Schwarz v. Moody

Annotate this Case
Marilyn Moody SCHWARZ v. Randy Lee MOODY

CA 94-695                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
              Opinion delivered September 18, 1996


1.   Divorce -- considerations in deciding petition for change of
     custody -- chancellor has heavy burden to determine child's
     best interests. -- In deciding a petition for change of
     custody, the chancellor must first determine whether there has
     been a significant change in the circumstances of the parties
     since the most recent custody decree; if a significant change
     has occurred, then the chancellor determines custodial
     placement with the primary consideration being the best
     interest of the child; child-custody cases cast a heavier
     burden upon the chancellor to utilize to the fullest extent
     all powers of perception in evaluating the witnesses, their
     testimony, and the children's best interests.

2.   Appeal & error -- chancery cases reviewed de novo --
     chancellor's finding that there was no significant change in
     circumstances not clearly against preponderance of evidence. -
     - Although chancery cases are reviewed de novo, the
     chancellor's findings are not disturbed unless they are
     clearly against the preponderance of the evidence; since the
     question of the preponderance of evidence turns largely upon
     the credibility of the witnesses, the court defers to the
     superior position of the chancellor to make such
     determinations; here, upon de novo review, the appellate court
     determined that the chancellor's finding that there was no
     significant change in the parties' circumstances was not
     clearly against the preponderance of the evidence. 

3.   Divorce -- requirement for modification of child support --
     chancellor's refusal to terminate child support not clearly
     erroneous. -- A change in circumstances must be shown before
     a court can modify an order regarding child support; a
     chancellor's determination as to whether there are sufficient
     changed circumstances to warrant a change in child support is
     a finding of fact, and this finding will not be reversed
     unless it is clearly erroneous; here, appellant was unemployed
     when the support amount was first set and she remained
     unemployed when the chancellor refused to terminate support;
     the chancellor's finding that appellant's inability to work
     did not represent a significant change in circumstances was
     not clearly erroneous. 

4.   Attorney & client -- award of attorney's fees in domestic
     relations proceedings -- chancellor's decision will not be
     disturbed absent an abuse of discretion. -- A court of equity
     has an inherent power to award attorney's fees in domestic
     relations proceedings; whether to allow such fees and in what
     amounts are matters within the chancellor's discretion; in the
     absence of a clear abuse of discretion in fixing the fee, the
     court will not disturb the chancellor's decision on appeal.  

5.   Appeal & error -- argument made without authority or
     convincing argument -- issue without merit. -- Appellant
     husband's argument that he was outside the chancellor's
     jurisdiction regarding attorney's fees was not reached where
     no authority or convincing argument regarding this issue was
     provided. 

6.   Attorney & client -- award of attorney's fees -- no abuse of
     discretion or failure of proof found. -- The arguments
     regarding the chancellor's abuse of discretion and an alleged
     failure of proof regarding the amount of fees were without
     merit where the debt was recognized and listed in the
     bankruptcy proceedings, appellant and her husband stipulated
     through their attorney via pleadings submitted in the
     bankruptcy case that the attorney's files and records did
     contain documentation sufficient to sustain his affidavit for
     services rendered, the bankruptcy court relied upon those
     stipulations in determining the amount of the fees, and the
     chancellor entered the same amount as the bankruptcy court in
     the chancellor's November 1994 order, following additional
     hearings on the matter in chancery court; in the absence of
     fraud, a client is bound by the acts of his attorney within
     the scope of his authority; appellant and her spouse could not
     deny the accuracy of the stipulated amount. 

7.   Attorney & client -- chancellor's finding challenged --
     argument without merit. -- The challenge to the chancellor's
     finding that the attorney's fees were so intertwined with
     custody and support issues as to be directly related to
     support was without merit; a chancellor is not limited to
     support issues in awarding attorney's fees in a domestic
     relations proceeding; moreover, the chancellor's use of the
     phrase "so intertwined" does not necessarily mean the fees
     represented a majority of time devoted exclusively to support;
     rather, it can as easily mean merely that the fees were "so
     intertwined" as to directly relate to support.

