Paul Hampton v. Jennifer Hampton

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

PAUL HAMPTON

APPELLANT

V.

JENNIFER HAMPTON

APPELLEE

CA 02-926

JUNE 18, 2003

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FIFTEENTH DIVISION

[NO. DV2002-536]

HONORABLE ROBIN MAYS,

JUDGE

REVERSED

Appellant Paul Hampton and appellee Jennifer Hampton separated in January 2002, and Mrs. Hampton filed for divorce on February 5, 2002. One child was born of the marriage and Mr. Hampton had custody of his nine-year-old daughter from a previous marriage. After a hearing on March 7, 2002, the parties reached an agreement as to certain issues on a temporary basis. The trial court adopted the parties' agreement, and entered a temporary order on April 2, 2002. The order gave temporary custody of the parties' child to Mrs. Hampton, and set Mr. Hampton's child support at $108.00 per week. The order also required Mr. Hampton to make the first and second mortgage payments on the parties' residence, as well as the payments on their 1989 Chevrolet Suburban and 2001 GMC van. The trial court further ordered Mr. Hampton to service the indebtedness on several credit cards. Mrs. Hampton was ordered to vacate the marital residence and relinquish the van,

thereby giving temporary possession of both vehicles to Mr. Hampton.

On April 19, 2002, Mrs. Hampton filed a motion for contempt, asserting that Mr. Hampton failed to comply with the temporary order by failing to pay child support and failing to make payments on the van. The trial court ordered Mr. Hampton to appear and show cause why he should not be found in contempt, and a hearing was held on May 22, 2002. At the hearing, the parties agreed to orally amend the motion for contempt to include Mr. Hampton's failure to make mortgage payments, payment on the Suburban, or payments on the credit cards. After the hearing, the trial court held Mr. Hampton in criminal contempt based on its finding that he flagrantly and willfully disobeyed the temporary order, and sentenced him to ten days in jail. Mr. Hampton now appeals, arguing that there was insufficient evidence that his failure to comply with the temporary order was willful. We reverse the contempt order.

Contempt is generally classified as either criminal attempt or civil contempt, but the substantive difference often becomes blurred. Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). 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. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). The purpose of criminal contempt is to preserve power, vindicate the dignity of the court, and punish for disobedience of the court's order. Id.

Pursuant to Arkansas Code Annotated section 16-10-108(a)(3) (Repl. 1999), a court has the power to punish, as for criminal attempt, a person for "[w]illful disobedience of anyprocess or order lawfully issued or made by it." However, a judge's power to punish for criminal contempt is not limited by § 16-10-108, as such power is inherent in the courts and goes beyond the power given to judges by statute. Johnson v. Johnson, supra. If an alleged contemnor defends on the ground of his inability to make ordered payments, it is his obligation and responsibility to present evidence of his allegedly dire financial condition. See Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2001).

A criminal contempt citation must be based on evidence beyond a reasonable doubt. Witherspoon v. State, 322 Ark. 376, 909 S.W.2d 314 (1995). In an appeal of a case of criminal contempt, we view the record in the light most favorable to the decision of the trial judge and sustain the decision if it is supported by substantial evidence. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993). Substantial evidence is evidence of sufficient force and character as to compel a conclusion one way or another, forcing the mind to pass beyond suspicion or conjecture. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995).

Mrs. Hampton testified that before the hearing, Mr. Hampton became current on his child-support obligation. However, she stated that he failed to make payments on the Suburban or the van, and that as a result the van has been repossessed. Mrs. Hampton further testified that while Mr. Hampton made a payment on the first mortgage in March 2002, he failed to make the payment in April 2002 or May 2002, and that he failed to make the May 2002 payment on the second mortgage. She also indicated that Mr. Hampton was behind on the credit card payments.

The testimony of Mrs. Hampton established that the amount of the first mortgagepayment is $850.00, and the amount of the second mortgage payment is $250.00. The monthly payments for the van and Suburban are $750.00 and $230.00, respectively.

Mr. Hampton did not deny that he failed to make court-ordered payments as alleged in Mrs. Hampton's testimony. However, he explained that he was delinquent because he was paying rent for another residence where he resided after the parties' separation, and was "trying to play catch-up." Mr. Hampton further stated that just two days before the hearing he received a $1200.00 check from his ex-wife for back child support. Mr. Hampton represented that his only sources of income are his paycheck1 and child support. He stated that he is a police officer and was able to work extra time and earn more money while living with Mrs. Hampton, but can no longer do so because there is no one to care for his daughter. As a result of his financial situation, Mr. Hampton testified that he intends to file for bankruptcy.

Mr. Hampton acknowledged that, since the separation, he has opened accounts at jewelry stores and purchased jewelry for himself and his girlfriend. However, he stated that he was not current on his payments. He also acknowledged charging $8000.00 for furniture to furnish the marital home, but explained that the house was almost completely empty when he moved back in, but stated that he will owe no payments on the furniture for a year. Mr. Hampton also admitted that he pays for a cell phone used both by his daughter and his girlfriend.

For reversal, Mr. Hampton argues that the trial court erred in failing to make a finding that he was able to pay and thus that his failure to comply with the temporary order was willful, and submits that such a finding was necessary to hold him in contempt. He further asserts that his failure to make the ordered payments was not willful in light of the aggregate sum of the payments and his limited financial means. Mr. Hampton contends that the trial court erred in relying in part on the fact that he purchased jewelry for himself and his girlfriend because there was no evidence that these purchases occurred after the temporary order was entered. Moreover, he asserts that the jewelry was purchased on credit, which he is behind on, and thus this could not have compromised his ability to make the court-ordered payments. Finally, Mr. Hampton argues that the trial court erred in stating in its order that he "has not made one payment on any of his debts he agreed to pay since entry of the order." Mr. Hampton notes that, since entry of the order, he caught up on his child-support obligation and made one payment on the first mortgage as well as two payments on the second mortgage.

In its order, the trial court relied on the following findings in reaching its decision to hold Mr. Hampton in contempt:

The court finds respondent, Paul Hampton, is in criminal contempt of the Temporary Order for the following reasons: Respondent agreed to make the payments ordered in the Temporary Order, on March 7, 2002, and has not made any payments since March of 2002. Respondent has purchased jewelry for both himself and his girlfriend, rather than pay the marital bills, and is furnishing a cell phone for his girlfriend. Respondent has flagrantly and willfully disobeyed the Temporary Order, which was entered only six (6) weeks ago and to which he agreed to make the payments. He has not made one payment on any of the debts he agreed to pay since the entry of the order. Such conduct rises to the level of criminal contempt.

We hold that the trial court's findings of fact, on which its conclusion that Mr. Hampton was guilty of criminal contempt was premised, are not supported by substantial evidence. The trial court found that Mr. Hampton bought jewelry in lieu of making court-ordered payments, but there was no evidence that the jewelry was purchased after the temporary order was entered, or whether Mr. Hampton actually paid any money toward the purchases. Moreover, the trial court erred in finding that Mr. Hampton "has not made one payment on any of the debts he agreed to pay since the entry of the order." It is undisputed that, in addition to paying child support, Mr. Hampton made some of the court-ordered mortgage payments. Because substantial evidence does not support the findings of the trial court, we must reverse. We do not, however, reverse the trial court's award of an attorney's fee to appellee inasmuch as Mr. Hampton was clearly in arrears in complying with the temporary order.

Reversed.

Pittman and Hart, JJ., agree.

1 The temporary order set child support based on Mr. Hampton's bi-weekly net earnings of $1172.65.