Whitworth v. Whitworth

Clarence WHITWORTH v. Mary L. WHITWORTH
(Strickland)

97-575                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 19, 1998


1.   Appeal & error -- relevant orders must be abstracted. -- All
     relevant orders entered by the trial judge are to be
     abstracted.

2.   Appeal & error -- neither divorce decree nor order abstracted
     -- issues raised not reached. -- Where neither party
     abstracted the divorce decree and order the supreme court was
     unable to consider appellant's arguments regarding whether his
     house or other payments under the parties' divorce decree were
     enforceable as child-support obligations, as opposed to
     determining if these payments merely evidenced a property
     decision of the parties' assets.

3.   Divorce -- appellant claimed no proof presented that he had
     present ability to make payments under decree -- none of
     monies obtained by appellant went to pay obligation to
     appellee. -- Appellant asserted that even if the payments in
     the parties' agreement and decree were in the nature of child
     support, the evidence failed to show that he had the present
     ability to pay them; however, there was testimony on
     appellant's ability to pay and evidence that none of the money
     he obtained, the precise amount of which was unclear, went to
     pay any portion of his obligation to appellee.
   
4.   Divorce -- ability to pay issue never reached below -- matter
     remanded for finding on issue. -- While appellant's abstract
     did include his and his ex-wife's testimony bearing on
     appellant's ability to pay, the trial court never made a
     finding on the issue, nor was it asked to do so; appellant's
     own testimony on this question was not clearly understandable;
     because credibility and demeanor are important factors in
     deciding this case, the supreme court remanded it, instructing
     the trial court to make its finding and ruling on appellant's
     ability or lack of ability to pay.


     Appeal from Faulkner Chancery Court; Michael L. Murphy,
Special Chancellor; remanded.
     Phil Stratton, for appellant.
     Boyd Tackett, Jr., for appellee.

