APPEAL
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04DR-16-2037]
HONORABLE BRAD KARREN, JUDGE.
Smith,
Cohen & Horan, PLC, by: Matthew T. Horan; and Ralph C.
Williams, for appellant.
Cullen
& Co., PLLC, by: Tim Cullen, for appellee.
RITA
W. GRUBER, Chief Judge.
The
parties in this case, Jill Grimsley and Pine Drewyor, were
divorced by decree entered February 2, 2018, after a
sixteen-year marriage. Ms. Grimsley appeals from the divorce
decree and a postdecree order, arguing that the circuit court
erred (1) by awarding joint custody; (2) by awarding
permanent alimony to Mr. Drewyor, who has "ample
capacity for self-support"; (3) in the amount of alimony
awarded; (4) by awarding Mr. Drewyor a one-half interest in
Ms. Grimsley's partnership interest; (5) in its treatment
of certain marital debt; and (6) in requiring Ms. Grimsley to
make a one-time payment of $1.25 million in child support to
Mr. Drewyor constituting 25 percent of a five-million-dollar
inheritance from her father. We affirm in part and reverse in
part.
I.
Facts and Procedural History
The
parties married in April 2002 when they were both practicing
law in Tulsa, Oklahoma. A year after their first child was
born in June 2006, the parties moved to Northwest Arkansas to
be near Ms. Grimsley's family. Ms. Grimsley accepted an
offer from Mitchell Williams in 2007; five years later, she
became a nonequity partner; and in January 2016, she became
an equity partner. Mr. Drewyor began a solo practice in 2007
and continues to practice as Drewyor Law Firm, PLC. The
parties have three children, two daughters and one son, who
were eleven, eight, and five at the time the divorce decree
was entered.
A.
Divorce
Mr.
Drewyor filed a complaint for divorce in December 2016, and
Ms. Grimsley moved out of the marital home and into her
mother's home in April 2017. On April 28, 2017, the
circuit court executed an agreed temporary order
incorporating a handwritten settlement agreement that
provided the children would spend alternate weeks with each
parent, Tuesday nights until 8:00 p.m. with the noncustodial
parent, and an afternoon each week with Ms. Grimsley's
mother, "Grand." Ms. Grimsley agreed to continue to
pay child care and the mortgage, taxes, and home insurance on
the marital home; Mr. Drewyor agreed to pay the utilities,
cleaning, and yard maintenance while he lived in the marital
home.
The
circuit court conducted a final hearing on custody, child
support, alimony, and several property and debt-division
issues on November 20 and 21, 2017, and entered a final
decree of divorce on February 2, 2018. The court awarded
joint custody, continuing the schedule to which the parties
had agreed in the temporary settlement agreement of alternate
weeks, Tuesday evenings with the parent not having physical
custody that week, holidays as set forth in the court's
suggested standard-visitation schedule, and ten consecutive,
uninterrupted days during summer break with each parent upon
thirty days' notice to the other parent. The court
ordered that each parent had the right of first refusal to
provide care for the children before seeking a third party
and that Grand had the right to provide care for the children
if neither parent was available before seeking a third party.
The court ordered Ms. Grimsley to pay child support to Mr.
Drewyor in the amount of $1349 "due to the discrepancy
in the net earnings of the parties." The court also
ordered both parties to "pay an additional amount equal
to 25% of any net bonus, income, payment, tax refund or any
other funds received as defined by Administrative Order No.
10, as additional child support." Ms. Grimsley was
ordered to maintain medical insurance for the children, and
the parties were ordered to each pay one-half for medical,
psychological, dental, optical, and any other healthcare
expenses not covered by insurance. Mr. Drewyor was also
awarded permanent alimony of $3787 per month. Finding that
they were marital property, the court divided equally Ms.
Grimsley's Mitchell Williams partnership interest valued
at $50, 500, her "drawing account" valued at $77,
000, and Mr. Drewyor's law-firm assets valued at $8, 000.
Finally, the court found that an Arvest line of credit used
by Mr. Drewyor was his sole and separate obligation, and it
ordered Mr. Drewyor to reimburse Ms. Grimsley the sum of $30,
370 that she had paid to extinguish the loan. However, a
Generations Bank line of credit in the amount of $25, 000 was
found by the court to constitute marital debt and the court
required each party to pay half.
B.
Postdivorce
Less
than six months after entry of the divorce decree, Mr.
Drewyor filed a petition for citation for contempt, alleging
that Ms. Grimsley had received an inheritance valued at $5
million in December 2017;[1] that the court's February 2018 decree
of divorce and our supreme court's opinion in Ford v.
Ford, 347 Ark. 485, 65 S.W.3d 432 (2002), required her
to pay 25 percent of that inheritance to him as child
support; and that she should be held in contempt for failing
to do so.
Ms.
Grimsley responded to the petition, denying that she had
received any payments or funds in December 2017; stating that
she had received a distribution of unregistered, restricted
shares of Grand Savings Bank, a closely held corporation, in
2017; arguing that Ford does not support the payment
of child support from a transfer of personalty or realty to a
joint-custodial parent who is already receiving adequate
support; and alleging that Mr. Drewyor had not shown that a
transfer of $1.25 million to him was in the children's
best interest. She argued that Administrative Order No. 10 is
premised on the payee's having sole custody and that the
amount of child support must be in the best interest of the
children, not the payee.
