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Smyth v. Smyth

Court of Appeals of Arkansas, Division III

January 16, 2019



          Tripcony, May & Associates, by: Heather M. May; and Crouch, Harwell, Fryar & Fender, PLLC, by: Steven S. Zega, for appellant.

          Taylor Law Partners, LLP, by: Scott E. Smith, for appellee.


         Appellant Janet Smyth appeals the Washington County Circuit Court's dismissal of her petition for contempt against her ex-husband, appellee James Smyth, for failure to mediate and to mediate in good faith. Janet presents seven points on appeal. She contends the circuit court (1) erred in finding the parties had not mediated and therefore erred in granting James's motion to dismiss on that basis and in denying her motion to reconsider; alternatively, the circuit court erred in finding, as James alleged, that she had not mediated in good faith, in dismissing her motion to modify, and in denying her motion to reconsider on that basis; (2) abused its discretion in dismissing her motion without holding a hearing and in refusing to grant her motion to reconsider when James alleged she did not attend mediation when she alleged she had, thus creating a factual issue; (3) abused its discretion in ordering the parties to attend mediation within ten days or have the case dismissed; (4) abused its discretion in dismissing her case without qualification while dismissing James's case without prejudice; (5) committed plain error in dismissing her entire case when, as James alleged, she had mediated issues that were contained in her contempt motion; (6) erred and abused its discretion in failing to rule on her motions to strike, for clarification, and for reconsideration; and (7) erred in making mediation a prerequisite to filing a motion to modify and for contempt and refusing to grant her motion for reconsideration on that issue, as compelling mediation before bringing a case to court is a violation of article 2, section 13 of the Arkansas Constitution. We reverse and remand.

         History of Pleadings Since Divorce

         The parties were divorced in September 2010. The divorce decree awarded Janet primary custody of the parties' two minor children, with James having reasonable visitation. James was ordered, among other things, to pay alimony and child support; buy Janet out of certain corporate/LLC entities; refinance any debts on which Janet was a guarantor within two years of entry of the divorce decree; be responsible for any marital debt; and maintain a $1, 000, 000 life-insurance policy with Janet as the beneficiary and a disability policy to ensure Janet would receive her monetary payments as ordered under the divorce decree.

         On September 23, 2011, an order was entered concerning visitation issues and the dates of certain payments James was to make to Janet. Additionally, paragraph fourteen of this order stated, "The parties shall submit to mediation prior to filing any future Petitions to Modify this Order or the Decree of Divorce previously filed herein." In an order filed on August 8, 2014, entitled "Final Agreed Order," the parties agreed James would have primary custody of their son (their older child), and the parties would share custody of their daughter, subject to reasonable visitation by both parties. Janet agreed to move back to the Fayetteville area to facilitate the joint custody, and the parties agreed that neither party would pay child support. In addition, paragraph eleven of the final agreed order provided that "should any future disputes between the parties arise that the parties are unable to resolve themselves, the parties shall first make a good faith effort to resolve said dispute in mediation prior to seeking relief in this court." In April 2015, this provision was enforced by the circuit court, as evidenced by its dismissal of Janet's motion for contempt and to modify custody for failure to attend mediation prior to seeking relief from the circuit court.

         In July 2017, mediator Sue Ann Newman filed a letter with the circuit court advising that mediation between James and Janet was held on July 18, 2017; both parties attended and participated in the mediation; but no mediation agreement was executed. On November 17, Janet filed a motion for contempt and modification of child support; an amended motion was filed on December 6. Janet's motion alleged James had continued to make alimony and certain other marital-interest payments late, making only partial payments at times; had not removed her as guarantor on certain marital obligations; had failed to pay certain marital debts; had changed the beneficiary on his insurance policy to his new wife; had let the insurance policy lapse and had replaced it with a new policy with different provisions; had failed to attend parent-teacher conferences with her; had taken their daughter out of state without Janet's prior knowledge; and had failed to pick up their daughter on two occasions. Additionally, Janet asked that child support be ordered for the parties' daughter of whom the parties shared joint custody (their son had reached the age of majority by this time); requested that a protective order regarding James's financial information be lifted; and asked that visitation be updated to the current Washington County standard visitation schedule with modifications to reflect the joint-custody arrangement. In her motion, Janet acknowledged the parties were required to attend mediation prior to filing any modification actions and noted mediation had been completed in the summer of 2017, and the mediator had notified the circuit court via letter of the attempt at mediation.

