Symanietz v. Symanietz

• Decision Date: 09 September 2020
• Docket Number: No. CV-19-625,CV-19-625
• Citation: 2020 Ark. App. 394,609 S.W.3d 643
• Parties: Charles SYMANIETZ, Appellant v. Deborah SYMANIETZ, Appellee
• Court: Arkansas Court of Appeals

2020 Ark. App. 394

609 S.W.3d 643

Charles SYMANIETZ, Appellant

v.Deborah SYMANIETZ, Appellee

No. CV-19-625

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: September 9, 2020

Kezhaya Law PLC, by: Matthew A. Kezhaya, Bentonville, Josie N. Graves, and Sonia A. Kezhaya, for appellant.

One brief only.

RITA W. GRUBER, Chief Judge

On March 18, 2020, in Symanietz v. Symanietz , 2020 Ark. App. 189, 598 S.W.3d 839, we affirmed the parties' divorce decree entered by the circuit court on January 22, 2019. On April 6, 2020, Charles Symanietz filed a petition for rehearing; Deborah Symanietz did not file a response. We grant the petition for rehearing and issue the following substituted opinion affirming the circuit court's decree.

Charles and Deborah were married in 1991 and separated in September 2017. At the time of the divorce, the parties had two minor children and a disabled adult daughter, all three of whom lived with Deborah. The parties' sole source of income since 2009 had been their jointly owned trucking business, Symanietz Enterprises. Charles drove the truck, and Deborah managed the business, which included dispatching and accounting. At the final divorce hearing held on November 8, 2018, the court first addressed Deborah's motion for contempt for Charles's failure to pay previously ordered child support. In the January 2019 divorce decree, the court found Charles in contempt and ordered him to pay $160 a month until the $3,500 arrearage had been paid in full. The court then awarded custody of the children to Deborah, imputed income of $3,400 per month to Charles, and set child support at $800 per month. The court also ordered Charles to pay $100 a month in rehabilitative alimony for two years so long as Deborah was receiving $2,000 a month in income from Symanietz Enterprises. If Symanietz Enterprises stopped paying Deborah (and she had not voluntarily terminated her employment), then Charles's alimony obligation increased to $2,000 per month for the remainder of the two-year period. Finally, the court found that it was not bound by a purported mediation agreement between the parties that agreed on the disposal of certain real property.

Less than two months after the divorce decree was entered, Deborah moved for contempt and asserted that Charles had failed to pay child support, child-support arrearages, and costs and attorney's fees as ordered. After a hearing on May 29, 2019, Charles was held in direct criminal contempt of court and sentenced to ten days in the Benton County jail. In a separate order filed June 5, 2019, the court found Charles in willful contempt of the court's order from the divorce decree and ordered that he be incarcerated for fourteen days in the Benton County jail, to run consecutively to the previous ten-day sentence. The circuit court entered a total judgment of $15,000 for unpaid spousal support and attorney's fees and found that Charles could "purge himself of the 14-day sentence for Contempt by paying this amount to the Plaintiff." Charles filed an amended notice of appeal from both contempt orders on July 8, 2019. On appeal, he contends that the circuit court erred in calculating the amount of child support awarded, awarding alimony to Deborah, not honoring the parties' mediation agreement, and holding him in contempt.

I. Child Support

For his first point on appeal, Charles asserts that the circuit court erred in its calculation of child support. Our standard of review for an appeal from a child-support order is de novo on the record, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Hall v. Hall , 2013 Ark. 330, 429 S.W.3d 219. In reviewing a circuit court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. As a rule, when the amount of child support is at issue, we will not reverse the circuit court's order absent an abuse of discretion. Id. However, a circuit court's conclusion of law is given no deference on appeal. Id.

In determining the appropriate amount of child support, courts refer to the family support chart contained in Administrative Order No. 10, which provides a means of calculating child support based on the payor's net income. Cowell v. Long , 2013 Ark. App. 311, 2013 WL 1919581. Arkansas Supreme Court Administrative Order No. 10(III)(c) provides that for self-employed payors, the circuit court should first consider the payor's tax returns, specifically the last two years' federal and state income tax returns. See also Tucker v. Office of Child Support Enf't , 368 Ark. 481, 247 S.W.3d 485 (2007). Section (III)(c) also dictates that the circuit court "shall consider the amount the payor is capable of earning or a net worth approach based on property, life-style, etc." Arkansas Supreme Court Administrative Order No. 10(III)(d) provides that "[i]f a payor is unemployed or working below full earning capacity, the court may consider the reasons therefor. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a payor up to his or her earning capacity, including consideration of the payor's life-style."

