Steven C. Schueller v. Allison G. Schueller

ca00-764

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

STEVEN C. SCHUELLER

APPELLANT

V.

ALLISON G. SCHUELLER

APPELLEE

CA 00-764

March 7, 2001

APPEAL FROM THE ASHLEY

COUNTY CHANCERY COURT

[E96-340-2]

HONORABLE HAMILTON H.

SINGLETON, CHANCELLOR

AFFIRMED

This is a divorce case. Appellant, Steven C. Schueller, and appellee, Allison G. Schueller, were married on March 27, 1978, and four children were born of the marriage: Zachary (1979), Stella (1980), Mark (1983), and Nathaniel (1987). Appellee first filed for divorce on April 5, 1995. The complaint was dismissed as the parties attempted a reconciliation; however, appellee never returned to the marital home. When the reconciliation efforts failed, appellee refiled for divorce on August 28, 1996, in the Ashley County Chancery Court, seeking custody of the children. Appellant counterclaimed for custody of the children, for divorce from bed and board, and moved for a psychiatric evaluation of the entire family, claiming that appellee suffered from depression. Following a hearing, the divorce decree was entered on October 27, 1999. The chancellor granted

appellee an absolute divorce from appellant, on the amended ground of separation from the appellant without cohabitation for a period of eighteen months or more; determined the division of marital property; awarded custody of the two minor children; and determined the amount of child support to be paid by appellant. We affirm.

Appellant acted pro se at the hearing and brings this appeal pro se. He raises the following twelve points of appeal:

1. Did the chancery court ignore the preponderance of the evidence and did the chancery court fail to consider relative fault in awarding appellee divorce as opposed to awarding appellant his counterclaim for divorce from bed and board?

2. Was the chancery court clearly erroneous in refusing to award appellant custody of his two minor sons in favor of splitting custody between appellant and appellee?

3. Was the chancery court clearly erroneous in making an unequal division of assets in favor of appellee by removal of appellee from a joint bankruptcy, assigning all debt to appellant and failing to consider nonmarital assets?

4. Did the chancery court abuse its discretion in awarding attorney's fees to appellee?

5. Did the chancery court abuse its discretion in awarding child support to appellee and in the calculation of child support payments by miscalculating appellant's monthly net income and by ignoring the needs of the children, the respective ages of the parents, as well as, their health, future prospects and indebtedness?

6. Did the chancery court violate appellant's constitutional rights under the equal protection clauses of the U.S. and State of Arkansas constitutions by awarding child support to appellee, whereas, awarding custody of one child each to the parties?

7. Did the chancery court exceed its authority in removing appellee from bankruptcy filed jointly voluntarily many years previously?

8. Did the chancery court exceed its authority in restricting the rights of a secured lender?

9. Did the chancery court fail to provide equitable procedure by allowing appellee to continue prosecution of her suit despite her failure to show cause, her noncompliance with court ordered psychiatric evaluation, her removal of the children from Arkansas?

10. Did the chancery court fail to provide equitable procedure by ratification of the child custody status quo when the status quo was established by a series of unethical judicial ex parte actions?

11. Was the court clearly erroneous in excluding appellant's testimony as an expert witness regarding depression?

12. Can justices and attorneys practice in the chancery court absent a basic understanding of depression without being considered negligent and engaged in malpractice?

During the period between April 5, 1995, the filing of the first complaint for divorce, and October 27, 1999, the date the divorce decree was entered, Stella and Nathaniel resided with appellee and Zachary resided with appellant. Mark resided with appellee for approximately one year after the first complaint was filed, but then returned to live with appellant. Appellant remained in the marital home during this period; appellee did not. The parties have lived separate and apart since April 1995. Appellee moved to East Dubuque, Illinois, in 1996 and continues to live there. Appellant is a board-certified surgeon. He no longer performs surgery; instead, he works as an emergency room physician. Appellee is a registered nurse.

With respect to the minor children, the chancellor awarded appellant the permanent care and custody of Mark and awarded appellee the permanent care and custody of Nathaniel, subject to reasonable visitation. By the time of the divorce, Zachary and Stella had attained majority. Appellant was ordered to pay child support of $570 per month.

