Troy Kevin Ratliff v. Cynthia M. Ratliff

ca02-844

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOSEPHINE LINKER HART, JUDGE

DIVISION I

CA02-844

April 9, 2003

TROY KEVIN RATLIFF AN APPEAL FROM PULASKI COUNTY

APPELLANT/ CIRCUIT COURT, [DV-99-6142]

CROSS-APPELLEE

v. HONORABLE MACKIE M. PIERCE,

CIRCUIT JUDGE

CYNTHIA M. RATLIFF AFFIRMED IN PART; REVERSED and

APPELLEE/ REMANDED IN PART ON DIRECT APPEAL;

CROSS-APPELLANT AFFIRMED ON CROSS-APPEAL

The parties were married in 1982 and separated in 1999. Two daughters were born of the marriage: Tara in 1985, and Tianna in 1994. In this appeal from the divorce decree entered February 1, 2002, appellant Kevin Ratliff argues as follows: (1) that two family businesses were not marital property; (2) that the child support award was excessive; (3) that he should not have been held in contempt of court; (4) that alimony should not have been awarded to appellee Cynthia Ratliff; and (5) that he should have been awarded custody of the children. In her cross-appeal, appellee argues that the trial judge erred in failing to award her one-half of U.S. Rooter Leasing Corporation, one of the family businesses; in setting her alimony at only $100 per month; and in denying her request for an attorney's fee. On the direct appeal, we affirm as to all issues except the contempt issue. We affirm on the cross-appeal.

Standard of Review

Decisions rendered in traditional equity cases are reviewed de novo on appeal, and are not reversed unless this court finds that the trial judge's decision is clearly erroneous. Abbott v. Abbott, 79 Ark. App. 413, 90 S.W.3d 10 (2002). When the decision turns on the credibility of interested witnesses, we defer to the superior position of the trial judge to assess that credibility. Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002).

Ownership of the Businesses

In 1988, appellant purchased his father's plumbing business, U.S. Rooter/All Type Plumbing Co., Inc., and appellant later started another business, U.S. Rooter Leasing Corporation. According to appellant, in 1991, when he had serious health concerns, he and his parents canceled the plumbing company sale and he endorsed his stock certificate to his father. However, he continued to operate both companies and filed the K-1 income tax forms on the Subchapter S corporation with his individual tax returns. Also, the trademark registration filed with the Arkansas Secretary of State showed appellant as the owner of the U.S. Rooter All Type Plumbing business.

Appellant presented evidence that appellee had withdrawn large sums of money from the businesses' accounts. Appellant's mother, Maxine Ratliff, testified that appellee had improperly taken over $140,000; had made over $23,000 in unauthorized charges on a business credit card; and had paid an employee, Terry Farley, over $17,000 more than she was due for her salary. Appellee, who had worked with appellant in the businesses, invoked her Fifth Amendment privilege against self-incrimination whenever she was asked at trialwhether she had taken money from the businesses without authorization.1 When questioned about these payments, Terry also invoked her Fifth Amendment rights.

In his letter opinion, the trial judge stated that, although it was clear that both parties had not been completely truthful, appellant had "absolutely no credibility...." The judge found that appellant, his mother, and his cousin, Dr. Michael Courtney (who witnessed the purported rescission of the plumbing company sale), had "absolutely no credibility with this Court regarding the issues of [appellant's] income, finances, corporate ownership, and any of the circumstances surrounding the purported gifting back of the corporation to [appellant's father]."

With regard to the plumbing business, the judge found that, although appellant allegedly gave his interest in the plumbing company back to his father, the tax returns and other documentary evidence clearly reflected that he had exercised complete control and ownership authority over both businesses and had received all of the corporate income from them. The trial judge stated: "[T]he records further reflect that [appellant] not only misled the court about his ownership of the businesses but committed perjury in testifying about his income from U.S. Rooter and All-Type Plumbing Company." The trial judge found that appellee had a marital interest in the plumbing business and the leasing business. However, noting that the value of the businesses was not established, he applied the clean-hands doctrine and refused to award appellee any interest in the businesses because she had improperly taken funds from them. He did, however, award appellee one-half of the $15,440that appellant's mother had removed from the business checking account at the time of the parties' separation and stated that appellee would receive nothing else for her interest in both businesses.

