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Pham v. Nguyen

Court of Appeals of Arkansas, Division IV

October 30, 2019

DAC TAT PHAM, Appellant
v.
ANH THUY NGUYEN, Appellee

Page 428

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, THIRTEENTH DIVISION [NO. 60DR-15-5053], HONORABLE W. MICHAEL REIF, JUDGE

         Owings Law Firm, Little Rock, by: Steven A. Owings and Tammy B. Gattis, for appellant.

         Taylor & Taylor Law Firm, P.A., Little Rock, by: Andrew M. Taylor and Tasha C. Taylor, for appellee.

          OPINION

         MEREDITH B. SWITZER, Judge

          Appellant Dr. Dac Tat Pham and appellee Anh Thuy Nguyen were married in

Page 429

May 1987 and lived together as husband and wife until July 2011. Nguyen filed for divorce in Tennessee in 2011, but the only action taken in that case appears to be an order freezing the parties’ bank accounts and restraining Dr. Pham from the parties’ homes in Memphis and Little Rock. Dr. Pham eventually filed for divorce in Arkansas in December 2015. A final divorce hearing was held on August 30, 2017, and the divorce decree was filed on March 19, 2018. On appeal, Dr. Pham argues the circuit court erred: (1) in excluding his expert’s written report and refusing to allow him to rely on his report during his testimony; (2) in dividing retirement accounts as of the date of divorce instead of the date of separation; (3) in finding a $75,000 debt owed to Nguyen’s brother should be divided equally between the parties; and (4) in finding he was solely liable for a $50,000 mortgage on his medical office. We affirm.

          I. Standard of Review

          This court reviews domestic-relations cases de novo, but we will not reverse the circuit court’s findings unless they are clearly erroneous. Doss v. Doss, 2018 Ark.App. 487, 561 S.W.3d 348. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. We give due deference to the circuit court’s superior position to determine the credibility of witnesses and the weight to be given their testimony. McGahhey v. McGahhey, 2018 Ark.App. 597, 567 S.W.3d 522.

          II. Exclusion of Expert’s Written Report

          Dr. Pham’s first point on appeal is that the circuit court erred in refusing to allow his expert, CPA Curtis Winar, to use his written report during his testimony at the hearing regarding which funds he considered to be premarital and the current value of those funds. Although Winar’s name had been previously disclosed to Nguyen, Winar’s written report was not disclosed until the day before the final hearing, which was after the expert-report exchange deadline set forth by the circuit court’s scheduling order. Nguyen’s counsel requested that Winar’s testimony and his report be excluded. Although the circuit court allowed Winar to testify, it ruled he could not use the report during his testimony.

          At the hearing, Winar testified that the value of Dr. Pham’s retirement plans was approximately $2,500,000. He stated that the value of the premarital portion of the retirement funds as of December 2016 was approximately $237,000, and if the circuit court determined that the marital contributions stopped as of June 2011, the premarital portion would be worth over $500,000.

         In support of his argument, Dr. Pham cites Hill v. Billups,85 Ark.App. 166, 148 S.W.3d 288 (2004). Hill does not support Dr. Pham’s argument. In that case, the question on appeal was whether the circuit court erred in analyzing the admissibility of ...


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