With respect to the division of the three parcels of real property owned by the parties, the chancellor awarded "the farm" to appellant as his sole and separate property, for which appellant was to be "solely responsible for all marital debt" and hold appellee harmless from any exposure thereon; and changed the estates in the two residences from tenants by the entirety to that of tenants in common and directed that the "parties may proceed to partition said parcels when and if they deem such action appropriate."

For the most part the parties were awarded the items of personal property that were currently in their possession, along with any attendant debt thereon, and appellee was awarded several non-marital items of personal property as agreed upon by the parties. Appellee was also awarded $2,000 for attorney's fees.

We note at the outset of this opinion that Rule 4-2(a)(7) of the Rules of the Supreme Court and Court of Appeals provides that "[a]rguments shall be presented under subheadings numbered to correspond to the outline of points to be relied upon." Appellant did not comply with this rule, and his failure to do so has made the review of his arguments exceedingly difficult. The first four pages of his "argument" are better described as a recapping of his points of appeal, with additional commentary. No citations of authority are given and the "arguments" are not well-developed. The next sixteen pages of the "argument" are organized under the major heading of "Facts," with subheadings of: "The Children and Custody," "Zachary," "Mark," "Stella," "Appellee's Psychiatric State," "Appellee's Credibility," "Appellee," "Court Actions," "Attorney's Fees," "Child Support," and "Federal Bankruptcy." The last two pages of his "argument" section is labeled, "Law - Standard of Review," andcontains very few citations to authority that apply to the points raised on appeal. Moreover, there is not a satisfactory development of the arguments and facts concerning those citations. The reply brief contains no citations to authority. We have long held that we do not consider arguments without convincing argument or citation to authority in support where it is not apparent without further research that these arguments are well-taken. Miner v. State, 342 Ark. 283, 27 S.W.3d 280 (2000). Having prefaced this opinion with this explanation of appellant's arguments on appeal, we will address the merits of his arguments where it is possible to do so.

1. Did the chancery court ignore the preponderance of the evidence and did the chancery court fail to consider relative fault in awarding appellee divorce as opposed to awarding appellant his counterclaim for divorce from bed and board?

The gist of appellant's argument here seems to be that "the court should have considered comparative fault and granted appellant a divorce from bed and board on the grounds of appellee's admitted adultery." In Posey v. Posey, 268 Ark. 894, 597 S.W.2d 834 (Ark. App. 1980), cited by appellant, the husband wanted an absolute divorce and the wife wanted a divorce from bed and board. This court explained that both parties had sufficient grounds for divorce, but because the husband was the first and greater offender, the wife's cross-complaint for the limited divorce should have been granted instead of the husband's complaint for absolute divorce. However, Arkansas Code Annotated section 9-12-301(6) (Repl. 1998), which was in effect at the time the instant divorce decree was entered, provides:

The chancery court shall have power to dissolve and set aside a marriage contract, not only from bed and board, but from the bonds of matrimony, for the following causes:

. . . .

(6) Where husband and wife have lived separate and apart from each other for eighteen (18) continuous months, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether the separation was the voluntary act of one party or by the mutual consent of both parties or due to the fault of either party or both parties[.]

(Emphasis added.) Appellant's argument cannot prevail under the terms of this statute.

2. Was the chancery court clearly erroneous in refusing to award appellant custody of his two minor sons in favor of splitting custody between appellant and appellee?

Here, appellant contends that this court should reevaluate the evidence and "order that custody of Nate be awarded to [appellant], so that he can live in the same household as his brother, Mark, free of the dangerous contacts to which appellee has exposed him with a sexual deviant and a drug dealer, who has threatened a woman at gunpoint." We review chancery cases de novo, but do not reverse the chancellor's findings unless they are clearly against the preponderance of the evidence. Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000). Since the preponderance of the evidence turns largely upon the credibility of the witnesses, we defer to the superior position of the chancellor. Campbell v. Campbell, 63 Ark. App. 136, 975 S.W.2d 869 (1998). This deference to the chancellor is even greater in cases involving child custody. Id. In those cases, a heavier burden is placed on the chancellor to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony, and the child's best interest. Id. We have often stated that we know of no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as great a weight as those involving minor children. Id. The best interests of the childremains the ultimate objective in resolving child custody and related matters. Friedrich v. Friedrich, supra.