For his first point on appeal, appellant argues that the trial judge erred in finding that he is the owner of the plumbing and leasing businesses and, therefore, should not have considered the businesses' income in setting his child-support obligation. The trial judge's findings as to the circumstances warranting a property division will not be reversed unless they are clearly erroneous. Dennis v. Dennis, 70 Ark. App. 13, 13 S.W.3d 909 (2000).

Appellant points out that he endorsed the stock certificate for the plumbing business to his father and that the bill of sale for the plumbing company was voided at the same time. Appellant contends that, under Arkansas's security laws and the Internal Revenue Code, the stock certificate, with its endorsement, is evidence that he has no interest in the business. He also stresses that appellee had handled the taxes and he did not know that the tax forms listed him as the owner.

The trial judge's finding that Kevin owns both businesses is not clearly erroneous. Even though the stock certificate is unquestionably evidence of ownership, it is not conclusive of the date of transfer or if the transaction was in form only. Maxine admitted at trial that Kevin was paid nothing for the purported transfer of the plumbing company's ownership to his father. Also, the Subchapter S tax returns expressly listed Kevin as the owner of the business and set forth the income that he received as owner. Mark Rogers, the parties' accountant, testified that he was not contacted about the businesses' ownership as reflected on the schedule K forms until about ninety days before trial. Also, when theplumbing company applied for a service mark registration with the Arkansas Secretary of State in 1994, Kevin signed the application as owner of the business. The judge found that Kevin's testimony that he had no idea that he was listed on the tax forms as the owner for all those years was not credible. Any conflicts in the testimony are for the trial judge to resolve, and the appellate court will defer to the trial judge's superior position to assess and determine the credibility of the witnesses. Dewitt v. Johnson, 349 Ark. 294, 77 S.W.3d 530 (2002). We affirm on this issue.

Child Support

The judge determined the amount of appellant's income as follows:

Throughout the course of this trial, [appellant] has steadfastly maintained that he earns $373.00 per week as net income as a licensed master plumber; this is untrue; [appellant] has perjured himself regarding his income; the testimony is quite clear from Ms. Maxine Ratliff as well as from Mark S. Rogers, the Certified Public Accountant for the business, that [appellant]'s income is substantially more than he would have this Court believe; at the temporary hearing, this Court was not convinced and has never been convinced, that [appellant] earns merely $373.00 per week as a licensed master plumber who also has a heating and air-conditioning certification; this Court is certain that a master plumber, so licensed since 1989, should and can, and in fact does in this case, earn substantially more than $373.00 per week; the testimony of Mr. Rogers clearly reflects that for the years 1996 though 1999 [appellant] earned from $70,000.00 to almost $93,000.00 per year; this does not take into consideration and does not include the following items paid on [appellant]'s behalf by the plumbing company: $400.00 per month truck payment; $100.00 per month in automobile insurance; health insurance; and the use of a company credit card on which [appellant]'s mother testified [appellant] charged $400.00 to $500.00 per month in expenses; [appellant]'s gasoline is paid by the corporation; [appellant] earns substantially more than what he has stated during the course of this litigation that he earns; this Court finds that [appellant]'s income is, at a minimum, $100,000.00 per year as of 1999, and he has continued to earn or has the capability to earn that sum in the future; the Court finds that [appellant] earns or has the capability to earn the sum of $6,000.00 per month in net income; for two (2) minor children, [appellant]'s child support is set pursuant to Administrative Order No. 10 at the rate of $1,260.00 per month....

The judge later granted appellant's motion to reduce child support. He stated that appellant's net income was not $6,000 per month as previously calculated but was $5,000 per month at the imputed yearly rate of $100,000 minus 40% for taxes. The child-support obligation was reduced to $1,037 per month, in keeping with the family support chart.

Appellant argues for his second point that the judge should have set his child-support obligation based on his take-home salary ($373 per week) plus a reasonable amount for the personal use of the vehicle provided to him by the businesses. Because we held that the trial judge was correct in holding that appellant owns the businesses, we conclude that the trial court properly considered the net income from the businesses in determining appellant's income for the purpose of setting child support.