8.   Civil procedure -- Rule 11 sanctions -- how determined and
     reviewed. -- Where a violation of Ark. R. Civ. P. 11 occurs,
     the rule makes sanctions mandatory; whether a violation of
     Rule 11 occurred is a matter for the court to determine, and
     this determination involves matters of judgment and degree; in
     reviewing a trial court's determination, the appellate court
     does so under an abuse-of-discretion standard.

9.   Civil procedure -- Rule 11 sanctions not in error -- no abuse
     of discretion found. -- The chancellor's award of sanctions
     under ARCP Rule 11 against appellant, her husband, and their
     attorney, jointly and severally, was not error where the
     record reflected the protracted nature of the case, lasting
     for some twelve years, the brief submitted acknowledged that
     the provisions of ARCP Rule 11 were designed to stop the
     needless delay and expense of pleadings interposed without a
     good faith belief in their validity, and also acknowledged
     that the pleading in question raised "what may be considered
     technical defenses," including standing, laches, jurisdiction,
     and inequitable enforcement; there was no abuse of discretion
     in the chancellor's award of sanctions in this case.
                                
10.  Judges -- recusal argument meritless -- chancellor's refusal
     to recuse not an abuse of discretion. -- Appellant's argument
     that the chancellor should have recused had no merit where the
     chancellor disclosed early in the proceedings that he knew
     appellee's brother, an attorney, and that the brother's office
     had been located close to that of the chancellor's;
     disqualification is discretionary with the judge, and the
     court's decision in that regard will not be reversed absent an
     abuse of discretion; the party seeking disqualification bears
     a substantial burden to prove impartiality. 

11.  Judges -- only external matters are considered for recusal
     purposes -- development of opinions during a trial does not
     create such bias as to require disqualification. -- Only
     external matters are considered for purposes of recusal; the
     development of opinions, biases, or prejudices during a trial
     does not make the trial judge so biased as to require his or
     her disqualification from further proceedings. 

12.  Appeal & error -- excessive abstracting violative of rules --
     appellant's counsel guilty of excessive abstracting. --
     Excessive abstracting is as violative of court rules as
     omissions of material pleadings, exhibits, and testimony;
     where appellant's abstract consisted of three volumes,
     totaling 575 pages, appellant's counsel clearly failed to
     adhere to abstracting rules. 


     Appeal from Pulaski Chancery Court; Collins Kilgore,
Chancellor; affirmed.
     T.B. Patterson, Jr. P.A., for appellant.
     No response.

