John Russell Sparks v. Sue Beth Sparks (Bates)
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV
CA05914
March 15, 2006
JOHN RUSSELL SPARKS
APPELLANT
AN APPEAL FROM HOWARD COUNTY
CIRCUIT COURT
[No. E9151]
v.
HONORABLE TED C. CAPEHART,
CIRCUIT JUDGE
SUE BETH SPARKS (BATES)
APPELLEE
AFFIRMED
Olly Neal, Judge
Appellant John Sparks brings this onebrief appeal from an order of the Howard
County Circuit Court finding him in contempt for nonpayment of child support and
incarcerating him until all delinquent payments and attorney’s fees were paid. Appellant
raises seven points on appeal. We affirm.
Appellant and appellee Sue Sparks Bates were divorced by decree of the Howard
County Chancery Court entered on June 26, 1991. The decree incorporated a stipulation
agreement providing that the parties would have joint custody of their two minor children,
Jared, born June 17, 1988, and Kayla, born October 19, 1989, with appellee to have primary
residential custody. Appellant was to pay $60 per week in child support and was awarded
visitation with the children.
On September 19, 1994, an agreed order was entered by the Hempstead County
Chancery Court resolving several petitions and counterpetitions seeking enforcement and
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modification of the decree. The order found that appellant was in arrears in the payment of
child support in the amount of $720 but that the parties agreed to compromise and settle
appellant’s monetary claims against appellee arising from the division of marital property in
exchange for forgiveness of this arrearage. The order also modified the decree to provide that
appellee had custody of the minor children, subject to appellant’s specified visitation.
Appellant’s childsupport obligation remained $60 per week. The case was transferred back
to the Howard County Chancery Court.
On November 25, 1998, appellee filed a motion for contempt, alleging that appellant
was $6,120 in arrears in his childsupport payments. Appellant answered, admitting that he
was in arrears in his support payments. On March 30, 1999, the trial court entered an agreed
order finding that appellant had paid $3,000 towards the arrearage, that appellant was to
continue to pay current support of $60 per week, that appellant was to pay $60 per month
on the remaining arrearage of $3,000, and that appellant was to pay $25 per month for
reimbursement of unpaid medical bills.
On January 21, 2005, appellee filed the petition leading to the present appeal. The
petition alleged that appellant was in contempt for failing to pay child support and dental
bills as ordered, stating that the arrearage was “in excess of $11,000.” The petition also
alleged that the circumstances had changed and that appellant’s support obligation should
be modified. Appellee’s prayer for relief requested, in part, “that [appellant] be cited for
contempt of court and punished until he has complied with previous orders of this Court.”
Appellant filed an answer denying the material allegations of the petition. He also filed a
counterclaim seeking to reduce his childsupport obligation, alleging that his income had
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At appellant’s request, the case had been transferred to Hempstead County pursuant to
Ark. Code Ann. § 912320 (Supp. 2005).
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decreased. Appellant also sought to hold appellee in contempt for denying him visitation as
specified in the September 1994 order.
Appellee Sue Sparks Bates testified that she was attempting to enforce the divorce
decree because appellant was “some $11,000 in arrears.” She identified an unpaid dentist bill
in the amount of $300, together with a childsupport check for $300 that had been returned
unpaid. The $300 unpaid check needed to be added to the arrearage, according to appellee.
She stated that appellant’s childsupport obligation of $60 per week had not been adjusted
since the original divorce decree was entered and needed to be modified to reflect his current
income. Appellee also denied that she and appellant had an agreement for appellant not to
pay child support. She admitted that appellant performed electrical work at her businesses
but stated that she did not know the value of those services.
Appellee stated that she had never denied appellant extended visitation with the
children, asserting that appellant “just kind of quit getting them” and never asked for
extended visitation of fourteen days. She also testified that she owned a convenience store
and a fitness center and that the children work in the businesses. Appellee admitted that she
had sometimes scheduled the children to work during appellant’s visitation or that she may
have called them in during his visitation. She denied that the children’s working interfered
with appellant’s visitation but stated that, on one occasion, the children went to Hope rather
than go to their scheduled visitation.