Appellant argues that the judge erred in finding that, according to his mother's testimony, he had the use of a company credit card for $400 to $500 in monthly personal expenses. We agree that this finding is clearly erroneous because Maxine testified that appellant had charged $800 for personal items on the company credit card during the past year. However, this error, as shown below, was not prejudicial and does not require reversal. Appellant further argues that the trial judge erred by taking judicial notice of the income earned by plumbers. Although we agree that judicial notice of this type is impermissible, we do not find that the court erred in the award of child support. The court based the child support on the actual earnings of appellant as evidenced by the income tax returns.

Appellant also asserts that, even if the trial judge was correct in considering the businesses' income for purposes of child support, he calculated that income incorrectly. He argues that the judge erred in using "gross profit [sic] and not what would be taxable" andpoints to Mr. Rogers's testimony about the businesses' taxable income for the years 1995-99. According to appellant, the average annual business income was $63,558; he argues that, when added to his $26,000 salary, his average monthly take-home pay was $4,496, for which the support chart would set his monthly obligation at $960, rather than the $1,037 ordered by the judge. According to appellant, he is paying $77 too much in monthly child support. We disagree.

The amount of child support a trial judge awards lies within his sound discretion and will not be disturbed on appeal absent an abuse of that discretion. Office of Child Support Enforcement v. Pittman, 70 Ark. App. 487, 20 S.W.3d 426 (2000). It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Brown v. Brown, supra. The most recent revision of the child-support guidelines, In re: Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. (January 31, 2002), which became effective February 11, 2002, defines income in Section II as "any form of payment, periodic or otherwise, due to an individual, regardless of source," less proper deductions for federal and state income tax, social security, Medicare, and railroad retirement, medical insurance paid for dependent children, and presently paid support for other dependents by court order. This definition is intentionally broad to encompass the widest range of sources consistent with this state's policy to interpret "income" broadly for the benefit of the child. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). Because the child-support guidelines are remedial in nature, they must be broadly construed so as to effectuate the purpose sought to be accomplished by the drafters. Pannell v. Pannell, 64 Ark. App. 262, 981 S.W.2d 531 (1998).

In Section IIIc, the guidelines provide that for self-employed payors, the amount of support shall be calculated based on the last two years' federal and state income tax returns2:

For self-employed payors, support shall be calculated based on the last two years' federal and state income tax returns and the quarterly estimates for the current year. A self-employed payor's income should include contributions made to retirement plans, alimony paid, and self-employed health insurance paid; this figure appears on line 22 of the current federal income tax form. Depreciation should be allowed as a deduction only to the extent that it reflects actual decrease in value of an asset. Also, the court shall consider the amount the payor is capable of earning or a net worth approach based on property, life-style, etc.

The testimony and exhibits revealed that appellant's income in 1998 and 1999 (the most recent tax returns available) was as follows:

1998

Business income $ 71,728

Salary ($500 weekly) 26,000

Truck payment ($400 monthly) 4,800

Truck insurance ($100 monthly) 1,200

Health insurance ($100 monthly) 1,200

Loans from business ($13,500 in two years) 6,750

$ 111,678

1999

Business income $ 48,557

Salary ($500 weekly) 26,000

Truck payment ($400 monthly) 4,800

Truck insurance ($100 monthly) 1,200

Health insurance ($100 monthly) 1,200

Loans from business ($13,500 in two years) 6,750

$88,507

Average annual income: $100,093

Appellant also charged $800 on a business credit card in the year before trial, and the businesses consistently paid for the gasoline used in his truck.

Given these facts, we cannot say that the trial judge's finding that appellant earns $100,000 per year is clearly erroneous and affirm on this issue.3

Contempt

The judge ordered appellant to donate fifty hours of his time as a plumber and/or heating and air conditioning technician to Habitat for Humanity, as punishment for his "misleading and false testimony regarding his income...." Appellant moved to modify the judgment or, in the alternative, for a new trial, on several grounds, including the judge's finding him in contempt without prior notice. On February 22, 2002, appellee moved to have appellant held in contempt for failure to pay child support. A few days later, appellant moved for reduction of his child-support obligation on the ground that he "does not receive and has not received any payments from U.S. Rooter/All-Type Plumbing, his employer, other than his weekly salary of $500."