Charles first asserts that the circuit court failed to follow the proper procedure in determining his income. He claims that the circuit court was required to consider his tax returns for the prior two years before it could impute any income to him and that it had to make a written finding explaining why imputation of income was necessary. The 2016 and 2017 tax returns show Charles's share of the parties' income was $34,166 and $32,746, respectively, and Charles contends that the circuit court should have based the child-support order on those figures.

What Charles's argument fails to recognize is that the circuit court was not limited to his tax returns; under section (III)(c), the court "shall consider the amount the payor is capable of earning," and under section (III)(d), the court "may attribute income to a payor up to his or her earning capacity." The circuit court found that Charles was working below his full earning capacity and therefore imputed an income that the circuit court deemed reasonable, specifically making the following findings at the hearing:

[b]ased on the evidence that I've seen here, this was a struggle to make ends meet, largely because Mr. Symanietz chose not to drive from time to time.... [I]t has been obvious that Mr. Symanietz works at this business when he chooses to, and when the trouble came, for whatever reason, between these two, he chose not to do so so regularly.

....

I am convinced, based on the IRS records and the work records that have been provided in the course today, that Mr. Symanietz is very capable of earning a minimum of $3400 a month if he applies himself at this trucking business, and I impute that income to him and set child support at $800 per month.

This was not error.

Secondly, Charles contends that the circuit court erred in imputing income because his income had not been reduced "as a matter of choice and without reasonable cause." He argues that Deborah stopped working for the family business in the face of divorce proceedings and that she took business funds for personal use, and he implies that this is what caused his decline in income. He also asserts that the circuit court assessed him with an imputed income beyond his earning capacity because he had no functioning vehicle, no dispatcher, and no funds to pay for either.

The circuit court heard testimony from both parties on the state of their finances and the reasons behind them, and we give due deference to the court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Hall , 2013 Ark. 330, at 4, 429 S.W.3d 219 –22. We hold that the court did not clearly err in imputing Charles's income.

II. Spousal Support

Arkansas Code Annotated section 9-12-312(a) provides that the circuit court may enter an order concerning alimony that is "reasonable from the circumstances of the parties and the nature of the case." Ark. Code Ann. § 9-12-312(a) (Supp. 2019). The purpose of alimony is to rectify the economic imbalance in earning power and standard of living in light of the particular facts in each case, and the primary factors to be considered in determining whether to award alimony are the financial need of one spouse and the other spouse's ability to pay. Foster v. Foster , 2016 Ark. 456, at 9, 506 S.W.3d 808, 814–15. The circuit court may also consider secondary factors, such as (1) the financial circumstances of both parties; (2) the couple's past standard of living; (3) the value of jointly owned property; (4) the amount and nature of the parties' income, both current and anticipated; (5) the extent and nature of the resources and assets of each of the parties; (6) the amount of income of each that is spendable; (7) the earning ability and capacity of each party; (8) the property awarded or given to one of the parties, either by the court or the other party; (9) the disposition made of the homestead or jointly owned property; (10) the condition of health and medical needs of both husband and wife; (11) the duration of the marriage; and (12) the amount of child support (if applicable). Moore v. Moore , 2016 Ark. 105, at 10–11, 486 S.W.3d 766, 773. There is no mathematical formula or bright-line rule in awarding alimony because the need for flexibility outweighs the need for relative certainty. Nauman v. Nauman , 2018 Ark. App. 114, at 8, 542 S.W.3d 212, 217.

We will not reverse a circuit court's decision regarding an award of alimony absent an abuse of discretion. Perser v. Perser , 2019 Ark. App. 467, at 10, 588 S.W.3d 395, 403. An abuse of discretion means discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Webb v. Webb , 2014 Ark. App. 697, at 3,...