Charles F. Burkett v. Martha A. Burkett

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca04-243

DIVISION II

CA04-243

September 7, 2005

CHARLES F. BURKETT AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[DV01-688]

V. HON. ALICE S. GRAY, JUDGE

MARTHA A. BURKETT AFFIRMED IN PART;

APPELLEE REVERSED IN PART

WENDELL L. GRIFFEN, JUDGE

This is an appeal from a post-divorce contempt order. In a prior appeal to this court, appellant Charles Burkett unsuccessfully challenged the trial court's award of half of his federal retirement pension to his ex-wife, appellee Martha Burkett. He now challenges the trial court's findings that he is in contempt of the trial court's order following the previous appeal because he failed to pay retirement benefits to appellee as ordered and removed personal property from the marital home. He further asserts that the trial court erred in ordering him to pay attorney's fees and costs and in admitting hearsay evidence regarding the cost of filling the hole in the yard after the pool was removed.

We affirm the trial court's finding that appellee was in contempt for failure to pay appellee one-half of his federal retirement income, and accordingly, we affirm the award of attorney's fees and costs. However, we reverse the trial court's findings that appellee was in contempt for removing personal property from the marital home. Because we hold that appellee was not in contempt on that ground, we do not reach the issue of whether the trialcourt improperly admitted hearsay testimony regarding the removal of the pool.

The parties in this case were divorced in an order entered on February 20, 2002. The divorce order provided that the parties' home was marital property, of which appellant was to have sole possession until the home was sold. The order required him to keep the house at all times in a good and salable condition, to take all reasonable action to show the house in its best light, and to facilitate the quickest and best possible sale. The order further awarded specific personal property to each party (none of which is the subject of this appeal) and specified that except as otherwise noted, each party was to have sole ownership of all property currently in his or her possession. Finally, the trial court determined that appellant's federal retirement benefit was marital property and ordered appellant to pay directly to appellee one-half of his total monthly benefits, beginning November 1, 2001, and continuing until the federal government began paying appellee her share of his monthly benefits.

Despite the trial court's order and despite this court's decision in the prior appeal, appellant failed to pay appellee any portion of his retirement until after she filed her first contempt motion. Appellant then made the first payment of $4150 a few days prior to the contempt hearing that was held on August 29, 2002. Thereafter, on December 13, 2002, appellee filed a second motion for contempt, alleging that appellant had not maintained the house; had removed and sold certain fixtures; had removed the deck and swimming pool, leaving a hole in the back yard that devalued the property; and had again failed to pay her share of his retirement pay.

Three hearings were held on appellee's motion. The trial court subsequently entered an order finding appellant in contempt and ordering him to pay appellee $3311 for her share of his retirement pay, $1000 for court costs and attorney's fees, and an amount that the court determined to be appellee's share of the personal property removed from the premises. Appellant appeals from this order.1

I. Retirement Pay

Appellant's first argument is that the trial court erred in ordering him to pay appellee $3311 as her share of his Federal Employees Retirement System (FERS) benefits. Appellant asserts that he was overpaid because he received an award from Social Security that included substantial retroactive Social Security benefits, which, pursuant to 5 U.S.C. § 8452, required a reduction in his FERS benefits. He also asserts that because he has paid appellee more than she was entitled to receive, he cannot be held in contempt for "failure" to pay her half of the $18,000 he received in retirement benefits.

It is undisputed that, at the time appellee filed her motion, she had not received a payment from appellant since December 2002. Appellant has since paid appellee a total of $5950, as follows: a lump sum payment of $4150 (for the past due amount from the first contempt motion) and four subsequent monthly payments of $450 for September 2002 through December 2002. Appellee asserts that her share of appellant's retirement should not be reduced due to the overpayment appellant received. Because appellant received approximately $18,000 in FERS benefits during the period in question, appellee counters that he owes her one-half of that, or nearly $9000. Because appellant was credited by the trial court with having paid appellee $6000, she claims the total amount unpaid is $3311. We agree that appellant was in contempt for not paying appellee her share of his retirement benefits and that he owes appellee $3311 for her unpaid share of those benefits.

Appellant below offered Defendant's Exhibit A and B to show that he had received an overpayment of FERS benefits. Defendant's Exhibit A was a document from the FERSindicating how his overpayment was calculated-between September 9, 2001, and February 28, 2003, appellant received benefits totaling $20,754 when he should have received benefits of only $8166. Defendant's Exhibit B was a "Notice of Debt Due Because of Annuity Overpayment" from the Office of Personnel Management (OPM), the federal agency that distributes federal retirement benefits. Exhibit B indicated the cause of the overpayment as "Social Security Award Overpayment."