In his March 5, 2002, letter opinion, the trial judge stated that he found appellant's claim that he made only $375 per week in net income to be "blatantly false and misleading" and stated:

[Appellant] knew that his net income was an issue from the first hearing in this matter. His true and correct income was important for purposes of setting child support, allocating debt responsibility, and setting alimony. Knowing the importanceof this fact, [appellant] engaged in a systematic and studied course of conduct designed to mislead this Court. This conduct was presented in the form of false and misleading testimony before this Court at the temporary hearing, hearing to reduce or terminate alimony and the final hearing. [Appellant] took an oath to tell the truth prior to each of these hearings. [Appellant] knew the importance of telling the truth, yet made a conscience [sic] decision not to do so. [Appellant] is guilty of perjury.

An act is contemptuous if it interferes with a court's business or proceeding, or reflects upon the court's integrity. [Appellant]'s perjurious testimony interfered with the business of this Court. Before a person may be held in contempt for violating a judge's order, the order alleged to be violated must be definite in its terms as to duties imposed, and the command must be express rather than implied. Here there was no order that was violated. There was a violation of the oath to tell the truth. That oath is definite in its terms as to the duties imposed. [Appellant] knowingly violated that oath. [Appellant] is guilty of perjury and that punishment has been specified by the Court.

[Appellant] would have this Court cite him specifically and give him an opportunity to appear and defend. This would be an exercise in futility. [Appellant] clearly knows he did not testify truthfully as to his income. Based upon the testimony of Mr. Mark Rogers, the accountant, it is clear to the Court that [appellant] lied about his income. Mr. Roger's testimony will not be recited here, but it should be pointed out that he was totally credible and clear in his explanation that [appellant] received the K-1 corporate income reported on his tax returns for the years 1995 through 1999. [Appellant] knew what his tax returns stated despite his attempts to lay the blame on his now ex-wife. [Appellant] would have the Court believe he is not the owner of the plumbing company, rather that his father and mother are the owners. This is simply not true and this position is not supported by the facts and evidence.

Appellant argues that the summary punishment for contempt, which was not imposed until after the trial, violated his right to due process because he did not have an opportunity to defend the charge.4 We agree.

The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings. Burradell v. State, 326 Ark. 182, 931 S.W.2d 100 (1996). The power to punish for contempt goes beyond the power given tojudges by statute. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993). An act is contemptuous if it interferes with the order of the court's business or proceedings or reflects upon the court's integrity. Taylor v. State, 76 Ark. App. 279, 64 S.W.3d 278 (2001). There are two basic types of contempt: criminal and civil. The purpose of criminal contempt is to preserve power, vindicate the dignity of the court, and punish for disobedience of the court's order. Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). One of the values of a court's exercise of its criminal contempt power is its deterrent effect on others. Burradell v. State, supra. Criminal contempt is ordered to protect the dignity, integrity, and authority of the courts, regardless of the actor's subjective intent. Id. Civil contempt is instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of those parties. Johnson v. Johnson, supra.

A distinction is drawn between direct contempt, which occurs within the immediate presence of the judge, and constructive contempt, which is directed against the dignity, integrity, and authority of the court but has not been committed in its immediate presence. Davis v. Merritt, 252 Ark. 659, 480 S.W.2d 924 (1972). Open misconduct in the courtroom or coming to court drunk are examples of direct contempt; a failure to pay court costs, or an attorney's failure to appear in court before receiving permission to withdraw as counsel, are indirect contempt. Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2002). Criminal penalties may not be imposed on an alleged contemnor who has not been afforded the protections that the Constitution requires of criminal proceedings. Taylor v. State, supra.5 However,contemptuous acts that occur in front of the judge can be summarily punished. Pounders v. Watson, 521 U.S. 982 (1997); Taylor v. State, supra. Nevertheless, the power to punish for contempt should not be exercised except when the necessity is plain and unavoidable if the authority of the court is to continue. Id. When the appellate court finds that the purposes of criminal contempt proceedings will be met despite a reduction or even a remission of a jail sentence for contempt, it is the practice of the appellate court to modify the judgment. Carle v. Burnett, supra. Contempt authority in general is limited to the least possible power adequate to the end proposed. See In re Oliver, 333 U.S. 257, 274 (1948). If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires that the accused be given notice and a fair hearing. Id. at 275-76.

