Edmundo Rogers v. Cynthia Rogers

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

CA02-699

August 27, 2003

EDMUNDO ROGERS AN APPEAL FROM BENTON COUNTY

APPELLANT CIRCUIT COURT

[NO. E-2000-1602-4]

v.

HONORABLE XOLLIE DUNCAN

CYNTHIA ROGERS CIRCUIT JUDGE

APPELLEE

AFFIRMED

Karen R. Baker, Judge

This marks the fourth time that appellant Edmundo Rogers, an attorney from northwest Arkansas, has appealed from an order entered in his divorce case. In his first appeal, he successfully contended that the trial court lacked jurisdiction to enter the divorce decree due to lack of corroboration of residency. Rogers v. Rogers, No. 01-790 (June 19, 2002) (not designated for publication) (Rogers I). In his second and third appeals, which were filed while the first appeal was pending, he primarily argued that, given the trial court's lack of jurisdiction to grant a divorce, it had no power to hold him in contempt for failure to pay child support and alimony. We found no basis for his argument and affirmed the contempt citations in a consolidated opinion. Rogers v. Rogers,80 Ark. App. 430, 97 S.W.3d 429 (2003) (Rogers II). The case at bar likewise concerns orders entered while the first appeal was pending. Edmundo claims that 1) the trial judge erred in holding him in contempt for failure to pay alimony to appellee Cynthia Rogers; 2) the trial judge erred in permitting Cynthia to remove property and the parties' children from the state; and 3) the trial judge was biased against him and should have recused. We find no error and affirm on all points.

Edmundo argues first that the trial court erroneously held him in contempt for failure to pay $1,400 in alimony. He contends, as he did in a previous appeal, that, because the divorce decree was entered without sufficient corroboration of residency, the alimony provisions of the decree were unenforceable. We rejected that argument in Rogers II, holding that the circuit court's jurisdiction to enter and enforce alimony and child support awards is independent from its jurisdiction to grant a divorce. The same reasoning applies here, and we therefore affirm on this point.

Edmundo also argues that, if he had paid the $1,400 to avoid being incarcerated, he would have waived his right to appeal. He relies on a line of cases holding that, where a party voluntarily pays a judgment, the case is moot. See DeHaven v. T & D Dev., Inc., 50 Ark. App. 193, 901 S.W.2d 30 (1995); Lytle v. Citizens Bank of Batesville, 4 Ark. App. 294, 630 S.W.2d 546 (1982). However, no such predicament was created in this case. In Rogers II, Edmundo prosecuted an appeal from the same alimony arrearage that is the subject of this case. Thus, his fear of waiving his appeal has been rendered moot. See generally Pentz v. Romine, 62 Ark. App. 12, 966 S.W.2d 934 (1998) (holding that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy). Along this same line, Edmundo cannot show how he was prejudiced by the trial court's ruling, since he has in fact been able to pursue an appeal. We will not reverse in the absence of a showing of prejudice. See Lucas v. Grant, 61 Ark. App. 29, 962 S.W.2d 388 (1998).

In any event, we doubt that Edmundo's payment of the $1,400 would have waived his right to appeal. An involuntary payment does not constitute a waiver. See DeHaven v. T & D Dev., Inc., supra; Lytle v. Citizen's Bank of Batesville, supra. It has been recognized that compliance with a court's contempt order to avoid more severe penalties is made under "legal coercion" and is thus involuntary. See Whittle v. Seehusen, 113 Idaho 852, 748 P.2d 1382 (1987). Further, Edmundo attempted to stay the judgment in this case by posting a supersedeas bond (although we held in Rogers II that the supersedeas was ineffective) and by petitioning the supreme court for a stay. See generally Butt v. Evans Law Firm, 351 Ark. 566, 98 S.W.3d 1 (2003); Smith v. Smith, 51 Ark. App. 20, 907 S.W.2d 755 (1995) (recognizing that one factor in determining whether payment is voluntary is whether the judgment debtor attempted to procure a supersedeas to stay the judgment).

For all the foregoing reasons, we affirm the trial court's contempt citations. We turn now to Edmundo's argument that the trial court should have restrained Cynthia from removing certain property from the state.

