FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23DR-11-1046]
HONORABLE H.G. FOSTER, JUDGE
& Co., PLLC, by: Tim J. Cullen, for appellant.
A. Newcomb, for appellee.
WAYMONDM. BROWN, JUDGE.
an interlocutory appeal challenging the Faulkner County
Circuit Court's order finding Terry Wyatt in civil
contempt. The contempt finding stems from Terry's failure
to comply with the circuit court's January 2016 order in
his divorce from his ex-wife Lorene. The primary inquiry on
appeal is whether the circuit court erred by finding that
Terry had the ability to pay or make a credible attempt to
pay the judgment awarded to Lorene. We affirm.
Faulkner County Circuit Court entered an order and judgment
in Lorene and Terry's divorce action in January 2016. The
order awarded Lorene a substantial judgment against Terry,
and one month after entry of the order, Lorene filed a motion
for contempt. She asked that Terry be held in civil contempt
and jailed until he complied with the circuit court's
order. Terry resisted Lorene's motion arguing that he was
not in willful contempt because he lacked the means or
ability to comply with the order.
31, 2016, the circuit court held a hearing on Lorene's
motion for contempt. Also addressed was Terry's request
for a waiver of the requirement for a supersedeas bond. At
the hearing, it was established that Terry had not paid any
alimony, had not paid any money toward the judgment entered
against him, and was paying child support in the amount
previously ordered by the circuit court and not his current
obligation-$136 a week instead of the ordered $443 a week.
Thus, it became Terry's burden to prove that he was
unable to comply with the terms of the January 2016 order.
Because the primary issue on appeal is whether Terry had the
ability to pay is fact-intensive, a detailed synopsis of the
evidence presented at the May 31 hearing is necessary.
testified that he worked for A-1 Recovery Towing &
Recovery, Inc., which was owned by Gerald Kennon, through
August 2016. At that time, he began working for Cenark
Construction, a company owned by his sons. He worked for
Cenark Construction until February 2017, and he has been
self-employed since that date. Additionally, Terry testified
at length that he was unable to pay the judgment against him.
He stated that he has no real property, cannot get a bond,
and has numerous creditors, including the IRS.
contrast, the evidence demonstrated that Terry continued to
live a lifestyle comparable to the one he enjoyed prior to
the divorce. He lived at 56 Wyatt Lane-the house he lived in
during the divorce proceedings. Although he stated that his
sons live with him and pay the rent. He also drove the same
vehicle, but he claimed Gerald Kennon owned the vehicle and
paid the insurance and tags on it and that he paid the $794
monthly payment. Additionally, Terry took a ski vacation; he
testified that his sons paid for the vacation.
was also elicited that Terry had paid $25, 000 to appeal the
circuit court's January 2016 order. Terry said he
borrowed this money from his sister. In addition, $175, 000
was paid to settle Terry's bankruptcy proceeding. The
language in the order provided that the debtor shall pay to
receive a discharge. However, Terry and Gerald Kennon
testified that it was Gerald who paid the $175, 000 and not
relevant evidence included the disclosure that Amanda
Mauser-an employee of his sons' corporations-was
performing the task of mailing his weekly child-support
payments and doing other personal business for him, including
his tax returns. Terry testified that Mauser was not his
employee and that he did not pay her.
also admitted that 56 Wyatt Lane was searched by law
enforcement and $20, 000 cash was found in a safe. This money
came from the sale of an excavator that a corporation owned.
Terry admitted that he had the check made payable to him
personally and then cashed it because the corporation had
numerous judgments against it and he wanted to receive the
benefit of the sale.
conclusion of the hearing, the circuit court announced from
the bench that Terry was in contempt of court. In its
announcement, the circuit court made clear that Terry lacked
credibility, and it emphasized that Terry continued to
maintain the lifestyle he had prior to the divorce. The
circuit court found that he had neither complied with the
January 2016 order nor made substantial efforts toward
attempting to comply despite having the means to do so.
Additionally, the circuit court ordered that no stay would be
granted unless Terry posted a $600, 000 supersedeas bond.
initial contempt order was signed on May 31, 2016, and was
electronically filed the following day. The stated purpose of
this order was to facilitate Terry's commitment to the
jail, and the order provided that Lorene's counsel was to
prepare a more detailed order. A ...