In Taylor v. Hayes, 418 U.S. 488, 497-98 (1974), the United States Supreme Court discussed the circuit court's imposition of summary punishment for contempt after trial:

This procedure does not square with the Due Process Clause of the Fourteenth Amendment. We are not concerned here with the trial judge's power, for the purpose of maintaining order in the courtroom, to punish summarily and without notice or hearing contemptuous conduct committed in his presence and observed by him. Ex parte Terry, 128 U.S. 289, 9 S. Ct. 77, 32 L. Ed. 405 (1888). The usual justification of necessity, see Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99 L. Ed. 11 (1954), is not nearly so cogent when final adjudication and sentence are postponed until after trial. Our decisions establish that summary punishment need not always be imposed during trial if it is to be permitted at all. In proper circumstances, particularly where the offender is a lawyer representing a client on trial, it may be postponed until the conclusion of the proceedings. Sacher v. United States, 343 U.S. 1, 72 S. Ct. 451, 96 L. Ed. 717 (1952); cf. Mayberry v. Pennsylvania, 400 U.S. 455, 463, 91 S. Ct. 499, 504, 27 L. Ed. 2d 532 (1971). But Sacher noted that "(s)ummary punishment always, and rightly, is regarded with disfavor ...." 343 U.S. at 8, 72 S. Ct. at 454. "(W)e have stated time and again that reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are "basic in our system of jurisprudence." Groppi v. Leslie, 404 U.S. 496, 502, 92 S. Ct. 582, 586, 30 L. Ed. 2d 632 (1972), quoting In re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 507, 92 L. Ed. 682 (1948). Even where summary punishment for contempt is imposed during trial, "the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution." Groppi v. Leslie, supra, 404 U.S., at 504, 92 S. Ct. at 587 (and cases cited therein).

On the other hand, where conviction and punishment are delayed, "it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable (the court) to proceed with its business." Ibid.

In Jolly v. Jolly, 290 Ark. 352, 719 S.W.2d 430 (1986), the Arkansas Supreme Court first addressed the imposition of a criminal contempt citation for false testimony:

Although not by this court, as far as we know, it has been held that the making of a false statement may constitute contumacious conduct if it obstructs the judicial process. In re Michael, 326 U.S. 222 (1945); Ex Parte Hudgings, 249 U.S. 378 (1919). It has been said that the basis for such a determination is the similarity between giving false testimony and refusal to testify altogether. See Steingut v. Imrie, 270 App. Div. 34, 58 N.Y.S.2d 775 (1945). A criminal contempt citation must be based on evidence showing guilt beyond a reasonable doubt. Howell v. State, 257 Ark. 134, 514 S.W.2d 723 (1974). When the question is whether false testimony is contumacious, a contempt citation should not follow from proof showing the party in question testified falsely because of misunderstanding as opposed to proof that she lied wilfully. Silver v. State, 117 So. 2d 509 (Fla. App. 1960). See also Steingut v. Imrie, supra, and the published abstract of People v. Cumby, 348 Ill. App. 223, 108 N.E.2d 736 (1952).

In In Re Cantor, 215 F. 61 (2nd Cir. 1914), there appears the following which is part of the district court's opinion in the case (Hand, J.):

In criminal contempt the accused has all the substantive benefits of one indicted ... among them that of the degree of proof and ... I certainly cannot say on this record that beyond a reasonable doubt this man was deliberately blocking the course of the proceeding by swearing to what he knew was false. The power undoubtedly exists, but it ought to be used very circumspectly. By that, I do not mean that it ought to be surrounded with absurd technicalitywhich will destroy its value, but I do mean that all reasonable explanations should be made. A judge ought not to commit a man for contempt for perjury except in so plain a case as makes further attempt to examine the witness a farce, so obviously that no observer, who was present, could doubt that the witness was obviously trifling with the proceeding. He ought not to judge upon the balance of proof introduced to contradict the witness and so turn the examination into a trial of perjury, for this trenches on the criminal law itself. And, while the line cannot be abstractly stated with success, it can be so administered, if the judges will remember the purpose which it answers, and loyally accept the limitations which the defendant's right to a jury trial throws upon them. [215 F. at 63.]