Some factual and procedural history is necessary to explain this argument. Prior to their marriage, the parties entered into a premarital agreement. The original divorce decree held the agreement void and divided the parties' marital property pursuant to Arkansas law. While the appeal from that ruling was pending, Cynthia moved to Tulsa, Oklahoma. Edmundo filed a motion, contending that he believed Cynthia would either remove or dispose of property located at the parties' former residence, where Cynthia had been staying. He asked for an accounting and to enjoin the removal of the property.

At the hearing on the motion, Edmundo testified that he had not received various items that had been awarded to him in the decree and that he wanted an accounting for those items and for all items in the divorce decree. The trial judge ruled from the bench as follows:

Now, on this property business, my take on the law in Arkansas is that pending the appeal and a supersedeas bond is in place, property issues are stayed, and I am not going to require anything from either party at this time, although I will admonish both of you that when this is all over and said and done, if I am reversed obviously everything starts all over again or at least so much of it as the Court determines needs to start all over again we will start over again. If the decision is upheld, you both understand that you are going to be required at that time to have the property that is supposed to have been there under the decree or be able to account for it at that time. I don't think I can do anything in the meantime; that is my reading of it. Everything is stayed, but suffice [it] to say that you had both better be prepared to produce whatever you were supposed to have had in your possession as of the time the decree was entered.

The court thus denied Edmundo's motion for an accounting or to enjoin removal of property.

As the trial judge thought possible, a reversal occurred when we held the premarital property agreement enforceable in Rogers I. We have no information as to what has occurred with regard to property division since our remand of that case in June 2002; it is likely that the matter has been referred to arbitrators because that is what the agreement provided. In light of the likelihood that much of what is being argued here has been re-addressed and possibly resolved by the trial court or arbitrators, and because the trial judge expressly warned the parties that they would have to account for property in their possession in the event of a remand, we decline to reverse on this point.

The next issue concerns Edmundo's objection to Cynthia's relocation to Tulsa with the couple's three children. Following the divorce proceeding, the trial judge awarded custody to Cynthia and standard visitation to Edmundo, but the decree said nothing about the best interests of the children. We recognized in Rogers I that there was very little evidence at trial on the best interests of the children and stated that:

Because well over a year has passed since the entry of the judge's order, we do not review the custody award at this time. Circumstances may have changed, and we fully expect that the issue may be revisited upon remand.... Should this issue arise upon remand, we trust that any order awarding custody will reflect that the best interests of the children were considered.

Rogers I, at 9.1

In August of 2001, while the appeal in Rogers I was pending, Cynthia moved with the children to Tulsa, which is about 100 miles from Edmundo's residence in Rogers, Arkansas. Edmundo moved to block the relocation because he was concerned that the move would affect his time with the children. The trial court denied Edmundo's motion, and he now contends that the trial court erred in allowing the relocation.

In cases involving child custody and related matters we review the case de novo, but we do not reverse the findings of the trial court unless it is shown that they are clearly erroneous or clearly against the preponderance of the evidence. Deluca v. Stapleton, 79 Ark. App. 138, 84 S.W.3d 892 (2002).

At the time the trial judge made her decision, questions of parental relocation were governed by the line of cases that flowed from our 1994 decision in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994). In Staab, we set forth five factors that should be considered in determining whether to allow a custodial parent to move from the state of the noncustodial parent: (1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the noncustodial parent's motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the noncustodialparent. Id. Further, we held that, before a court considered the Staab factors, the custodial parent must meet the threshold burden of proving some real advantage to the children and himself or herself in the move. Deluca v. Stapleton, supra. However, our supreme court, in Hollandsworth v. Knyzewski, 352 Ark. ___, __ S.W.3d ___ (June 5, 2003), recently declined to adopt the Staab criteria. Instead, the court created a presumption in favor of relocation for parents with primary custody, meaning that the parent no longer has the obligation to prove a real advantage to herself or himself and to the children in relocating; rather, the burden is on the noncustodial parent to rebut the relocation presumption. The court also stated:

The polestar in making a relocation determination is the best interest of the child and the court should take into consideration the following matters: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent will relocate; (3) visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; and, (5) preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.

Id. at ___, ___ S.W.3d at ___.