In determining that appellant's overpayment would not reduce appellee's entitlement to receive one half-of appellant's retirement benefits, the trial judge indicated that he did not "know enough about it to count any overpayment against" appellee and that he could not tell whether appellant had voluntarily reduced the benefit in exchange for another federal benefit. In refusing to penalize appellee for appellant's overpayment, the court stated: "The Court agrees with [appellee's] argument regarding this retirement because I can't say that any overpayment that is being deducted from retirement should be counted against [appellee].... I've never seen retirement reduced; so I would have to have stronger evidence regarding the deductions."

After this ruling, the trial court determined that appellant should have received $18,622 in retirement benefits. Using the OPM's figure of $20,754 as the amount of benefits that appellant received, the trial court then subtracted an amount for that time period preceding its order in which appellant was not responsible for paying appellee half of his retirement; the result was $18,622. It then divided $18,622 in half, which equaled $9311, then subtracted $6000 (the amount the court credited appellant as having paid) from $9311, leaving $3311 due to appellee. Appellant now finds fault with the trial court's finding of contempt and with what he deems as the trial court's speculation regarding the nature of theoverpayment.2

The contempt involved here is civil contempt, which compels compliance with the court's order for the benefit of private parties. See Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004). The standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. Id. Although appellant would have this court believe that the main issue is whether appellee's benefits should have been reduced because appellant's benefits were reduced due to the overpayment, that is not the main issue. The main issue is whether the trial court's holding that appellant was in contempt for not paying appellee her share of his retirement benefits is clearly against the preponderance of the evidence. We hold that it is not and affirm the trial court's contempt finding against appellant and the $3311 award to appellee.

First, the only explanation offered by appellant as to why he failed to pay appellee benefits after December 2002 was that he thought appellee was receiving the payments directly from the OPM. However, he offered no documentation or other evidence to indicate why he thought this was so.

Second, his purported "defense" of overpayment seems misdirected on an appeal from a contempt order. In essence, he argues that he was not in contempt for not paying appellee as ordered because when he initially (and belatedly) paid her, he paid her more than she was legally entitled to receive. In a contempt case, where the failure or refusal to abide by an order of court is the issue, the appellate court does not look behind the order to determine whether the order is valid. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993). The fact that a decree or order is erroneous does not excuse disobedience on the part of those whowere bound by its terms until reversed. Id. Thus, even if appellee has been "overpaid," that did not excuse appellant from failing to comply with the court's order in the first instance.

Nor are we convinced by appellant's assertion that the trial court improperly speculated as to the nature of the overpayment. The trial court's comments concerning the possible reasons for the overpayment do not show that the court speculated in determining that appellee was entitled to receive additional payment, but simply highlighted the court's consternation at appellant's lack of proof regarding the nature of the overpayment. The precise nature of that overpayment, the reason for the overpayment, and the legal ramifications thereof, were not proven to the trial court.

Accordingly, we hold that the trial court did not err in determining that appellant was in contempt for failing to pay appellee half of his retirement benefits and in ordering him to pay her $3111 as her share of those benefits. Because we agree that appellant was in contempt of the trial court's order in this regard, we also affirm the award of attorney's fees and costs to appellee.

II. Removal of Personal Property

Appellant also argues that the trial court erred in holding him in contempt for removing and selling personal property from the marital home because the trial court's order did not specifically prohibit him from doing so. The particular items at issue are a pool and deck, an electric stove, a cabinet, and a burglar alarm. We reverse the trial court's findings that appellee was in contempt for improperly removing these items of personal property from the marital home.

For a person to be held in contempt for violating a court order, the order must be clear and definite as to duties imposed upon the party, and directions must be expressed rather thanimplied. Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995). Thus, a person cannot be held in contempt for failing to do something that the trial court did not order. Id. The trial court's order here mandated that appellant keep the marital home at all times in a good and salable condition and to take all reasonable action to show the house in its best light and to facilitate the quickest and best possible sale. However, with regard to personal property, the order merely divided some specific pieces of personal property (none of which are the subject of the contempt order) and further provided that unless otherwise noted, each party was to have sole ownership of all personal property currently in his or her possession. Thus, the trial court's order impressed no clear and definite duties upon the parties with regard to the items of personal property that are the subject of this appeal. As such, we reverse because the trial court erred in determining that appellant was in contempt for exercising control over that property.

Because we reverse on this point, we do not reach the merits of appellant's argument that the trial court erred in admitting hearsay evidence regarding the removal of the pool.

Affirmed in part; reversed in part.

Glover and Roaf, JJ., agree.

1 The court also found that appellant was in contempt for damaging a microwave cart and freezer before he turned them over to appellee. Appellant does not appeal from those findings.

2 We detected minor errors in the trial court's calculations; however, neither appellant nor appellee find fault with the trial court's actual calculation of the amount of the award to appellee.