See also Johnson v. Austin, 76 App. Div. 312, 78 N.Y.S. 501 (1902); Annot., 89 A.L.R.2d 1258 (1963).

290 Ark. at 356-57, 719 S.W.2d at 432-33. In Jolly, the court held that the appellant's testimony was not sufficient to sustain a citation for contempt.

Appellant contends that it was unnecessary to summarily hold him in contempt after the trial because his behavior did not disrupt the trial and summary punishment was not necessary to maintain the dignity of the court. Although we agree with the trial judge that appellant was less than candid about his income, the judge was able to conclude that appellant's testimony was not credible by reviewing the documentary evidence. Given the courts' traditional hesitancy to sanction summary punishment under these circumstances, we reverse and remand for a hearing on this issue so that appellant will have an opportunity to defend the charge of contempt.

Appellant also contends that the trial judge revealed "a potential appearance of bias" and asks us to remand with directions that the judge recuse from hearing any further contempt proceedings against him. We agree that appellant should be given a chance todefend the contempt charge; however, we see no evidence of bias on the part of the trial judge. Therefore, it is not necessary that a different judge try the contempt issue on remand.

Alimony on Direct and Cross-Appeal

The trial judge awarded appellee $100 per month in alimony, stating:

[Appellant] clearly makes and earns an income far in excess of that amount to which he testified during the course of this litigation; [appellee] has a clear and demonstrated need for continued spousal support; [appellant] clearly has an ability to pay spousal support; [appellee] will be able to earn an income, but it will be substantially less than that which [appellant] will be able to earn; [appellant] will have a much greater opportunity to acquire assets; [appellant] is the owner of a plumbing company that will provide him substantial income in the future; this Court hereby awards [appellee] the sum of $100 per month as spousal support until such time as [appellee] remarries, cohabits with another individual to produce a child or until one (1) of the parties dies....

Appellant argues that the trial judge abused his discretion in awarding appellee alimony. He points to the evidence he produced, and which appellee, asserting her Fifth Amendment privilege, did not dispute, showing that she had taken over $140,000 from the businesses and charged, without authorization, over $23,000 on the business credit card between 1995 and 1999. He also points to evidence that appellee paid Terry Farley substantial sums to which she was not entitled during that time period.

As part of her cross-appeal, appellee argues that the trial judge abused his discretion in setting her alimony at $100 per month. She contends that the disparity between the parties' incomes and earning potentials warrants an increase in her support. Appellee's affidavit of financial means showed her take-home pay to be $225.38 per week.

A trial judge's decision regarding alimony is a matter that lies within his sound discretion and will not be reversed on appeal absent an abuse of that discretion. See Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002). The purpose of alimony is to rectifyeconomic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case. Id. The primary factors that a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse's ability to pay. Id. The trial court should also consider the following secondary factors: (1) the financial circumstances of both parties; (2) the amount and nature of the income, both current and anticipated, of both parties; (3) the extent and nature of the resources and assets of each of the parties; (4) the earning ability and capacity of both parties. Id. The amount of alimony should not be reduced to a mathematical formula because the need for flexibility outweighs the need for relative certainty. Id.

The trial judge took into consideration appellee's needs and appellant's ability to pay as well as the secondary factors listed in Davis, supra. The trial judge did not abuse his discretion in awarding appellee alimony because her future earning power is much less than appellant's. Further, he did not err in limiting alimony to $100 per month because appellee is employed, has no physical limitations, and has a nurse's license, which has the effect of enabling her to increase her earnings in the future should she seek and obtain a job in the medical field. Additionally, appellee was awarded one-half of the value of the marital home and sole title to the lot in Cleburne County, one-half of the money that appellant's mother, Maxine, took from the checking account, and child support.

