ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION I

CA00-504

January 31, 2001

W. QUINTEN COLE AN APPEAL FROM POPE COUNTY

APPELLANT CHANCERY COURT [E95-525]

V. HON. RICHARD E. GARDNER, JR.,

CHANCELLOR

GARNET L. COLE

APPELLEE AFFIRMED

Quinten Cole appeals an order by a Pope County chancellor that denied 1) appellant's motion to set aside a default judgment, 2) appellant's motion to abate alimony, and 3) appellant's petition to terminate alimony; and that found appellant in contempt of court for failure to pay alimony. The chancellor also awarded appellee Garnet Cole an additional judgment in the amount of $15,000 for alimony that had accrued between September 1, 1998, and November 1, 1999. From that order, appellant has filed the present appeal. Our review of the record and applicable laws supports the decision of the chancellor. Therefore, we affirm.

After forty years of marriage, Garnet L. Cole and W. Quinten Cole were granted adivorce by the Chancery Court of Pope County in an order entered on January 14, 1997. In that order, Quinten was ordered to pay Garnet the sum of $1,000 per month for a period of ten years as part of a property settlement. The court also awarded Garnet one-half of Quinten's retirement benefits, one-half of an individual retirement account [IRA], and one-half of a certificate of deposit. In addition, the court reduced the parties to tenants in common in their marital home, in real estate located in Pope County, and in a 550-acre Christmas tree farm in Missouri.

On June 8, 1998, Garnet filed a petition for citation against Quinten, alleging that Quinten had only made one payment of $1,000 since the court entered the divorce decree. She asserted that Quinten was delinquent in the amount of $16,000, and requested that the court hold Quinten in contempt of court for failure to pay alimony as ordered by the court. Garnet further requested the court to award her reasonable attorney's fees and costs associated with her action. The court entered an order and citation on June 16, 1998, and set the matter for a hearing on July 30, 1998. Quinten was served with the order, citation, and a summons on July 7, 1998. The order directed Quinten to appear before the court on July 30, 1998, or be found in contempt of court. Quinten failed to appear at the July 30 hearing and did not file an answer to the pleadings prior to the hearing date. However, on August 5, 1998, Quinten filed an answer to the petition that generally and specifically denied the allegations contained in Garnet's petition.

The court entered an order dated August 10, 1998, which found Quinten in contempt of court for failure to pay alimony as previously ordered. The court also found that Quinten was delinquent in the amount of $17,000 as of July 1, 1998, and entered a judgment in favor of Garnet for that amount with a ten percent interest rate.

On June 10, 1999, Quinten filed a pleading entitled "Petition to Set Aside Default Judgment, Abate Alimony, and Terminate Alimony." In response, Garnet filed a motion to dismiss, alleging that the pleading failed to state a cause of action. She also filed a counter petition, alleging that Quinten had failed to comply with the court's August 10, 1998, order. Garnet requested that the court order Quinten to appear before the court and show cause why the court should not hold him in contempt.

The parties appeared before the court on November 4, 1999. At the conclusion of the hearing, the court denied Quinten's motions to set aside the default judgment and abate alimony. It also denied Quinten's petition to terminate alimony, and found Quinten in contempt of court for failure to pay alimony. The court awarded Garnet an additional judgment in the amount of $15,000 for alimony that accrued between September 1, 1998, and November 1, 1999. It is from this order that Quinten appeals.

Appellant argues 1) that the trial court erroneously failed to apply Rules 12(a) and 55 of the Arkansas Rules of Civil Procedure; and 2) that the trial court abused its discretion when it refused to abate and terminate alimony because there was insufficient evidence to support the chancellor's decision. In response, appellee contends that appellant came before the chancellor with unclean hands, that appellant failed to include a copy of the divorce decree in the abstract, that appellant's reliance on Rules 12(a) and 55 to set aside the order is misplaced, and that there was sufficient evidence to support the chancellor's decision.