     Tom Glaze, Justice.
     Clarence Whitworth brings this appeal from the lower court's
February 11, 1997 order, finding him in contempt for failing to pay
(1) his former wife's (now Mary L. Strickland) house payments in
the amount of $5,436.00, (2) her one-half share of Whitworth's
business in the sum of $6,705.00, and (3) her reimbursement of
medical insurance premiums in the amount of $1,454.00.  The court
ordered Whitworth incarcerated until he made the foregoing
payments, but held his incarceration in abeyance for 60 days. 
Whitworth filed a notice of appeal before that 60-day period
expired.
     For reversal, Whitworth argues the payments found due
Strickland were merely debts and not child support, and he claims
that, under Article 2,  16, of the Arkansas Constitution, he
cannot be imprisoned for such debts.  Whitworth also asserts that,
even if the arrearages in house payments were in lieu of child
support, he still should not be incarcerated because there was no
evidence that he had the present ability to pay the amounts the
trial court ordered paid.  In addition, Whitworth argues that the
trial court reduced the house and other payments to judgment, and
under Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1973), the
trial court lost its power to enforce such judgments by contempt
proceedings.
     First, we mention that, although Whitworth has abstracted the
essential part of the trial court's contempt order from which he
appeals, he did not make the parties' 1990 divorce decree a part of
the record, much less abstract it, on appeal.  Nor did he favor us
with a June 17, 1993 order which had previously been entered as a
result of an earlier contempt proceeding between him and
Strickland.  This court has repeatedly held that all relevant
orders entered by the trial judge are to be abstracted.  Pulaski
County Child Supp. Enforcement v. Norem, 328 Ark. 546, 944 S.W.2d 846 (1997); Davis v. Wingfield, 297 Ark. 57, 759 S.W.2d 219 (1988). 
     What is troublesome about not having the aforementioned decree
and order is Whitworth's claim that he is not subject to contempt
for failure to pay the debts owed Strickland because those debts
are simply civil debts that are enforceable at law.  If, however,
the debts ordered paid are ones in the nature of support or
maintenance, Strickland could enforce such debt payments by
contempt proceedings, assuming Whitworth had the ability to pay but
had willfully refused to make such payments.  See Gatlin v. Gatlin,
306 Ark. 146, 811 S.W.2d 761 (1991); Barker v. Barker, 271 Ark.
956, 611 S.W.2d 787 (Ark. App. 1981).  
     Since we do not have the parties' 1990 divorce decree or its
directives before us, we are left only with testimony such as that
given by Strickland, asserting Whitworth had been ordered to pay
"shelter costs in lieu of child support."  However, Whitworth
countered Strickland's remarks at the hearing below with his
counsel's own comments and arguments.  For example, counsel, when
discussing the making of house payments, said, "there's a decree,
and it's self-evident," and later defense counsel related the house
payments were "not in lieu of child support."  Whitworth's counsel
further argued below that Strickland had obtained money judgments
against Whitworth and "she should stand in line with other
creditors."  Strickland's counsel further responded in disagreement
with Whitworth by referring to paragraph 3 of the divorce decree,
stating Whitworth would be responsible for making house payments
until the youngest child reached eighteen years old.  The trial
court, too, referred purportedly to the divorce decree and
subsequent June 1993 order when discussing the value of Whitworth's
business and Strickland's ownership interest in it.
     In sum, while the trial court and respective parties at the
hearing below seemed to have a working knowledge and understanding
of the parties' earlier 1990 divorce decree and 1993 order, neither
party has abstracted those orders for us to see and consider.  In
fact, Whitworth's notice of appeal and designation of the record
limited the appeal transcript to "All pleadings and orders filed on
or after September 12, 1996, and of all proceedings from and after
October 29, 1996."  As a consequence, we are unable to consider
Whitworth's arguments regarding whether his house or other payments
under the parties' divorce decree are enforceable as child-support
obligations, as opposed to determining if these payments merely
evidenced a property decision of the parties' assets.  Nor do we
consider whether Strickland's action should have been filed in a
court of law rather than in equity, since we do not have the
pleadings or decree to decide that issue.
     Whitworth does make an alternative argument we can discuss,
and in that argument, he assumes that, even if the payments in the
parties' agreement and decree were in the nature of child support,
the evidence presented below failed to show he had the present
ability to pay them.  This being so, he asserts the trial court was
unable to hold him in civil contempt for failing to make the
payments.  Whitworth relies in part on Godwin v. Godwin, 268 Ark.
364, 596 S.W.2d 695 (1980), where the court stated that
imprisonment for disobedience of an order to pay a sum into the
court, without finding the party was able to pay the sum, is
imprisonment for debt in violation of Article II of the Arkansas
Constitution.  
     While Whitworth's abstract does include his and Strickland's 
testimony bearing on Whitworth's ability to pay, 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 aforementioned
amounts."  Whitworth's own testimony on this question proved
problematical on the issue.  For instance, Whitworth said that he
could make no payments because he earned only $320.00 (and netted
$120.00) per week while working for a construction company owned by
T. L. Fortenberry.  Whitworth then said he had "sold" his own
company's backhoe for $9,000.00, and those proceeds went entirely
to pay an IRS obligation.  Later, however, he indicated that he had
"borrowed" $9,000.00 to $15,000.00 from Fortenberry, and
subsequently gave Fortenberry the backhoe because Whitworth could
not pay off the loan.  In any event, none of the monies Whitworth
obtained, whether the amount was $9,000.00 or $15,000.00, went to
pay any portion of the obligation that he owed Strickland under
their decree.
     Because credibility and demeanor are important factors in
deciding this case, we remand, instructing the trial court to make
its finding and ruling on Whitworth's ability or lack of ability to
pay in this matter.  See Gould v. Gould, 308 Ark. 213, 823 S.W.2d 890 (1992).  In remanding, the trial court may take additional
evidence on the ability-to-pay issue, but the parties shall not be
permitted to raise again those issues raised but not consummated in
this appeal or introduce issues that could have been raised and
litigated in this case.