     John F. Stroud, Jr., Judge.         
     In this one-brief case, appellant Marilyn (Moody) Schwarz
appeals from a chancery court order entered on October 27, 1993. 
The order, among other rulings, denied her motions to change
custody from appellee, Randy Lee Moody, and to terminate child
support.  After appellant filed her notice of appeal, she requested
and was granted various stays of appeal by this court while other
matters were addressed by the chancellor.  On November 17, 1994,
the chancellor entered two additional orders.  In one, he denied
appellant's motion to recuse and supplemented a March 11, 1992,
supplemental order by making definite the amount of attorney's fees
appellant and her husband, Karl "Bill" Schwarz, had previously been
ordered to pay appellee's attorney, David H. Williams.  In the
other, he sanctioned appellant, her husband Bill Schwarz, and their
attorney T.B. Patterson, Jr., jointly and severally, for violations
of ARCP Rule 11.  Appellant filed her amended notice of appeal on
November 28, 1994, in which Mr. Schwarz and Mr. Patterson joined
pursuant to Rule 3(c) of the Rules of Appellate Procedure.  We
affirm the chancellor's rulings.
     The background facts of this case are too long and tortuous to
recount in great detail.  It is sufficient to state that the
parties were divorced in 1984. Custody of the two minor children
was originally granted to appellant and then subsequently awarded
to appellee.  Their daughter, Brandi, was five years old at the
time of the divorce.  She is now seventeen.  Appellant and appellee
subsequently married each other's ex-spouses.  The intervening
years have been filled with vitriolic motions and hearings,
culminating in this appeal.
                        CHANGE OF CUSTODY
     In her first point of appeal, appellant argues that the
chancellor erred in denying a change of custody with respect to
Brandi.  There was no error. 
     On June 4, 1991, appellant filed a motion for change of
custody.  At that time, appellant and her husband, Bill Schwarz,
were living in Virginia.  Brandi made allegations of sexual abuse
against her father, the appellee; however, she also subsequently
recanted the allegations, explaining that her stepfather, Mr.
Schwarz, had threatened to harm her mother, appellant, if Brandi
did not make the allegations.  There were also proceedings
concerning these sexual abuse allegations in the juvenile division
of chancery court.  The juvenile court dismissed the petition for
lack of sufficient evidence.  Brandi had also made allegations of
sexually inappropriate conduct against Mr. Schwarz.  The chancellor
held approximately three days of hearings on the change-of-custody
request and other pending motions.  The chancellor's March 11,
1992, order left custody with appellee, and ordered that Brandi
remain temporarily with her paternal grandparents.
     On May 17, 1993, appellant filed yet another motion "renewing"
her motion for change of custody of Brandi.  In it she alleged
appellee was not cooperating in scheduling counseling for Brandi
and consequently her therapeutic needs were not being met. 
Hearings on the motion were held June 7, 1993, and October 14,
1993.  Brandi was represented by an attorney ad litem.  Dr. Janice
Church, a clinical psychologist, testified at the hearings on this
motion.  In the June 7, 1993, hearing she testified that she did
not believe Brandi had received, nor would she receive, support for
treatment while living with appellee; that, ideally, a more neutral
living situation would allow Brandi to work on issues regarding
appellant; that she did not feel it would be in Brandi's best
interest to be with her mother, appellant, at that time; and that
Brandi had never recanted to her the allegations of sexually
inappropriate conduct involving Mr. Schwarz.
     In the October 14, 1993, hearing Dr. Church testified that
appellee had cooperated with counseling in the beginning but not
recently; that she had not seen Brandi since April; that she was in
a difficult position to answer where Brandi should be placed; and
that she was not certain custody should be suddenly changed to
appellant.  After the October hearing, the chancellor entered his
October 27, 1993, order.  In it he determined that no sufficient
change in circumstances existed to require a change in custody.
     In deciding a petition for change of custody, the chancellor
must first determine whether there has been a significant change in
the circumstances of the parties since the most recent custody
decree.  If a significant change has occurred, then the chancellor
determines custodial placement with the primary consideration being
the best interest of the child.  Riley v. Riley, 45 Ark. App. 165,
873 S.W.2d 564 (1994).  Although we review chancery cases de novo,
we do not disturb the chancellor's findings unless they are clearly
against the preponderance of the evidence.  Id.  Since the question
of the preponderance of evidence turns largely upon the credibility
of the witnesses, this court defers to the superior position of the
chancellor to make such determinations.  Id.  Child-custody cases
cast a heavier burden upon the chancellor to utilize to the fullest
extent all powers of perception in evaluating the witnesses, their
testimony, and the children's best interests.  Clark v. Reiss, 38
Ark. App. 150, 831 S.W.2d 622 (1992).  We have reviewed this case
de novo.  The chancellor's finding that there was no significant
change in the parties' circumstances was not clearly against the
preponderance of the evidence.  We defer to his superior position
in this case to determine the credibility of the witnesses and the
best interests of the child.


