NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION III

DONALD LEE JACKSON

APPELLANT

V.

SHEILA LA'VETTE JACKSON

APPELLEE

CA01-01230

AUGUST 28, 2002

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

[NO. E 2000-489-2-3]

HONORABLE FRED DAVIS, CHANCELLOR

AFFIRMED

Appellant, Donald Lee Jackson, appeals from a contempt of court order by a judge in Jefferson County Circuit Court, Domestic Relations Division. Appellant has two points on appeal. First, appellant argues that the circuit court was without authority to formulate and issue Interim Orders from a hearing of which neither appellant nor appellant's counsel received effective pre-hearing notice. Second, appellant argues that the finding that appellant was in contempt of prior orders was not specifically announced from the bench at the conclusion of the hearing, and the finding that he willfully violated or failed to carry out court directives to make temporary payments was against the aggregate weight of the evidence. We affirm.

Appellant and appellee were married on September 9, 1995. There was one child born of the marriage. In February 2000, the parties separated. Appellee filed for divorce on March 7, 2000, and appellant filed an answer on March 13, 2000. Appellee requested a temporary order regarding the

issues of spousal support, child support, and child insurance. As a result, a hearing wasscheduled for May 31, 2000. Appellee's counsel notified appellant's counsel by hand delivering a copy of a confirmation letter that was addressed to the court and verified receipt of that letter by a phone call to appellant's counsel's office. The hearing convened on May 31, 2000, without appellant or his counsel present. The trial judge issued orders regarding family residence, temporary spousal support, temporary child support, and health care measures for the minor child. On June 12, 2000, appellant filed a motion to set aside the order based upon a lack of notice, and the trial judge denied appellant's motion, finding that appellant had sufficient notice of the May 31, 2000, hearing. On December 18, 2000, appellee filed a motion for contempt. A final hearing was held on January 2, 2001; a final divorce decree was entered on January 29, 2001. On April 10, 2001, a hearing was held on appellee's motion for contempt. The trial judge found that appellant was in contempt for payment of temporary child support and payment of temporary alimony, and the trial judge awarded appellee attorney's fees of $200. On August 15, 2001, the court dismissed appellant's motion to set aside the order. This appeal followed.

In reviewing chancery cases, this court considers the evidence de novo, but will not reverse a chancellor's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002); Tucker v. Tucker, 74 Ark. App. 316, 49 S.W.3d 145 (2001). "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Atkinson v. Atkinson, 72 Ark. App. 15, 19, 32 S.W.3d 41, 44 (2000) (quoting Smith v. Parker, 67 Ark. App. 221, 224, 998 S.W.2d 1, 3 (1999)).

For appellant's first argument on appeal, he argues that the circuit court was without authority to formulate and issue Interim Orders from a hearing for which neither appellant nor appellant's counsel received effective pre-hearing notice. Rule 5(b) of the Arkansas Rules of CivilProcedure states that:

Except as provided in paragraph (3) of this subdivision, service upon the attorney or upon the party shall be made by delivering a copy to him or by sending it to him by regular mail at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy for purposes of this paragraph means handing it to the attorney or to the party; by leaving it at his office with his clerk or other person in charge thereof; or, if the office is closed or the person has no office, leaving it at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age. Service by mail is presumptively complete upon mailing. When service is permitted upon an attorney, such service may be effected by electronic transmission, provided that the attorney being served has facilities within his office to receive and reproduce verbatim electronic transmissions, or such service may be made by a commercial delivery service which maintains permanent records of actual delivery.

(Emphasis added). In this case, appellee's attorney, Ms. Townsend, had the notice of the May 31, 2000, hearing hand delivered to appellant's counsel's office pursuant to Rule 5(b). Appellee contends that the notice envelope was left on a desk. Nonetheless, Ms. Townsend's secretary placed a follow-up phone call to appellant's counsel's office, and she spoke with Mr. John Kearney, appellant's counsel's brother and law partner. Mr. John Kearney was also apparently Mr. Julius Kearney's co-counsel in this case because Mr. John Kearney signed various pleadings and was the attorney of record for both the final hearing and the hearing on the motion for contempt. Appellee's counsel stated at the hearing regarding the temporary order that Mr. John Kearney replied that he was aware that the notice had been received in the office. However, appellant's counsel admitted in his brief that his office procedure dictates that if the notice does not arrive through United States mail, then it is not placed on the office's events calendar. Matters of credibility are for the trial court to determine. Killian v. Hill, 32 Ark. App. 25, 795 S.W.2d 369 (1990). From these facts, it is clear that there was sufficient evidence to support the judge's findings.

For appellant's second argument on appeal, he argues that the finding that appellant was in contempt of prior orders was not specifically announced from the bench at the conclusion of thehearing, and the finding that he willfully violated or failed to carry out court directives to make temporary payments was against the aggregate weight of the evidence. Punishment for civil contempt will be upheld by this court unless the trial court's order is arbitrary or against the weight of the evidence. Sims v. First State Bank of Plainview, 73 Ark. App. 325, 43 S.W.3d 175 (2001) (citing Wakefield v. Wakefield, 64 Ark. App. 147, 984 S.W.2d 32 (1998)). Our review of a finding of contempt is limited to examining the findings of the trial court and reversing only if the trial court's decision is against the preponderance of the evidence. In re Brown v. Brown, 305 Ark. 493, 809 S.W.2d 808 (1991) (failure to comply with divorce order).

In this case, the trial judge specifically announced from the bench that appellee's attorney was "going to do the order finding that [appellant was] in contempt and that he [was] to pay some sum of money on these arrearages that we've spelled out here." This ruling was based on the fact that the evidence clearly showed that appellant had failed to comply with the court's temporary order in that he failed to make temporary child support payments and temporary alimony payments. As a result, the trial judge announced the ruling of contempt from the bench followed by the written order which specified that appellant was in contempt on payment of temporary child support and payment of temporary alimony. Moreover, the trial judge's ruling was not against the preponderance of the evidence. Our supreme court has said that the order alleged to be violated must be definite in its terms as to duties imposed, and the command must be express rather than implied. See Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). The temporary order, filed June 20, 2000, expressly stated that appellant was to pay temporary child support and temporary spousal support. In addition, the only sanction imposed on appellant was the requirment that he pay attorney's fees of $200. As there was clearly no error on the part of the trial judge in this case, we affirm.

Affirmed.

Pittman and Robbins, JJ., agree