FROM THE GARLAND COUNTY CIRCUIT COURT [NO. DR-2006-36-II]
HONORABLE WADE NARAMORE, JUDGE
Crawford Law Firm, by: Michael H. Crawford, for appellant.
Howard & Sherry L Daves, Attorneys at Law, P.A., by: John
Howard, for appellee.
W. GRUBER, Judge.
case arises out of the 2008 divorce proceedings between
Curtis Balcom and Lisa Balcom (Crain). While the case was
pending, the parties entered into a mediated property
settlement agreement requiring Mr. Balcom to make certain
payments to Ms. Crain. In 2015, the court entered an order
finding Mr. Balcom in contempt for failing to make his
contractually obligated payments. He appeals, arguing that
the trial court was without authority to modify the
parties' agreement and that it erred in holding him in
civil contempt. We find no error and affirm the court's
April 9, 2008, the parties were divorced pursuant to a
divorce decree. The parties' mediated property settlement
agreement was accepted by the Garland County Circuit Court
and incorporated into the decree. Among other things, the
agreement provided that Mr. Balcom would pay Ms. Crain a sum
of $200, 000, and in exchange she would forgo her interest in
a family-owned business owned by Mr. Balcom's family. The
parties agreed that Mr. Balcom would make an initial $50, 000
payment to Ms. Crain, then make payments in the amount of $1,
123.60 per month through March 1, 2015, with the remaining
balance due in a balloon payment on April 1, 2015. The
parties also agreed that he would obtain a life insurance
policy in the amount of $150, 000 to secure the amount owed
to Ms. Crain. Mr. Balcom paid the initial $50, 000 and made a
total of twenty monthly payments to Ms. Crain before ceasing
payments entirely. Between 2010 and 2014, the court found Mr.
Balcom in contempt on four separate occasions for failing to
make his contractually obligated payments to Ms. Crain. On
one such occasion, the court converted the payments to
alimony, which neither party appealed.
hearing on the fifth contempt action against him, Mr. Balcom
admitted that he owed the debt but claimed that he was
without the financial means to make the payments. He
testified that he "would like to pay $400.00 a month[, ]
which is over and above the $344 I have been paying for child
support. I am not saying pay $400 a month in addition"
to the child support. He requested that the court
"direct" him to "pay Ms. Crain $400.00 per
the hearing, the court entered judgment against Mr. Balcom
and ordered him to make alimony payments in 180 equal monthly
payments of $976.97. The court also ordered him to obtain a
life insurance policy in the amount of $100, 000. The court
further ordered that if at any point in time he failed to pay
"an amount equal to two (2) monthly payments, or more,
an order of arrest shall immediately issue upon the verified
motion of [Ms. Crain] with a cash bond being set in the
amount of the unpaid arrearages."
Balcom's first, second, and third points on appeal go to
the court's authority to modify the agreement. He
contends that his obligations to Ms. Crain were
"contractual in nature" and therefore the court did
not have authority to modify those obligations. He argues
that the court "could only award Ms. Crain a judgment on
the contract" or find him in contempt for "not
performing his end of the bargain" but the court could
not "rewrite the terms of the agreement."
elementary that this court will not consider arguments that
are not preserved for appellate review. Stacks v.
Stacks, 2009 Ark.App. 862, at 4, 377 S.W.3d 265, 269. We
will not do so because it is incumbent upon the parties to
raise arguments initially to the trial court in order to give
that court an opportunity to consider them. Id.
Otherwise, we would be placed in the position of reversing a
trial court for reasons not addressed by that court.
Id. Mr. Balcom did not make his arguments regarding
authority to modify the agreement to the trial court.
Instead, at the hearing, he specifically requested that the
court modify the agreement by allowing him to pay $400 per
month in lieu of the required $1, 123.60 payment. Because he
failed to raise his arguments to the trial court, we will not
address them for the first time on appeal.
fourth point on appeal, Mr. Balcom argues that, because he
was not in "willful contempt" of the decree, the
court erred in holding him in civil contempt. Disobedience of
any valid judgment, order, or decree of a court having
jurisdiction to enter it may constitute contempt, and
punishment for such contempt is an inherent power of the
court. Brock v. Eubanks, 102 Ark.App. 165, 288
S.W.3d 272 (2008). Contempt is categorized into criminal
contempt and civil contempt. Shields v. Kimble, 2016
Ark.App. 151, at 9, ___ S.W.3d ___, . ___ The distinction
between relief that is civil in nature and relief that is
criminal in nature has repeatedly been stated and followed by
our appellate courts. Fitzhugh v. State, 296 Ark.
137, 752 S.W.2d 275 (1988). An unconditional penalty is
criminal in nature because it is solely and exclusively
punitive in character. Id. A conditional penalty, by
contrast, is civil because it is specifically designed to
compel the doing of some act. Id. 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. Applegate v.
Applegate, 101 Ark.App. 289, 293, 275 S.W.3d 682, 685
(2008). This is the source of the familiar refrain that civil
contemnors "carry the keys of their prison in their own
pockets." Id. at 293, 275 S.W.3d at 685(quoting
Penfield Co. v. S.E.C., 330 U.S. 585, 593 (1947)).
Civil contempt protects the rights of private parties by
compelling compliance with orders of the court made for the
benefit of private parties. Shields, 2016 Ark.App.
151, at 9, ___ S.W.3d at ___ . Civil contempt can be
either compensatory or coercive in nature. Id. In
order to establish civil contempt, there must be willful
disobedience of a valid court order. Fowler v.
Hendrix, 2016 Ark.App. 7, at 5, 479 S.W.3d 591, 594.
Lack of ability to pay is a defense in civil-contempt cases.
Ivy v. Keith, 351 Ark. 269, 284, 92 S.W.3d 671, 680
not reverse a circuit court's finding of civil contempt
unless that finding is clearly against the preponderance of
the evidence. Fowler, 2016 Ark.App. 7, at 5, 479
S.W.3d at 594. A finding is clearly against the preponderance
of the evidence if, although there is evidence to support it,
the reviewing court on the entire evidence is left with a
firm conviction that a mistake has been committed. Catt
v. Catt, 2014 Ark.App. 616, at 2. Issues of credibility
are for the fact-finder. Id. Here, although Mr.
Balcom testified that he was without sufficient financial
means to make the payments, there was evidence that he was
regularly employed and additionally that he received tax
refunds and sold various vehicles but never used any of the
proceeds to make payments toward his obligation. We hold that
the court's order was not clearly against the
preponderance of the evidence.
Gladwin, C.J., agrees.
Michael Kinard, ...