                          CHILD SUPPORT
     In her second point of appeal, appellant argues that the
chancellor erred in refusing to terminate child support.  In the
March 11, 1992, order the chancellor ordered appellant to pay child
support in the amount of $30.00 per week and one-half of medical
expenses not covered by insurance.  He did so despite the fact that
she was unemployed.  Appellant asserts that although she was
unemployed when such support was awarded in 1992, she had become
unable to work by the time the October 27, 1993, order was entered. 
She maintains that those circumstances represent a significant
change which warranted the termination of support.  We disagree.
     A change in circumstances must be shown before a court can
modify an order regarding child support.  Irvin v. Irvin, 47 Ark.
App. 48, 883 S.W.2d 862 (1994).  A chancellor's determination as to
whether there are sufficient changed circumstances to warrant a
change in child support is a finding of fact, and this finding will
not be reversed unless it is clearly erroneous.  Id.  Appellant was
unemployed when the support amount was first set.  She remained
unemployed when the chancellor refused to terminate support.  The
chancellor's finding that appellant's inability to work did not
represent a significant change in circumstances is not clearly
erroneous.  See Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835
(1992) (finding no error when chancellor set support at the minimum
level required of an unemployed person). In fact, if appellant is
now unemployable rather than merely unemployed, there exists the
possibility she may be entitled to monetary benefits that would not
previously have been available to her.
                         ATTORNEY'S FEES
     The third point of appeal challenges the chancellor's award of
attorney's fees, arguing that they should be set aside as an abuse
of discretion, as outside of the chancellor's jurisdiction with
respect to Bill Schwarz, and as lacking proof of amount. 
Furthermore, the chancellor's finding that the fees were so
intertwined with custody and support issues as to be directly
related to support is challenged.  The arguments have no merit.  
     We have recognized the inherent power of a court of equity to
award attorney's fees in domestic relations proceedings.  Irvin v.
Irvin, 47 Ark. App. 48, 883 S.W.2d 862 (1994).  Whether to allow
such fees and in what amounts are matters within the chancellor's
discretion.  Price v. Price, 29 Ark. App. 212, 780 S.W.2d 342
(1989).  In the absence of a clear abuse of discretion in fixing
the fee, we will not disturb the chancellor's decision on appeal. 
Id.  After carefully reviewing the voluminous record in this case,
we find no clear abuse of discretion.  
     The chancellor awarded attorney and other professional fees in
the supplemental order filed March 11, 1992.  Specific dollar
amounts were entered for the other professional fees, but not for
attorney's fees.  However, the percentage basis of the award and
the persons charged with its payment, the Schwarzes, were set
forth.  During the December 1991 hearing that resulted in the March
11, 1992, order the only issue raised with respect to the court's
award of attorney's fees challenged any connection of those fees to
child support.  No other issue argued here was raised at that
hearing.  Ordinarily, we would dispose of those issues on that
basis alone.  However, subsequent events in this unique case make
it necessary to set forth additional facts and other bases for our
affirmance.  
     At the time of the December 1991 hearing, two cases were being
tried together before the chancellor.  One was the instant case,
which involved appellant, Marilyn (Moody) Schwarz, and appellee,
Randy Moody.  The other case involved Bill Schwarz and Lois
(Schwarz) Moody, appellee's wife.  Mr. Patterson represented both
Marilyn and Bill Schwarz in their respective cases.
     The Schwarzes subsequently filed for bankruptcy.  Mr. Williams
was listed as a creditor in the Chapter 7 bankruptcy filed by
appellant and her husband, even though the exact amount of his fees
was not then known.  One of the pleadings from the bankruptcy
proceedings was entitled, "Stipulation by the Parties."  Included
in the stipulations was the fact that Mr. Floyd Healy, the
Schwarzes' bankruptcy attorney, had examined Mr. Williams's files
and records concerning his services rendered in the chancery case
and in the juvenile proceedings, and that they contained sufficient
documentation to support Mr. Williams's affidavit for services in
the amount of $16,794.56.  By order entered September 12, 1994, the
bankruptcy court ruled on a motion filed by the debtors, Bill and
Marilyn Schwarz:
          After hearing arguments, this Court finds that the
     motion is without merit and will deny the same.  The
     chancery court by previous order determined that 80% of
     the plaintiff's legal services were in the nature of
     support.  This Court conducted an evidentiary hearing on
     July 29, 1994 and at this hearing, the parties stipulated
     that the plaintiff's files and records contained
     sufficient documentation to sustain the plaintiff's
     request for 80% of $16,794.56 and is entitled to an award
     and judgment of $13,435.65 which is non-dischargeable.
     The parties subsequently returned to chancery court and,
following two hearings, the chancellor entered the November 17,
1994, order that set forth the specific amount of attorney's fees
owed by the Schwarzes to Mr. Williams, $13,435.65.  An amended
notice of appeal was then filed in which Bill Schwarz joined
pursuant to Appellate Rule of Procedure 3(c).
     We first address the argument that Bill Schwarz was outside
the chancellor's jurisdiction regarding attorney's fees.  Not only
has Mr. Schwarz provided us with no authority or convincing
argument regarding this issue, we cannot discern any.  See Dixon v.
State, 260 Ark. 857, 545 S.W.2d 606 (1977) (assignments of error
presented by counsel in their brief, unsupported by convincing
argument or authority, will not be considered on appeal unless it
is apparent without further research that they are well taken). 
The cases were tried together, and both Marilyn and Bill Schwarz
were represented by the same attorney.  Furthermore, we endorse the
chancellor's following determination:
     [O]n the basis that I'm tired of dancing around about
     this thing that I've been doing since I took this office
     several years ago.  That Bill Schwarz has driven this
     thing from the start.  That he doesn't want to pay.  He's
     trying to dodge it.  It's unjust.  It's unfair.  It
     causes a lot of trouble for a lot of people.  It clogs up
     the docket in this court.  He has lost, and he can't
     accept it.