Bobbie Jo Green, the Howard County Circuit Clerk, testified that, according to her
office’s records, appellant was $11,460 in arrears before a payment was made on the
morning of trial. She stated that her office attempts to log when a parent is given credit for
extended visitation but the last time that appellant asked for or was given a credit for
extended visitation was in 2000.
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Gwen Sparks, appellant’s wife, testified that she handled the payment of child support
and medical and dental bills for appellant during the seven years they have been married. She
stated that they had paid $5,859.91 in dental expenses and $6,417.30 in medical expenses
since 1999, but she did not know about the $300 dental bill appellee was claiming as unpaid.
To her knowledge, all medical and dental bills were current. She stated that, during the week
prior to trial, appellant went to the childsupport office to seek credit for the extended
visitation appellant asserts he was denied. According to Mrs. Sparks’s testimony, appellant
was entitled to a credit of $1,260 for the total abatement of support during the periods of
extended visitation. She identified an exhibit showing the periods claimed for abatement and
a bill for $1,549.98 for electrical work by appellant at appellee’s businesses and stated that
appellant was seeking a setoff for this amount.
Mrs. Sparks further testified that appellant was seeking a reduction in his child
support obligation based on his average monthly income of $757.14 for the years 2002,
2003, and 2004 and identified tax returns filed for those years. She acknowledged that
appellant was in arrears in his support payments. However, she disputed appellee’s testimony
concerning visitation, stating that appellant had not been allowed his full summer or holiday
visitation. Mrs. Sparks also stated that there were occasions during weekend visitation when
appellee asked that the children work at her businesses and that, on at least two occasions,
appellant refused. Finally, she admitted that appellant adopted her two children in 2004.
Appellant testified that he was aware of his obligation to pay child support of $60 per
week but asserted that he did not intentionally not pay his support. He also stated his belief
that he had an agreement with appellee not to pay support during the time he was having to
go to court over the adoption of Gwen Sparks’s children. Appellant testified that he believed
that appellee would notify him when he needed to catch up in his support payments. He
testified that he was seeking a reduction in his child support due to a reduction in his income
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since the divorce in 1991. Appellant testified that he was a master electrician and that his
charge for a service call had recently increased to $50. Appellant also stated that he
sometimes bids on jobs, calculated at $40 per hour. He stated that he did not bill appellee for
the electrical work, stating that he did not consider it fair for appellee to pay him if he was
not paying appellee child support. He admitted that he did the work expecting to be paid. He
also said that the electrical work had nothing to do with his child support.
Appellant said that he was asking the court to hold appellee in contempt for
interfering with his visitation. He stated that he has not exercised consistent weekend
visitation for a variety of reasons, including that the children were working for appellee, the
children were on a cruise on Father’s Day, and attended other family functions with
appellee’s family. He also described an incident when his daughter wanted to go to Hope to
go bowling during his visitation period. He refused to allow her to go, but, he said, appellee
overruled his decision and allowed Kayla to go.
Kayla Sparks, the parties’ daughter, testified that appellee had not prevented her from
visiting with appellant. She said that her work for her mother’s businesses did not prohibit
her visitation. Although she had spent spring break with her father, Kayla stated that
appellant had never asked her to spend several weeks in the summer with him. She could not
recall whether her stepmother asked for her to spend spring break with appellant. She
admitted that there were times when her mother’s family plans prevented visitation but
denied that they were “numerous.” She also admitted that there were times when her mother
asked her to work at her business during visitation. She denied telling her father that she did
not want to visit.
The trial court ruled from the bench, finding that appellant was in arrears in the
amount of $11,700, including a $300 check returned due to insufficient funds. The court
allowed appellant a setoff of $1,549.98 for electrical work performed on appellee’s business.