Application of Rules 12(a) and 55

Our rules of civil procedure outline the process to file a complaint, issue a summons,and file a timely answer. Civil actions begin with the filing of a complaint with the clerk of the proper court. See Ark. R. Civ. P. 3. Black's Law Dictionary defines a complaint as "the original or initial pleading by which an action is commenced under codes or Rules of Civil Procedure." See Black's 285, (6th ed. 1990). Pleadings include a complaint, an answer, a counterclaim, a reply to a counterclaim, a third party complaint, and a third party answer. See Ark. R. Civ. P. 7(a). All other applications to the court are considered motions, and must be made in writing. See Ark. R. Civ. P. 7(b). Once a complaint is filed, Rule 4 governs the procedure for the clerk of the court to issue a summons. See Ark. R. Civ. P. 4. While Rule 4 applies to the personal service of a complaint and summons, Rule 5 governs the service and filing of every pleading and other papers filed subsequent to the complaint. See Office of Child Support Enforcem't. Unit v. Ragland, 330 Ark. 280, 954 S.W.2d 218 (1997). When a final judgment or decree has been entered and the court has continuing personal jurisdiction over the parties, actions that flow from the original decree are not considered new actions. See id., 954 S.W.2d 218. In this situation, Rule 5 requires that service be made upon the party. See Ark. R. Civ. P. 5(b)(1).

Rule 12(a) of the Arkansas Rules of Civil Procedure provides that "a defendant shall file his answer within twenty (20) days after the service of summons and complaint upon him, except when service is upon a non-resident of this state, in which event he shall have thirty (30) days after service of summons and complaint upon him within which to file his answer." The language in 12(a) suggests that it applies to the filing of an answer to an original action and not an answer to a subsequent pleading in a matter that the court hascontinuing jurisdiction. Indeed, the Addition to Reporter's Notes, 1988 Amendment to Rule 6 of the Arkansas Rules of Civil Procedure states, "Under Rule 12(a), a defendant must answer or file a pre-answer motion within a given number of days `after the service of summons and complaint upon him.' The specified time period thus begins to run when the defendant receives the summons and complaint, irrespective of the manner in which it is served."

Appellee filed a petition for citation with the court on June 9, 1998, alleging that appellant, a non-resident, failed to comply with a previous court decree that ordered appellant to pay alimony. She requested that the court cite appellant to appear before the court to show cause as to why he failed to comply with the court's order. The court issued an order and citation on June 16, 1998, ordering appellant to appear before the court on July 30, 1998, or be held in contempt of court. Although appellant was personally served a copy of the citation and order on July 7, 1998, he did not appear before the court on July 30, 1998.1 Instead, he filed an answer to appellee's petition for citation on August 5, 1998.

While appellant seeks to use Rule 12(a) as a shield to justify his failure to appear in court, his reliance is misplaced. Rule 12(a) specifically refers to answers to a complaint, notanswers to subsequent pleadings in which the court continues to have jurisdiction. When the court already has jurisdiction over the parties, Rule 6(d) requires the moving party to serve a written motion and notice of hearing to the non-moving party no later than ten days before the hearing is scheduled. Here, appellant was personally served on July 7, 1998, and notified that a hearing was scheduled before the court on July 30, 1998. Because the trial court continued to have personal jurisdiction over appellant for purposes of enforcing the divorce decree, we hold that the trial court did not err when it found appellant in contempt of court for failure to appear on July 30, 1998.

We also hold that the trial court did not err when it entered a default judgment that represented the past due amount of appellant's alimony obligation. The record does not reveal that the court held an evidentiary hearing on the contempt citation and default judgment to establish grounds for contempt. We recognize that before a judgment is entered for alimony and a defendant is held in contempt for willful failure to pay, there must be an evidentiary hearing in order to establish a factual basis for contempt. However, the trial court's failure to hold an evidentiary hearing prior to finding appellant in contempt is not fatal because both parties appeared before the trial court in November 1999, and an evidentiary hearing was held at that time.

Trial courts have discretion to enter a default judgment against a party who fails to plead or otherwise defend an action. See Ark. R. Civ. P. 55(a). In determining whether to enter a default judgment, the trial court should consider whether 1) the default is technical in nature and the defendant stands ready to defend; 2) the default has resulted in prejudice to the plaintiff; and 3) the court will set aside the default for reasons contained in Rule 55(c). See Addition to Reporter's Note, 1990 Amendment. When a defendant has previously entered an appearance in an action, the party entitled to judgment must give three days notice to the defendant on their application for default judgment. See Ark. R. Civ. P. 55(b). The court may set aside a default judgment in the event of a "mistake, inadvertence, surprise, or excusable neglect." See Ark. R. Civ. P. 55(c). The party seeking to set aside a default judgment bears the burden of proving that he has a meritorious defense, unless the judgment is deemed void. See id. The trial court has sound discretion to grant or deny a motion to set aside a default judgment. See Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984). On appellate review, the trial court's decision is affirmed, absent an abuse of discretion. See id. at 164, 680 S.W.2d at 690.