     The arguments regarding the chancellor's abuse of discretion
and an alleged failure of proof regarding the amount of fees are
without merit.  Any problems with the March 1992 supplemental order
regarding the lack of a specific dollar amount were cured by the
subsequent events in this case.  The debt was recognized and listed
in the subsequent bankruptcy proceedings.  Bill and Marilyn Schwarz
stipulated through their attorney via pleadings submitted in the
bankruptcy case that "Mr. Williams' files and records did contain
documentation sufficient to sustain his affidavit for services
rendered in the sum of $16,794.56."  The bankruptcy court relied
upon those stipulations in determining the amount of the fees.  In
the absence of fraud, a client is bound by the acts of his attorney
within the scope of his authority.  White v. White, 50 Ark. App.
240, 905 S.W.2d 485 (1995).  The chancellor entered the same amount
as the bankruptcy court in the chancellor's November 1994 order,
following additional hearings on the matter in chancery court. 
Bill and Marilyn Schwarz cannot now deny the accuracy of this
stipulated amount.  See Daley v. City of Little Rock, 36 Ark. App.
80, 818 S.W.2d 259 (1991); Womack v. Womack, 73 Ark. 281, 83 S.W.2d 938 (1904).
     Finally, the chancellor's finding that the attorney's fees
were so intertwined with custody and support issues as to be
directly related to support is challenged.  Once again, the
argument has no merit.  A chancellor is not limited to support
issues in awarding attorney's fees in a domestic relations
proceeding.  Moreover, the chancellor's use of the phrase, "so
intertwined" does not necessarily mean the fees represented a
majority of time devoted exclusively to support.  Rather, it can as
easily mean merely that the fees were "so intertwined" as to
directly relate to support.
                            SANCTIONS
     The fourth point of appeal asserts that the chancellor erred
in awarding sanctions under ARCP Rule 11 against Marilyn Schwarz,
Bill Schwarz, and Mr. Patterson, jointly and severally.  There was
no error.
     ARCP Rule 11 provides in pertinent part:
     The signature of an attorney or party constitutes a
     certificate by him that he has read the pleading, motion,
     or other paper; that to the best of his knowledge,
     information, and belief formed after reasonable inquiry
     it is well grounded in fact and is warranted by existing
     law or a good faith argument for the extension,
     modification, or reversal of existing law, and that it is
     not interposed for any improper purpose, such as to
     harass or to cause unnecessary delay or needless increase
     in the cost of litigation.   . . .   If a pleading,
     motion, or other paper is signed in violation of this
     rule, the court upon motion or upon its own initiative,
     shall impose upon the person who signed it, a represented
     party, or both, an appropriate sanction, which may
     include an order to pay to the other party or parties the
     amount of the reasonable expenses incurred because of the
     filing of the pleading, motion, or other paper, including
     a reasonable attorney's fee.
     