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The trial court further found that appellant’s testimony concerning appellee denying
visitation was not credible, stating that it was an afterthought trying to get out of paying child
support. As to appellant’s income, the trial court stated that appellant’s testimony that his net
income as a master electrician was $136 to $147 per week for some weeks was not credible.
Appellant was imputed with a net income of $250 per week, resulting in his support
obligation remaining at $60 per week, to continue after the parties’ older child reached the
age of eighteen. Finally, the trial court ordered appellant incarcerated until he paid the full
amount of the arrearage. The trial court set review hearings. These findings were
memorialized by written order entered on May 18, 2005. Appellant’s motion for temporary
stay and petition for writ of certiorari and habeas corpus were denied by the supreme court
on May 19, 2005. This appeal followed.
For reversal, appellant raises seven points: (1) the trial court violated his dueprocess
rights by imposing incarceration as a penalty for contempt without a specific pleading
requesting this relief; (2) the trial court erred in holding appellant in contempt and
incarcerating him without specific findings of willful disobedience and ability to pay; (3) in
the alternative, the trial court’s implicit findings that appellant had the ability to pay and was
in willful contempt of court were against the preponderance of the evidence; (4) the trial
court’s ruling that appellee was not in violation of the court’s previous order on visitation
was against the weight of credible evidence; (5) the trial court’s refusal to grant appellant
childsupport abatement credit for the visitation he was denied was against the weight of
credible evidence; (6) the trial court’s ruling that appellant’s income was understated was
without evidentiary support; and (7) the trial court’s denial of appellant’s request for a
retroactive reduction in child support was against the weight of credible evidence.
As a preliminary matter, we must determine whether appellant was subject to civil
contempt or criminal contempt. In determining whether a particular action by a judge
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constitutes criminal or civil contempt, the focus is on the character of relief rather than the
nature of the proceeding. Fitzhugh v. State, 296 Ark. 137, 138, 752 S.W.2d 275, 276 (1988).
Because civil contempt is designed to coerce compliance with the court’s order, the civil
contemnor may free himself or herself by complying with the order. See id. at 139, 752
S.W.2d at 276. This is the source of the familiar saying that civil contemnors “carry the keys
of their prison in their own pockets.” Id. at 140, 752 S.W.2d at 277 (quoting Penfield Co. v.
S.E.C., 330 U.S. 585, 593 (1947)). Here, the trial court ordered appellant incarcerated until
he purged himself of the contempt by paying all of the pastdue support, an attorney’s fee,
and costs. This indicates a finding of civil contempt. Another factor indicating that this was
a civil contempt is the fact that the trial court scheduled periodic reviews to determine
whether appellant had the ability to pay. See Alexander v. Alexander, 22 Ark. App. 273, 742
S.W.2d 115 (1987).
Appellant’s first point is that the trial court violated his dueprocess rights by
imposing incarceration as a penalty for contempt without a specific pleading requesting this
relief. We cannot address this issue because it was not made to the trial court. It is
elementary that an issue, even a constitutional issue, must first be raised before the trial
court. Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2002). Here, that was not done.
Because appellant’s second and third points are argued in the alternative, we also
discuss them together. Appellant argues that the trial court erred in holding appellant in
contempt and incarcerating him without specific findings of willful disobedience and ability
to pay or, in the alternative, the trial court’s implicit findings that appellant had the ability
to pay and was in willful contempt of court were against the preponderance of the evidence.
Our standard of review for civil contempt is whether the finding of the circuit court is clearly
against the preponderance of the evidence. See Omni Holding & Dev. Corp. v. 3D.S.A., Inc.,
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356 Ark. 440, 156 S.W.3d 228 (2004); Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761
(1991).
Our supreme court has held that the failure of the trial court to state its findings of fact
and conclusions of law does not render a contempt order void. Widmer v. State, 243 Ark.
