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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

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

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

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

          Meredith B. Switzer, Judge.

         Appellant Dr. Dac Tat Pham and appellee Anh Thuy Nguyen were married in 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 deposition testimony as a discovery matter rather than an evidentiary matter.

         The argument here involves a discovery violation-whether the untimely presentation of Winar's report to opposing counsel violated the scheduling order. The imposition of sanctions for failure to comply with discovery orders is within the circuit court's discretion. Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992). Arkansas Rule of Civil Procedure 37(b)(2) (2019) provides for sanctions if a party fails to obey an order to provide discovery, including prohibiting introduction of designated matters into evidence. We cannot say the circuit court abused its discretion in excluding Winar's report because Rule 37 specifically provides for exclusion of evidence when a party fails to comply with discovery orders.

         Furthermore, Dr. Pham cannot show he was prejudiced by the circuit court's refusal to allow Winar to use his report while testifying. In his reply brief, he contends he was prejudiced because without his report, Winar testified the contributions to Dr. Pham's retirement after the separation were worth $500, 000 when, in fact, his report stated that the contributions were worth $561, 141. However, because the circuit court divided the retirement accounts as of the date of divorce instead of the date of separation, as urged by Dr. Pham, and we affirm on this point, this discrepancy is irrelevant and not prejudicial to Dr. Pham. See infra.

         III. Division of ...


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