         In his answer, James asserted that Janet had "willfully, intentionally and maliciously violated the orders of this Court . . . by failing and refusing to go to mediation prior to filing her present cause of action." James further alleged Janet was attempting to relitigate matters that had been fully and completely resolved pursuant to the July 2014 final agreed order. James denied Janet's allegations and further stated Janet had "knowingly and intentionally refused to seek mediation regarding her claims of child support prior to filing her Motion in this matter in a knowing, willful and malicious violation of paragraph 11 of the Final Agreed Order entered in this case," and he requested that the circuit court dismiss her child-support claim for this reason. He further alleged Janet had failed to raise any concerns during mediation about his attendance at parent-teacher conferences, in violation of the requirement that the parties mediate prior to coming to court. James also stated Janet's allegation that he had taken the parties' daughter out of state without Janet's knowledge was made in bad faith and without any merit or justification, and Janet had "failed and refused to seek mediation" on this issue prior to filing her motion for contempt. James denied Janet had presented all issues to mediation prior to filing her motion for contempt in the circuit court and further denied that Janet had complied with the requirement to attend mediation as directed. He asked the circuit court to deny and dismiss Janet's contempt motion and to award him costs and attorney's fees.

         At this time, James filed a counterpetition for contempt against Janet, noting the circuit court required the parties to attend mediation prior to seeking any relief from the circuit court; Janet had previously ignored the requirement to mediate, which resulted in the dismissal of her prior motion for contempt in April 2015; and Janet had again ignored the mediation requirement when she filed her latest motion for contempt without first seeking mediation on several matters raised in her motion-specifically an award of child support, James's failure to attend parent-teacher conferences, taking the parties' daughter out of state without her prior knowledge, requesting the protective order be lifted, and transportation requirements. James acknowledged the parties had mediated on two separate occasions-once in the summer of 2015 and most recently in July 2017. However, he asserted a March 31, 2017 letter from Janet's counsel had limited the issues to be mediated to the timing of alimony payments, the release of Janet as guarantor on certain real property, and conditions related to his procurement of life insurance. He further acknowledged that just before mediation, Janet's counsel provided a second document confirming the issues to be raised at mediation and adding two additional issues-paying a marital credit card and adopting the Washington County standard visitation schedule with modifications. James stated no other issues were raised at mediation other than the ones listed above and contended Janet had deliberately chosen not to raise issues in mediation that she now raised in her motion for contempt, in violation of the circuit court's order.

         In reply to James's counterpetition for contempt, Janet alleged she had not refused to attend mediation in 2015 but that the mediation had just not occurred prior to her filing her contempt motion. She further noted that the letter setting out the issues she wished to address in the 2017 mediation also included the statement, "as well as other issues related to the parties," and she claimed the issues pled in her contempt petition were addressed or were attempted to be addressed in that mediation. Janet accused James of not mediating in good faith.

         On January 16, 2018, the trial-court administrator emailed counsel for the parties and stated the circuit court asked that they "attend mediation and it shall be scheduled within 10 days of today" or the case would be dismissed. Counsel conferred with each other and the mediator and advised the circuit court on January 25, 2018-nine days after the circuit court's directive-that mediation had been scheduled for April 11. The trial-court administrator then emailed counsel for the parties and stated the circuit court "asked that this case be mediated within 10 days" or it would be dismissed. Janet's counsel objected, replying in a letter to the circuit court that the parties had been told to schedule the mediation within ten days, not complete the mediation within that time, and she requested a hearing on the matter if the circuit court was going to dismiss the case.

         On January 26, 2018, Janet filed a motion for clarification in which she requested guidance from the circuit court about the parties' mediation requirement. Janet explained she began initiating email exchanges with James in November 2016 to attempt to resolve many of the issues raised in the 2017 mediation, but nothing was resolved, and as a result, she requested mediation. Four months after the July 2017 mediation, Janet filed her contempt motion, and James filed his counterpetition for contempt. Janet asked for the circuit court's assistance in properly interpreting the mediation provision, specifically seeking "more specific rules or guidelines to follow, both in terms of when it is appropriate to seek mediation, and also how best to define good-faith efforts in mediation." Janet questioned if one of the parties believes the other party to be in contempt of a court order if the party is first required to attempt to mediate the issue or to move for contempt, especially if there was no real remedy to the contempt other than punishment by the circuit court; if mediation had occurred and a new dispute arises, did the parties have to mediate again; was showing up for mediation considered "good faith," as she believed all issues had been mediated but James alleged that not all issues were discussed; and when was a matter deemed mediated when that matter is part of a major topic that has been declined before it can even be ...

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