Here, it is clear that appellant had ample notice of the time and date of the hearing. Appellant was personally served with the trial court's order and citation on July 7, 1998. The order commanded appellant to appear before the court on July 30, 1998, to show cause as to why he failed to comply with the previous court order to pay alimony or be held in contempt. The trial court did not abuse its discretion in entering a default judgment based on appellant's failure to appear. Also, because appellant failed to show a meritorious defense to his failure to pay alimony, the court did not err in refusing to set aside the judgment. Although appellant argues that appellee failed to comply with Rule 55(b) because she did not serve appellant with written notice of an application for default judgment and because the court did not hold a hearing on the application, a review of the record doesnot reveal that appellant made this argument to the trial court, or obtained a ruling from the court regarding it. Thus, he is precluded from presenting this argument on appeal.

Abatement or Termination of Alimony

Next, appellant argues that there was insufficient evidence to support the trial court's decision to deny his motion to abate or terminate alimony. We disagree.

A chancery court has continuing jurisdiction over parties to a divorce decree with respect to alimony. See Ragland, supra. Awards of alimony are considered binding and conclusive on both parties as to the amount and the circumstances that existed when the court rendered the decree. See Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). As a result, alimony has been characterized as a "continuing general decree," which endures unless it is modified by the showing of a material change in the parties' circumstances. See Ragland, supra.

In this case, appellant argues that the court erred in refusing to abate the alimony that the court ordered in its January 14, 1997, divorce decree.2 Appellant hired an attorney to represent him in the divorce action, and did not appear at the final hearing. In addition, he did not appeal the trial court's decision to award alimony to appellee, or seek relief from the decree pursuant to Rule 60 of the Arkansas Rules of Civil Procedure. Given these circumstances, we cannot say that the trial court abused its discretion in denying appellant'smotion to abate alimony.

In addition, we hold that the court did not err in denying appellant's motion to terminate alimony. A party seeking to terminate or modify alimony bears the burden of proving a material change of circumstances. See Benn v. Benn, 57 Ark. App. 190, 944 S.W.2d 555 (1997). In determining whether a sufficient change exists, the trial court considers the needs of the obligee versus the ability of the obligor to pay. See Benn, supra. Each action is reviewed on a case-by-case basis, with discretion resting with the chancellor. See Benn, supra.

At the time of the final hearing on the divorce, appellee was not employed. Likewise, the record shows that at the time of the November 5, 1999, hearing, appellee was not employed. Her sources of income included a monthly Social Security check and a monthly retirement stipend, which was awarded to appellee as a division of marital property. Appellant's sources of income included his retirement benefits, the proceeds from his sale of a 550-acre Christmas tree farm, and the proceeds from his sale of his interest in the marital home. Although the form of appellant's assets changed, there was no indication that the assets were not equal in value to those awarded him in the divorce decree. We agree that appellant failed to demonstrate a material change in his circumstances after the divorce decree was granted. Therefore, the trial court's decision to deny appellant's motion to terminate alimony was not clearly erroneous, and we affirm.

Because we agree that the chancellor's decision was not an abuse of discretion, we do not address appellee's additional argument of unclean hands.

Affirmed.

Hart and Bird, JJ., agree.

1 Appellant was also served with a summons. The summons is not mentioned in the court's August 10, 1998, order and was not abstracted in appellant's initial brief. Appellant did include a copy of the summons, as an exhibit, with his reply brief. However, our court rules require that an appellant abstract an exhibit. See Ark. Sup. Ct. R. 4-2(a)(6). See also Fulkerson v. Calhoun, 58 Ark. App. 63, 946 S.W.2d 714 (1997) (affirming trial court when appellant failed to abstract an exhibit necessary to understand an issue). Therefore, we do not consider the summons in our analysis where both the fact of appellant's failure to appear and the amount of his arrearage were established.

2 Appellee argues that appellant did not abstract the divorce decree and is therefore precluded from presenting his argument regarding abatement and termination of alimony on appeal. Although appellee is correct that the divorce decree was not abstracted, we may reach the merits of an argument when the abstract contains sufficient evidence to allow a clear understanding of the argument that is presented. See, e.g., Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997)