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Stibich v. Stibich

Court of Appeals of Arkansas, Division II

May 4, 2016

KIMBERLY STIBICH, APPELLANT
v.
ADAM STIBICH, APPELLEE

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. DR-207-457] HONORABLE RUSSELL ROGERS, JUDGE.

Kimberly Stibich, pro se appellant.

Stephanie Chamberlin PA, by: Stephanie Chamberlin, for appellee.

CLIFF HOOFMAN, JUDGE.

This is a domestic-relations case involving former spouses, Kimberly Stibich and Adam Stibich.[1] This appeal follows particularly contentious postdecree litigation. In total, the circuit court presided over twenty days of trial and more than 200 motions, countermotions, and various other requests for relief. On appeal, Kimberly challenges several of the circuit court's decisions relating to custody, child support, property division, and the award of attorney's fees. We affirm in part and reverse and remand in part.

I. Facts

Kimberly and Adam married in May 1998 after entering into a prenuptial agreement. Two children were born of the marriage; S.S. on October 28, 2003, and A.S. on September 6, 2006.

In May 2007, Kimberly filed for divorce from Adam. In September 2009, the circuit court entered a decree of divorce awarding custody of the parties' children to Kimberly. The decree also required Adam to pay temporary child support in the amount of $10, 000 per month until the circuit court could make a final ruling regarding the amount of child support he was obligated to pay.[2] This decree did not dispose of the parties' property and debt issues. Adam filed an interlocutory appeal of the circuit court's custody ruling pursuant to Arkansas Rule of Appellate Procedure–Civil 2(d), and this court affirmed.[3] See Stibich v. Stibich, 2011 Ark.App. 308, 378 S.W.3d 906.

Following this court's decision on the interlocutory appeal, the parties began litigating a litany of issues. This impetus for the renewed litigation came from Adam's filing of a motion for contempt, a motion for psychological evaluation, a motion to change custody, and a motion to reduce his child-support obligation four days after the entry of the circuit court's November 30, 2009 supplemental decree. Additionally, the circuit court had yet to dispose of all of the parties' property and debt.

The litigation that followed was lengthy and difficult and focused primarily on issues related to the custody of the parties' children, child support, and the distribution of marital property. Ultimately, the circuit court entered a thorough and exhaustive final order wherein it undoubtedly put forth great effort to ensure that it provided this court with a clear understanding of its decisions and a final order that fully disposed of all pending issues. In it, the circuit court awarded the parties joint custody, retroactively reduced Adam's child support to $8, 047 per month, found that Adam owed Kimberly for child-support arrearages, terminated Adam's current child-support obligation, fully disposed of the parties' marital property issues, and awarded Adam $15, 000 in attorney's fees. This timely appeal by Kimberly followed.

Kimberly raises several arguments on appeal. Kimberly contends that the circuit court erred (1) by awarding the parties joint custody of their two children, (2) by terminating Adam's child-support obligation upon the award of joint custody, (3) by deciding to offset money Adam owed her for child-support arrearages with money she owed him, (4) by requiring her to reimburse Adam for payments he made on behalf of the parties from 2007 to 2009, and (5) by awarding Adam $15, 000 in attorney's fees.

II. Custody and Child Support

For her first point on appeal, Kimberly challenges the circuit court's decision to modify its previous custody decision and award the parties joint legal custody of their two minor children. This court performs a de novo review of child-custody matters, but we will not reverse a circuit court's findings unless they are clearly erroneous. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Smith v. Parker, 67 Ark.App. 221, 998 S.W.2d 1 (1999). We recognize and give special deference to the superior position of a circuit court to evaluate the witnesses, their testimony, and the child's best interest. Sharp v. Keeler, 99 Ark.App. 42, 256 S.W.3d 528 (2007). For a circuit court to change custody of children, it must first determine that a material change in circumstances has transpired from the time of the divorce decree and then determine that a change in custody is in the best interest of the children. Lewellyn v. Lewellyn, 351 Ark. 346, 355, 93 S.W.3d 681, 686 (2002).

First, we consider whether the court erred in determining there had been a material change in circumstances to warrant a change in custody. In concluding that there had been a material change in circumstances, the circuit court indicated that its main consideration was Kimberly's "overall lack of judgment subsequent to the divorce." In its ...


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