The chancellor heard the testimony related to the reasons appellant relies upon in contending that the chancellor erred in awarding custody of Nate to appellee. The chancellor also heard testimony concerning the condition of appellant's house, its lack of air conditioning and heat; the work schedule maintained by appellant; and the fact that the children living with appellee had maintained a relationship with appellant, while the child living with appellant had cut all ties to appellee. The chancellor found that it was in Nate's best interest to remain with appellee. We find no clear error in that determination.

3. Was the chancery court clearly erroneous in making an unequal division of assets in favor of appellee by removal of appellee from a joint bankruptcy, assigning all debt to appellant and failing to consider nonmarital assets?

Appellant contends in his opening brief:

[T]he Court made an unequal division of marital assets in favor of appellee by ignoring appellee's renunciation of jointly titled property, ignoring mortgage on the property and assigning all debt to appellant. . . . Value of the marital estate was not calculated and no calculation of assets remaining, after satisfaction of the bankruptcy was attempted. No attention was given to assets brought into the marriage having been precluded by Courts emphatic statement that property would not be divided, due to the primacy of the bankruptcy.

In his reply brief, he contends:

But to award the farm to appellant was to give him what he already had, as the farm was never at any time in the name of appellee and the entire indebtedness owed on the farm was listed as husband's debt. . . . Further, to award the farm to appellant was to award him nothing, in that the entire bankruptcy plan was the liquidation of the farm. . . . Appellee states appellant was ordered to pay for any debt related to the farm, but this is inaccurate. Court ordered all debt, farm related or not, to be assumedby appellant. A substantial portion of this debt is joint debt including in excess of $100,000 taxes jointly owed.

(Emphasis in original.) With respect to the chancellor's division of the three pieces of real property, we find no error. He gave the entire farm to appellant, along with the associated debt, and made the parties co-tenants with respect to the other two pieces of property, stating that "the parties may proceed to partition said parcels when and if they deem such action appropriate." It was not disputed that the marital residence has no debt and that the monthly mortgage payment on the townhouse is covered by the amount of rent appellant collects from his parents, who are living there. With respect to both, when the properties are partitioned, presumably there will be an accounting at that point between the co-tenants.

Finally, it was appellant's responsibility to bring up a record with respect to any other types of marital assets and to make an understandable argument as to why the chancellor's method of telling the parties to keep whatever was in their current possession was a clearly erroneous division of personal property. He has not done so.

4. Did the chancery court abuse its discretion in awarding attorney's fees to appellee?

Chancery courts have the inherent power to award attorney fees in a domestic relations proceeding. Miller v. Miller, 70 Ark. App. 64, 14 S.W.3d 903 (2000). The chancellor has considerable discretion in the allowance of attorney fees in a divorce case, and, absent an abuse of that discretion, the fixing of the amount of fees will not be disturbed on appeal. Id. Here, the chancellor considered the protracted nature of the divorce action and the differencein earning capacity between the parties. Moreover, the $2,000 award of fees was less than the amount sought. We find no abuse of the chancellor's discretion.

5. Did the chancery court abuse its discretion in awarding child support to appellee and in the calculation of child support payments by miscalculating appellant's monthly net income and by ignoring the needs of the children, the respective ages of the parents, as well as, their health, future prospects and indebtedness?

And

6. Did the chancery court violate appellant's constitutional rights under the equal protection clauses of the U.S. and State of Arkansas constitutions by awarding child support to appellee, whereas, awarding custody of one child each to the parties?

These two points of appeal can best be discussed together. The chancellor's calculation of child support is set out in detail in his letter opinion, which is referenced in the divorce decree. He took into account appellant's malpractice insurance, taxes, and college expenses for the other two children, and he gave appellant a fifteen-percent credit for the fact that Mark was in his custody. He concluded that appellant's monthly income for child support purposes was $3,614 and that the child support chart required that appellant pay $570 month.