At the October 31 hearing, Cynthia testified that she moved to Tulsa to be with her family and to look for a better paying job. She found a job that paid $16.50 per hour, more than the $10 per hour (she had previously testified that she earned $11 per hour) that she was making in Arkansas. Additionally, she was able to rely on her family to care for the children during the day rather than paying for day care. She further said that shehad maintained Edmundo's visitation schedule, although this was disputed by Edmundo. Following the hearing, the trial judge ruled from the bench that Cynthia's motive in moving was not to interfere with Edmundo's visitation; that Edmundo's motive in opposing the move was not improper; that Tulsa was not far away and that Edmundo could continue to exercise visitation; that Cynthia would be likely to follow the court's visitation orders; and that the move would benefit the family unit by offering Cynthia family support in raising the children. The court ordered Edmundo to pick up the children in Tulsa on his weekends and for Cynthia to retrieve them at the end of the weekend.

Upon our de novo review, we apply the presumption created in Hollandsworth v. Knyzewski and hold that the trial court did not err in allowing relocation. We place particular importance on the fact that the short distance between Rogers and Tulsa means that the parties can, with a bit of extra planning, maintain virtually the same visitation schedule as mandated by the decree. The trial court fashioned a workable method of delivering and picking up the children that fairly allocates the burden to each parent. We also note the economic and familial advantages presented to Cynthia and the children as a result of the move. We therefore uphold the trial court's approval of the relocation.2

For his last point, Edmundo argues that the trial judge was biased and should have recused. As evidence of the alleged bias, Edmundo contends that the judge allowed Cynthia to lie during her testimony and permitted her to relocate even though she did not seek the court's permission in advance.

The decision of whether to recuse is within the trial court's discretion, and it will not be reversed absent an abuse of discretion. Irvin v. State, 345 Ark. 541, 49 S.W.3d 635 (2001). There exists a presumption that a judge is impartial. See id. The burden is on the party seeking disqualification to show bias or prejudice. Id. To decide whether there has been an abuse of discretion, we review the record to see if prejudice or bias was exhibited. Id.

Absent some objective demonstration by the appellant of the trial judge's prejudice, it is the communication of prejudice by the trial judge which will cause us to reverse his or her refusal to recuse. Rogers II, supra (quoting Irvin v. State, supra). The mere fact of adverse rulings is not enough to demonstrate bias. Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge. Id. Our review of the record indicates that, contrary to Edmundo's assertion, there has been no demonstration of bias in this case.

Edmundo alleges that Cynthia lied by: 1) stating at a July 5, 2001, hearing that she had an above-ground swimming pool in her backyard because it was a gift from a relative; 2) testifying at the October 31 hearing that her Arkansas house payment was $550 per month when she had testified the previous July that her house payment was $450; 3) testifying that her day care bill had been paid in full, even though she stated in an ex parte letter to the court that she did not have the money to pay day care; and 4) giving inconsistent testimony about when she moved to Tulsa. He argues that these "lies" should have caused the trial judge to doubt Cynthia's testimony and the fact that her testimony was not doubted is evidence of bias.

None of these alleged inconsistencies required the judge to find Cynthia's testimony incredible. Regarding the swimming pool, we have already deferred to the trial judge's assessment of Cynthia's credibility on that matter. See Rogers II, supra, at 440-41. As for her testimony about the house payment, Edmundo argues that Cynthia falsely increased the amount of the payment at the October hearing to make it appear that her Tulsa house payment was not so large in comparison. In fact, Cynthia testified to the $550 amount at the earlier July hearing, so this argument is not well taken. On the matter pertaining to the day care bill, Cynthia's letter to the court stated that day care was costing her $175-$200 per week and that she was "not making it." The fact that her day care bill had been paid when she left town several weeks later is not a blatant inconsistency.

There was some confusion about when Cynthia moved to Tulsa, but Cynthia ultimately testified that she had moved to Tulsa in the latter part of August, which was consistent with her testimony that she had moved sixty days before the October 31 hearing.

Regarding Cynthia's decision to move without seeking the court's permission, her letter to the court shows that she was in dire financial straits, with no electricity or water service to her home, and she asked her attorney to seek permission as soon as possible. Thus, the trial judge was not obligated to find that she had moved in bad faith, especially in light of the fact that she continued to honor Edmundo's visitation.

For the reasons stated, we affirm the trial court's decisions in all respects.

Affirmed.

Vaught and Roaf, JJ., agree.

1 Edmundo contends that we reversed the custody award in Rogers I; however, that is not the case.

2 Had the Staab factors been applicable, we still would have affirmed the relocation under the facts of this case.