Monte Lilburn Boulanger v. Kathi Lilburn

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ca03-960

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA03-960

June 16, 2004

MONTE LILBURN BOULANGER AN APPEAL FROM BENTON

APPELLANT COUNTY CIRCUIT COURT

[DR02-766-4]

V. HON. JOHN SCOTT, JUDGE

KATHI LILBURN APPEAL DISMISSED

APPELLEE

Wendell L. Griffen, Judge

This is an appeal from a contempt order. Appellant Monte Lilburn Boulanger1 was ordered to procure for his ex-wife, appellee Kathi Lilburn, 356 shares of Wal-Mart stock because, in violation of the parties' divorce decree, he sold vested stock options that had been determined to be marital property. He appeals from that order and from the circuit court's denial of his motion to reconsider the contempt order. Because appellant has purged himself of the contempt, we hold that his appeal is moot. Therefore, we dismiss.

A hearing was held on appellee's complaint for divorce on January 22, 2003. The circuit court granted the divorce and made various rulings concerning child custody, child support, visitation, and property and debt division, but the only ruling at issue in this case is the court's determination regarding appellant's vested Wal-Mart stock. The court orally found that, "The balance of the defendant's stock options, 401(k) plan, bonuses, [and] profit-sharing plan shall be divided fifty-fifty between the parties as of this date."

The written order was filed on February 19, 2003, and an amended order was filed the same day. The written order contained a detailed explanation of appellant's rights and obligations regarding the stock options. The order specified: 25. The Plaintiff shall be entitled to one-half (½) of the value of the Defendant's vested stock options, 401K retirement account, bonus and profit sharing, as of this date, held by his employer, Wal-Mart, Inc. . . .

. . .

c. In the event of an opportunity to exercise options, Monte Boulanger, a.k.a. Monte Lilburn shall immediately and fully inform Kathi Lilburn of such opportunity.

. . .

k. Monte Boulanger, a.k.a. Monte Lilburn shall provide at least six months' notice to Kathi Lilburn of his intent to exercise or not exercise options.

Before the written order was filed in this case, appellant became concerned that the war in Iraq would devalue the parties' stock. The day before the written order was entered in this case, appellant contacted Wal-Mart and informed the company of his intent to sell the stock options. Appellant alleges that he acted on the advice of his attorney, but admits that he provided appellee with no notice of his intent to sell the stock options. According to the documentary evidence submitted by appellant, he sold the stock options on February 24, 2003, after the written order was filed on February 19. On February 25, 2003, appellant's attorney drafted a letter informing appellee that "Mr. Boulanger will exercise the remaining stock options he has under Wal-Mart Stores, Inc." However, appellant admitted that the letter was not faxed until 4:50 p.m. on February 27, 2003.

Appellant received a check in the amount of $5,500.65 for the sale of the stock options. Appellee thereafter filed a motion for contempt, and a hearing was scheduled for April 1, 2003. Appellant filed a motion for continuance, but cited no specific reason to support that a continuance was necessary other than "good cause." Immediately prior to the April 1 hearing, appellant sought a ruling on the motion. His attorney informed the court that the continuance should be granted because he (the attorney) needed to be available to testify that appellant acted on his advice, and because appellant needed time to find another attorney.2 The court denied the motion.

During the contempt hearing, the court questioned appellant regarding his understanding that he was required to provide appellee advance notice before exercising the stock options. Appellant testified that he relied upon the advice of his attorney. The court expressly stated that it did not believe appellant's assertion that his attorney told him that he did not do anything wrong because he was acting on his attorney's advice. The court found appellant to be in contempt and ordered him to purchase 356 shares of stock for appellee, representing her one-half of the stock options that had been exercised. The court also ordered him to pay appellee's attorney's fees and sentenced appellant to immediately serve twenty-four hours in the Benton County jail.

