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 ...