of the divorce. The court ordered appellant responsible for the 2006 tax liability and the balance on a credit card. Finally, the court ordered appellant to pay all but $20,000 [Ark. App. 3] of a consolidation loan with a balance of $86,684. The court placed the responsibility for $20,000 of this debt on appellee because this amount was used to retire her student loan. This appeal followed.

Retroactive modification of temporary support order

Appellant first argues that the trial court erred by retroactively increasing the amount of child support set in the temporary order. To begin with, the record reflects that the trial court held a temporary hearing on September 6, 2005, but the time allotted for the hearing expired before the court could resolve all the issues. At the conclusion of the hearing, the trial court stated that it did not have sufficient information to make a reasoned determination as to the proper amount of child support. Nonetheless, the trial court awarded appellee temporary custody of the parties' children and ordered appellant to pay $2,544 on a biweekly basis in child support. The court, however, expressed its intention to resolve any difference between the amount set in the temporary order and the actual amount owed as determined at the final hearing. Neither party objected. Thereafter, the court scheduled the final divorce hearing to be held in October 2005. After several continuances, the final hearing took place over four days commencing on March 30, 2007, and concluding on October 31, 2007.

At the final hearing, the parties presented the trial court with a stipulation for appellant's child-support obligation at $6,756.92 per month. Appellee reminded the court of its intention to cure any deficiency between the temporary order of support and the amount awarded in the final decree. This time, and over appellant's objection, the trial court granted appellee judgment for the difference, payable at a monthly rate of $1,357.38. In its [Ark. App. 4] calculations, the trial court determined that the difference between the current agreed amount of monthly support ($6,756.92) and the temporary amount of monthly support ($5,088) yielded $1,668.92. The court then multiplied that amount by twenty-eight, the number of months separating the two orders, to arrive at a judgment of $46,729.76.

Appellant argues that the trial court erred by retroactively modifying the temporary support order. He contends that the trial court lacked the authority to do so based on Arkansas Code Annotated section 9–14–234 (Repl.2008), which provides in pertinent part:

(b) Any decree, judgment, or order that contains a provision for the payment of money for the support and care of any child or children ... shall be final judgment as to any installment or payment of money that has accrued until the time either party moves through proper motion filed with the court and served on the other party to set aside, alter, or modify the decree, judgment, or order.

A similar prohibition against retroactive modification is also found in Arkansas Code Annotated section 9–12–314(b) (Repl.2008).

Appellant also relies on such cases as Shipp v. Shipp, 94 Ark.App. 351, 230 S.W.3d 305 (2006), and Yell v. Yell, 56 Ark.App. 176, 939 S.W.2d 860 (1997), to support his argument. However, both Shipp and Yell involve the modification of final divorce decrees, not temporary orders.

Our question here is whether section 9–14–234 prohibits the modification of a temporary support order. We review traditional equity cases on both factual and legal questions de novo on the record, but we will not reverse a finding by the circuit court unless it is clearly erroneous. Allen v. Allen, 99 Ark.App. 292, 259 S.W.3d 480 (2007). We do not defer to the circuit court's determinations of law. Id.

[Ark. App. 5] Considering established Arkansas law, we note that the purpose of a temporary order is not to finally dispose of the litigation but to serve the ends of justice until a final hearing can be held. Harrison v. Terry Dairy Prods. Co., 225 Ark. 953, 287 S.W.2d 473 (1956). Also, the supreme court has held that the rules against vacating or modifying a final order have no application to interlocutory judgments or orders, and such orders may be vacated or modified at any time before the final judgment is entered. Hardy v. Hardy, 217 Ark. 296, 230 S.W.2d 6 (1950). We further observe that a final decree of divorce supercedes any temporary order of support. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999).

In the present case, the facts compel our conclusion. The temporary hearing was not fully completed, and the trial court specifically noted that it lacked enough information to determine the appropriate amount of child support. Due to time constraints, the court stated its intention to rectify any inequities that might result from setting temporary support without having all of the relevant information. We note that temporary hearings are typically brief and occur prior to the opportunity for adequate discovery. For this reason, parties are required by Administrative Order No. 10 to complete affidavits of financial means, and trial courts by necessity must rely on self-reporting to establish an amount of temporary support. Where, as here, a trial court reserves judgment until later determination, we perceive no error when the trial court makes any contemplated adjustments.¹

[Ark. App. 6] As part of this point on appeal, appellant also asserts that the trial court erred in calculating the amount of the underpayment. While the trial court found the monthly amount of temporary support to be $5,088, the appellant claims that the correct amount is $5,512. The record reflects that the temporary order set support at $2,544 payable on a biweekly basis, and it is clear to us that the court merely doubled this amount to arrive at the sum paid per month. Appellant suggests that the trial court should have multiplied the biweekly amount by twenty-six and divided that number by twelve to arrive at the monthly amount of support set in the temporary order. While appellant proposes an alternative to the trial court's calculations, he has not demonstrated that the method employed by the trial court was clearly erroneous.

Standing restraining order

Second, appellant claims that the trial court erred by using a standing restraining order. The judges of the Garland County Circuit Court issued in July 2001 a standing restraining order applicable to all parties in divorce actions filed in their courts. The order seeks to regulate the conduct of parties in divorce proceedings both as to financial matters and as to how they interact with one another and their children. Appellant argues that a standing order violates the supreme court's prohibition against local rules as enunciated by the court...