Appellant's attorney objected to the court's ruling, again arguing that the court should grant the continuance to allow him to testify on appellant's behalf. He also asserted that the contempt violated appellant's due process rights to have witnesses testify on his behalf. The court allowed the attorney to proffer his testimony, but denied appellant's request for a continuance.

On April 2, 2003, appellant filed a motion for reconsideration on the ground that the award pursuant to the contempt order "does not reflect the cost basis of the original stock price nor does the award address the tax liability of either party." The court's decision from the contempt hearing was filed on May 5, 2003. Appellant timely filed a notice of appeal from the May 5 ruling.

The court considered appellant's motion for reconsideration on June 3, 2003. At the hearing, appellant argued that the court's order provided for an inequitable division of property that contravened the court's previous order regarding the division of marital property. Appellant requested that the court subtract from the award to appellee the expense that appellant incurred in procuring appellee's stock. The court denied the motion, and appellant filed an amended notice of appeal to include the denial of the motion for reconsideration.

Although neither party addresses the issue, we must dismiss appellant's appeal because it is moot. An issue is moot when it has no legal effect on an existing controversy; that is, when a decision of this court could not afford appellant any relief. Bryant v. Arkansas Pub. Serv. Comm'n, 45 Ark. App. 47, 870 S.W.2d 775 (1994). Normally, our appellate courts do not address moot issues. Dillon v. Twin City Bank, 325 Ark. 309, 924 S.W.2d 802 (1996). Further, the general rule regarding contempt orders is that where the terms of a contempt order have been fulfilled, the issue of the propriety of the contempt order is moot. See Central Emergency Med. Servs., Inc. v. State, 332 Ark. 592, 966, S.W.2d 257 (1998)(dismissing appeal from criminal contempt order as moot where emergency medical service provider purged itself of contempt by paying a fine the court imposed); Minge v. Minge, 226 Ark. 262, 289 S.W.2d 189 (1956)(holding the issue of civil contempt was moot, where the party held in contempt for failure to pay child support paid the delinquent child support and purged the contempt). Cf. Taylor v. State, 76 Ark. App. 279, 64 S.W.3d 278 (2001) (holding that a criminal contempt order was not moot where a juror had been immediately jailed and was fined for the failure to appear but where it was not clear from the record whether she had paid her fine).

It is apparent from the record in the instant case that appellant complied with the terms of the contempt order. During the contempt hearing, the circuit court ordered appellant to be taken into immediate custody to serve his jail sentence. Further, at the hearing on motion for reconsideration, appellee did not argue that appellant had not complied with the contempt order. In addition, appellant submitted evidence of a monetary transfer from his bank account to Wal-Mart in the amount of $21,305.17, which was the amount that he asserted it cost to purchase the 356 shares of stock. Because appellant served the jail time ordered and purchased the stocks as ordered by the court, he has purged himself of the contempt.3 Therefore, his challenges to the propriety of the contempt order are moot. Central Emergency Med. Servs., Inc., supra; Minge v. Minge, supra. Accordingly, we dismiss appellant's appeal.

Appeal dismissed.

Hart and Roaf, JJ., agree.

1 Appellant is referred to in the divorce decree as "Monte Boulanger, a.k.a Monte Lilburn." No explanation is given for his alternative name.

2 Appellant's attorney withdrew on April 9, 2003, and appellant obtained substitute counsel.

3 We recognize that a court of equity may fashion any reasonable remedy justified by the proof, see Miller v. Miller, 70 Ark. App. 64, 14 S.W.3d 903 (2000), but we are at a loss to ascertain why the trial court did not order appellant to purchase stock options to replace the options he had exercised. Appellant exercised stock options; he did not buy or sell actual stock. Nonetheless, the court ordered him to replace the stock options with stock. Appellee was entitled to receive one-half of the value of the stock options, or $2,570.33. What she received was stock that cost appellant $21,305.17 to procure. Had appellant filed a supercedeas bond and immediately appealed from the contempt order, this court could have addressed that issue. However, because appellant did not immediately appeal from the contempt order and complied with the terms of the order, this court cannot now address that issue.