952, 422 S.W.2d 881 (1968); Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967).
Appellant cites Whitworth v. Whitworth, 331 Ark. 461, 961 S.W.2d 768 (1998), in support
of his argument. There, the trial court never made a finding on the issue, nor was it asked to
do so. Instead, the trial court simply ordered Whitworth “incarcerated until such time as he
purges himself of paying the [wife’s house payments, onehalf of the value of husband’s
business, and reimbursement for insurance premiums].” 331 Ark. at 465, 961 S.W.2d at 770.
The supreme court remanded the case to the trial court for its findings on Whitworth’s ability
to pay. Whitworth does not apply in this case because, here, the trial court, in its written
order, specifically found appellant in contempt. Further, the trial court implicitly found that
appellant had the ability to pay the support when it imputed income of $250 per week to
appellant.
We cannot say that the trial court was clearly erroneous in its finding that appellant
had the ability to pay and willfully failed to do so. We affirm on these points.
In his fourth point, appellant argues that the trial court erred in not finding appellee
in contempt for violating the visitation provisions of the decree. The standard of review
where the trial court has refused to punish a contemnor is abuse of discretion. See Jones v.
Jones, 320 Ark. 449, 898 S.W.2d 23 (1995); Gerot v. Gerot, 76 Ark. App. 138, 61 S.W.3d
890 (2001). Appellee’s testimony is contradictory because she testified that she never denied
appellant his extended visitation, stating that appellant never asked for the visitation.
However, she also admitted that there was some interference in that she scheduled the
children to work during appellant’s visitation. The trial court specifically found that
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appellant’s testimony that appellee denied him visitation was not credible. It is the province
of the trier of fact to determine the credibility of the witnesses and resolve any conflicting
testimony. Crismon v. Crismon, 72 Ark. App. 116, 34 S.W.3d 763 (2000); Shoptaw v.
Shoptaw, 27 Ark. App. 140, 767 S.W.2d 534 (1989). Since the question of preponderance
of the evidence turns largely on the credibility of the witnesses, we defer to the superior
position of the trial court. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). We
affirm on this point.
In appellant’s fifth point, he contends that the trial court erred in not allowing a total
abatement of child support for periods when he had visitation with the children in excess of
seven days. First, Section VI of Administrative Order No. 10 provides that, before there can
be an abatement, the extended period must be at least fourteen days, not seven. Second, that
same section provides that any abatement should not exceed 50% of the support obligation.
Third, the terms of Section VI provide that the trial court “may” prorate any reduction. See
Guest v. San Pedro, 70 Ark. App. 389, 19 S.W.3d 62 (2000). Under these circumstances, we
cannot say that the trial court abused its discretion in denying the abatement.
Because appellant argues his sixth and seventh points together, we do likewise. In
those points, appellant contends that there is no evidentiary support for the trial court’s ruling
that appellant understated his income and that the trial court’s denial of a retroactive
reduction in child support was against the weight of the evidence. Our standard of review for
an appeal from a childsupport order is de novo on the record, and we will not reverse a
finding of fact by the circuit court unless it is clearly erroneous. McWhorter v. McWhorter,
346 Ark. 475, 58 S.W.3d 840 (2001).
The trial court was not in error. According to appellant’s Exhibit 3, his net income is
$757 per month. The childsupport guidelines for that level of income with two children
provide for an obligation of $262 per month. Appellant’s current support obligation is in line
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with that amount ($60/week x 4.334 weeks = $260.04/month). It is unclear from the record
whether the issue of the amount of child support for one child is ripe for decision.
Documents in the record indicate that Jared will not turn eighteen until June 2006. However,
both parties testified that Jared turned eighteen in June 2005. Arkansas Code Annotated
section 914237(b) (Supp. 2005) discusses how to calculate the obligor’s remaining
obligation after a child turns eighteen.
Affirmed.
GLADWIN and GRIFFEN, JJ., agree.
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