     When a violation of Rule 11 occurs, the rule makes sanctions
mandatory.  Crockett v. Wilson, 321 Ark. 150, 901 S.W.2d 826
(1995).  Whether a violation of Rule 11 occurred is a matter for
the court to determine, and this determination involves matters of
judgment and degree.  Id.  In reviewing a trial court's
determination, we do so under an abuse of discretion standard.  Id.
     In addressing this point we note again the protracted nature
of this case.  Brandi was five years old at the time of her
parents' divorce and she is now seventeen.  The intervening years
have been filled with various allegations, pleadings, and hearings. 
The pleading that resulted in sanctions may well be regarded as the
straw that broke the camel's back.  The backs of many camels would
have broken much sooner.  The brief submitted in this case
acknowledges that the provisions of ARCP Rule 11 are designed to
stop the needless delay and expense of pleadings interposed without
a good faith belief in their validity.  The brief also acknowledges
that the pleading in question raised "what may be considered
technical defenses," including standing, laches, jurisdiction, and
inequitable enforcement.  There was no abuse of discretion in the
chancellor's award of sanctions in this case.
                             RECUSAL
     Appellant's final point of appeal is that the chancellor
should have recused.  The argument has no merit. 
     The chancellor disclosed early in the proceedings that he knew
appellee's brother, an attorney, and that the brother's office had
been located close to that of the chancellor's. Disqualification is
discretionary with the judge, and the court's decision in that
regard will not be reversed absent an abuse of discretion.  Korolko
v. Korolko, 33 Ark. App. 194, 803 S.W.2d 948 (1991).  The party
seeking disqualification bears a substantial burden to prove
impartiality.  Id.  There was no abuse of discretion in the
chancellor's refusal to recuse on this basis.
     Appellant acknowledges that no prejudice could be shown with
respect to any particular ruling, but argues that the "cumulative
effect" demonstrated bias.  Only external matters are considered
for purposes of recusal.  Otherwise, antagonizing judges would
become a tool of trial strategy.  The development of opinions,
biases, or prejudices during a trial does not make the trial judge
so biased as to require his or her disqualification from further
proceedings.  Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987). 
See also Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993).
                       ABSTRACTING ABUSES
     We cannot ignore the abstracting abuses of appellant's
counsel.  Excessive abstracting is as violative of our rules as
omissions of material pleadings, exhibits, and testimony.  Saint
Paul Fire & Marine Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351
(1995).  Appellant's abstract consisted of three volumes, totaling
575 pages.  Much of this information could have been abridged or
deleted for purposes of this appeal.  This court's efforts to
resolve this matter on appeal would have been aided considerably by
the scrupulous adherence to our abstracting rule.  See Sup. Ct. R.
4-2(a)(6).
                             MOTION
     Mr. David H. Williams filed a motion to dismiss this appeal. 
We considered and denied the motion.
     Affirmed.
     Robbins and Griffen, JJ., agree.         

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