Cross-Appeal

Appellee argues that the trial judge erred in refusing to award her a one-half interest in the leasing company.6 Limiting her arguments to her ownership rights, she points to the minutes of the leasing company's first board of directors meeting and the company's stock certificates, which revealed that she had a one-half interest in this business. These documents are evidence of her ownership, and the trial judge correctly found that she had an interest in the company. However, he declined to award her this property because of her improper conduct in taking money from both businesses.

Arkansas Code Annotated section 9-12-315(a)(1) (Repl. 2002) provides that all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable. The clean-hands maxim, which was applied by the judge, bars relief to those guilty of improper conduct in the matter as to which they seek relief. Lucas v. Grant, 61 Ark. App. 29, 962 S.W.2d 388 (1998). Equity will not intervene on behalf of a plaintiff whose conduct in connection with the same matter has been unconscientious or unjust. Cardinal Freight Carriers, Inc. v. J.B. Hunt Transp. Servs., Inc., 336 Ark. 143, 987 S.W.2d 642 (1999).

Additionally, Ark. Code Ann. § 9-12-315 does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). The statute vests the trial judge with a measure of flexibility and broad powers in apportioning property, non-marital as well as marital, in order to achieve an equitable distribution; the critical inquiry is how the total assets are divided. Id. Here, appellee made no attempt to prove the value of this business; thus, we cannot hold that the trial court erred in distributing the marital property.

The judge granted appellee's motion for an award of costs in the amount of $996.18 but denied her request for attorney's fees. Appellee argues that the trial judge abused his discretion in refusing to award her attorney's fees. The courts recognize the inherent power of a trial judge to award attorney's fees in domestic relations proceedings. See Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000). In determining whether to award attorney's fees, the trial judge must consider the relative financial abilities of the parties. Id. However, attorney's fees in divorce and support cases are not awarded as a matter of right but rest with the trial judge's discretion; his decision will not be disturbed unless that discretion is abused. Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983). Accordingly, based on this record and appellee's total failure to submit proof of her financial condition, we cannot say that the trial judge abused his discretion in denying appellee attorney's fees.

Child Custody

Finally, we must address appellant's appeal of the award of custody of the children to appellee. We give a trial judge's custody decision much deference and will not reverse his findings unless they are clearly erroneous. Taylor v. Taylor, 345 Ark. 300, 47 S.W.2d 222 (2001). There is no other case in which the superior position, ability, and opportunity of the trial judge to observe the parties carries a greater weight than one involving thecustody of minor children. Id. The best interest of the child is the polestar in every child-custody case; all other considerations are secondary. Id.

The trial judge found that both parents had significantly failed in the care and nurture of the children and had engaged in "reprehensible and improper conduct...." He noted that appellee had engaged in an extramarital affair with a female lover and that appellant had attempted to alienate the children from their mother and had intimidated the older child, Tara. He also stated that appellant had engaged in extramarital conduct with his girlfriend while Tianna, the younger child, was in his care and that he had minimal contact with Tara. The judge awarded custody of the children to appellee and awarded appellant visitation.

Appellant focuses on appellee's homosexuality as a reason why the judge erred in awarding her custody of their daughters. In Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987), this court affirmed a change of custody from the mother to the father of the children after the mother moved in, and shared the bedroom with, her female lover while the children were present. Although the mother's homosexuality was one of the factors considered by the chancellor, he also considered the facts that, with their father, the children would reside in their old neighborhood and that their mother's educational goals would substantially interfere with her time for parenting. Additionally, the chancellor voiced his concern about the mother's emotional stability (she had attempted suicide in the past) and the morality of the mother's cohabitation with a lover (whether of the same or opposite sex). In affirming, this court stated: "[I]t has never been necessary to prove that illicit sexualconduct on the part of the custodial parent is detrimental to the children. Arkansas courts have presumed that it is." 21 Ark. App. at 198, 730 S.W.2d at 513.7

More recently, we have emphasized, in custody cases involving a parent's sexual activities, that the focus should be on the parent's conduct, not on her sexual preference. See Larson v. Larson, 50 Ark. App. 158, 902 S.W.2d 254 (1995). Indeed, Arkansas case law has never condoned a parent's unmarried cohabitation, or a parent's promiscuous conduct or lifestyle, when such conduct is in the presence of a child. Taylor v. Taylor, supra.

