Rye v. Rye

• Decision Date: 02 June 2021
• Docket Number: No. CV-20-89,CV-20-89
• Citation: 625 S.W.3d 761,2021 Ark. App. 286
• Court: Arkansas Court of Appeals
• Parties: Erik RYE, Appellant v. Sonia RYE, Appellee

2021 Ark. App. 286

625 S.W.3d 761

Erik RYE, Appellant

v.Sonia RYE, Appellee

No. CV-20-89

Court of Appeals of Arkansas, DIVISIONS I & II.

Opinion Delivered June 2, 2021

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

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

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 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 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 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 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...