Appellant does not seem to be challenging the amount of disposable monthly income calculated by the chancellor. Rather, he seems to argue primarily that Nate never lacked for anything during the four-and-one-half-year separation; that appellee's financial condition was better than his; that he provided support to Nate directly; that appellee is negligent in handling financial affairs; that the money will be spent on her rather than Nate; and that Nate spends three months with appellant every year. He never mentions the child support chart. We findno error in the chancellor's award of child support. According to the applicable chart, $570 a month is the scheduled amount for a monthly income of $3,600.

7. Did the chancery court exceed its authority in removing appellee from bankruptcy filed jointly voluntarily many years previously?

And

8. Did the chancery court exceed its authority in restricting the rights of a secured lender?

With respect to these points of appeal, the bankruptcy judge entered the final decree in Bankruptcy Proceeding No. 93-11046 on May 23, 1996, prior to the filing of the divorce. The final bankruptcy decree provides: "Ordered that the Trustee is discharged from and relieved of his trust and the case is hereby closed." Moreover, Schedule D of the bankruptcy proceeding lists the debts associated with the farm lands as "Husband's Debt." Without a more convincing argument and citation to authority, we find no merit to these points of appeal.

9. Did the chancery court fail to provide equitable procedure by allowing appellee to continue prosecution of her suit despite her failure to show cause, her noncompliance with court ordered psychiatric evaluation, her removal of the children from Arkansas?

With no citation to authority, the gist of appellant's argument regarding this point of appeal appears to be that "[k]nowing [Chancellor Mazzanti] was going to recuse himself, likely knowing Appellant was without representation, the Chancellor scheduled trial without enforcing his own order for psychiatric evaluation." Giving appellant every possible benefit of the doubt that this issue was preserved for our review, and even if, for the sake of argument, we were to presume that the chancellor somehow erred in not requiring appelleeto undergo a psychiatric evaluation prior to trial, we still find no basis for reversal in this point of appeal.

Error is no longer presumed to be prejudicial; unless the appellant demonstrates prejudice, we do not reverse. Lucas v. Grant, 61 Ark. App. 29, 962 S.W.2d 388 (1998). Appellant has not demonstrated how he was prejudiced by appellee's "noncompliance" on the evaluation, especially in light of the fact that appellee acknowledged her history with depression, and her testimony and that of others showed that she was dealing with it effectively.

10. Did the chancery court fail to provide equitable procedure by ratification of the child custody status quo when the status quo was established by a series of unethical judicial ex parte actions?

The gist of appellant's argument related to this point of appeal appears to be that appellee gained a tactical advantage by establishing and maintaining custody of Nate through two "unethical judicial ex parte actions" because the chancellor referred to this status quo in awarding permanent custody. The only citations to authority that he provides are from the Arkansas Code of Judicial Conduct, Canons 3B(7)(a) (ex parte communications) and 3B(1) ("A judge shall hear and decide matters assigned to the judge . . . ."). We do not consider arguments without convincing argument or citation to authority in support, where it is not apparent without further research that these arguments are well-taken. Miner v. State, 342 Ark. 283, 27 S.W.3d 280 (2000). Neither appellant's argument nor his citation to authority convinces us that this point of appeal establishes a basis for reversal.

11. Was the court clearly erroneous in excluding appellant's testimony as an expert witness regarding depression?

And

12. Can justices and attorneys practice in the chancery court absent a basic understanding of depression without being considered negligent and engaged in malpractice?

The qualification of an expert witness is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). Here, appellant attempted to elicit testimony from appellee concerning her depression. When he asked her about any family history of depression, appellee's attorney objected that such evidence was not relevant. In response, appellant contended that depression "is a biological disease, . . . not related to marriage. . . . It is caused by a biological disorder that is genetic." The chancellor asked appellant if he planned to have an expert testify on such matters. Appellant responded that he considered himself to be an expert as an emergency room physician who sees a lot of depression in that capacity. He acknowledged, however, that he had not seen appellee in any professional capacity for over three years, but that his concern was not for diagnosing her specifically, but for her fitness for custody of the child. The chancellor sustained appellee's objection, ruling that "for whatever point you are trying to make, you have made the point that she is depressed; that she suffers from depression"; and that she currently takes medication for depression. Not to mention the fact that appellant would have been testifying while also serving as his own attorney, we find no abuse of the chancellor's discretion in not allowing appellant to testify as an expert in this regard.

Affirmed.

Jennings and Neal, JJ., agree.