Therefore, appellee's actions, and not her homosexuality, are of concern here. She admitted that she began her affair with Sherry Stillman several months before the parties separated. She used her office e-mail account to send love notes to Sherry before she separated from appellant. Appellee asserted that they had terminated the sexual part of their relationship but admitted that they had been sexually involved until July of 2001, which was over six months before the parties were divorced and long after appellee had moved her daughters into a separate apartment in Sherry's duplex. Although appellee steadfastly maintained that she and her daughters lived in another apartment of the "duplex," there was evidence that cast doubt on whether her living quarters were actually separate from Sherry's. Sherry Stillman, appellee's lover, testified that she is no longer involved sexually with appellee since she received her non-denominational minister's license.

We do note that appellee's sexual liaison was not conducted in the presence of the children. Even though she maintained a friendship with Sherry Stillman, there was an absence of proof of any sharing of a bedroom or sleeping together with the children residing in the abode. On the other hand, appellant had his sexual partner in the home while the younger daughter was with him for overnight visitation. Additionally, he went to some length to interfere with the relationship between the mother and the older daughter by castigating the mother's relationship with Sherry.

What is clear from the record is that both of the girls are very close to their mother and want to stay with her. Tara was adamant that she not live with, or even visit, her father. She testified that, since the parties' separation, her father and his parents had harangued her for hours about appellee's faults. She said that her father had told her that her mother was a bitch and a lesbian, that she stole a lot of money and is going to hell, and that she is crazy. Tara also said that appellant had attempted to make her read appellee's e-mails (apparently those addressed to Sherry) and that he had intimated that he might kill himself. Although appellant denied telling his daughter that her mother was going to hell, he admitted that he did explain that lesbians are breaking God's laws and are going to hell. Appellant also acknowledged that he has only seen his oldest daughter about four times in the last two years.

Considering the deference that this court gives a trial judge's decision about custody of children, we affirm his award of custody of the girls to appellee. We have stated the well established principle that the lower court determines the credibility of the witness. See Dewitt v. Johnson, supra. Given the settled case law reflecting that, unless exceptionalcircumstances are involved, siblings should not be separated from each other by dividing their custody, it was clearly in the best interest of both children to be in appellee's custody. See Ketron v. Aguirre, 15 Ark. App. 325, 692 S.W.2d 261 (1985).

Affirmed in part and reversed and remanded in part on direct appeal; affirmed on cross-appeal.

Bird and Crabtree, JJ., agree.

1 In her cross-appeal, appellee has not argued that any error occurred as a result of the negative inferences the trial judge obviously drew from her invocation of this privilege; hence, we do not address that question.

2 The version of Administrative Order No. 10 in effect when the divorce decree was entered provided in Section IIIc that support should be calculated based on the last year's tax returns and quarterly estimates for the current year. However, the order denying Kevin's motion for modification on March 8, 2002, was entered after the most recent version of Administrative Order No. 10 went into effect.

3 After the trial judge determined appellant's income, he properly referred to the family-support chart in setting the amount of support. Stepp v. Gray, 58 Ark. App. 229, 947 S.W.2d 798 (1997). We note, however, that the most recent version of the support chart would set appellant's monthly obligation at $1,102. Because appellee has raised no error in this regard, we need not consider the possible effect of the increase.

4 We note that appellant has not challenged the nature of the punishment imposed (hours in service to Habitat for Humanity).

5 In criminal proceedings, due process requires that an alleged contemnor be notified that a charge of contempt is pending against him and that he be informed of the specificnature of that charge. Allison v. DuFresne, 340 Ark. 583, 12 S.W.3d 216 (2000). The fundamental requirements of due process require an opportunity to be heard at a meaningful time and a meaningful place before a person may be deprived of life, liberty or property. Franklin v. State, 267 Ark. 311, 590 S.W.2d 28 (1979).

6 We note that appellee, neither below nor on appeal, argues that the court inappropriately applied the clean-hands doctrine.

7 In Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), the supreme court held that this state's sodomy statute was unconstitutional as violative of the Arkansas Equal Rights Amendment. In its decision, the court disapprovingly referred to Thigpen v. Carpenter as an example of how a party's homosexuality had contributed to her loss of the custody of her children.