On
September 17, 2018, the court held a hearing on the motion
for contempt. Ms. Grimsley testified that she had received an
inheritance worth approximately $5 million, though none of it
had been in cash. First, in December 2017, she received a
stock certificate representing 296, 991 shares of Grand
Bancorp, Inc., valued at approximately $2.8 million. She
testified that the stock was restricted and must be sold to
"accredited investors." Second, in March 2018, she
received an investment account worth $1, 869, 000. Finally,
in June 2018, she received a warranty deed for a lot worth
approximately $150, 000. She said that she had received no
money in any of these three transfers. She also testified
that the investments would need to be liquidated before she
could remove any money from the investment account. While she
assumed that she could direct a liquidation of the account,
she had never done so and had not intended to do so. She also
responded to questions regarding the sale of her lot,
indicating that she could attempt to sell the lot but then
she would not have a home.
Counsel
for Mr. Drewyor argued that the set percentage of 25 percent
of any additional income was res judicata pursuant to
paragraph 14 of the court's decree of divorce and could
not be relitigated and that, consequently, Ms. Grimsley owed
child support in the amount of $1.25 million, 25 percent of
her inheritance. He urged the court to reject Ms.
Grimsley's request for a deviation from the 25 percent
arguing that the parties were bound both by paragraph 14 of
the court's order dictating 25 percent of income and by
the supreme court's opinion in Ford interpreting
income broadly to include an inheritance. He also claimed
that Administrative Order No. 10 put no "cap" on
child support; Ms. Grimsley was obligated to pay Mr. Drewyor
25 percent of her inheritance as child support whether it be
$10, 000 or $5 million; and she was in contempt for failing
to have done so. He rejected Ms. Grimsley's argument that
because the inheritance was not in funds or money, she was
not obligated to pay child support from it. He argued that
she could sell the property and have cash within thirty days
or "faster."
Ms.
Grimsley argued that the holding in Ford does not
support Mr. Drewyor's argument and that a payor is not
required to "liquidate" physical assets that have
been given to him or her to pay child support. She contended
that Ford concerned a situation in which a
noncustodial parent was not working at all and therefore was
not paying any child support. In such a situation, the court
allowed child support to be paid from other assets or income
of the payor. She also argued that the court must determine
what is an appropriate amount of child support for the
parties' children. She contended that Ford does
not hold that a payee is automatically entitled to a
particular percentage of a lump-sum gift to the payor.
Finally, she argued that the court in this case had already
ordered an appropriate level of child support with knowledge
that she was going to inherit $5 million.[2] At the close of the
hearing, the court found there was good cause for Ms.
Grimsley's failure to pay child support from her
inheritance because the transactions had not been
"liquidated"; thus, she was not in contempt.
The
court entered an order on October 10, 2018, denying the
petition for contempt, enjoining Ms. Grimsley from
liquidating or transferring any of the inherited assets, and
reserving its ruling as to a "sum certain concerning the
three transactions" constituting her inheritance. Mr.
Drewyor filed a motion for reconsideration, requesting the
court to compel Ms. Grimsley to comply with paragraph 14 of
the divorce decree and pay 25 percent of her inheritance even
though her failure to pay may not have been willful. He
argued that the obligation to pay child support from the
inheritance attached immediately upon her receipt of the
assets and explained that she would not be required to
liquidate the bank stock or the lot because there were
sufficient assets in the investment account, if sold, to pay
him $1.25 million.
On
October 23, 2018, the court entered an order granting Mr.
Drewyor's motion for reconsideration, finding that Ms.
Grimsley's $5 million inheritance was "subject to
child support" pursuant both to paragraph 14 of its
decree of divorce and Ford v. Ford. The court
ordered her to pay $1.25 million within thirty days of the
October 10 order.[3] Ms. Grimsley filed a timely appeal from
the court's decree of divorce and its order of October
23, ordering her to pay $1.25 million in child support to Mr.
Drewyor.
II.
Points on Appeal
A.
Joint Custody
Ms.
Grimsley's first point on appeal is that the circuit
court erred in awarding joint custody because the
parties' dissolution was contentious and the standard
orders of visitation assure noncustodial parents
"roughly equal access" to the children. She argues
that joint custody is not favored unless the circumstances
clearly warrant it and that the parties in this case are
already in conflict over the children's extra-curricular
activities.
The
primary consideration in child-custody cases is the welfare
and best interest of the children; all other considerations
are secondary. Fox v. Fox, 2015 Ark.App. 367, at 6,
465 S.W.3d 18, 22. Contrary to Ms. Grimsley's argument,
our legislature has determined that an award of joint custody
is favored in divorce cases. Ark. Code Ann. §
9-13-101(a)(1)(A)(iii) (Repl. 2015). When in the child's
best interest, custody should be awarded in such a way as to
ensure the frequent and continuing contact of the child with
both parents. Montemayor v. Rosen, 2015 Ark.App.
597, at 10, 474 S.W.3d 114, 119. We perform a de novo review
of child-custody matters, but we will not reverse the 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 ...