ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

CA03-8

December 17, 2003

LEO VANSCOY AN APPEAL FROM BENTON COUNTY

APPELLANT CIRCUIT COURT

[E 2001-855]

v.

HONORABLE XOLLIE DUNCAN,

SUSAN VANSCOY CIRCUIT JUDGE

APPELLEE

AFFIRMED IN PART; REVERSED and

DISMISSED IN PART

Olly Neal, Judge

This appeal arises from an acrimonious post-divorce dispute. The trial court held appellant in contempt and sentenced him to fifteen days' confinement for the contempt, increased appellant's child-support obligation, and made an unequal distribution of funds from the previously ordered sale of marital property. Appellant raises seven points on appeal. We affirm in part and reverse and dismiss in part.

Appellant Leo VanScoy and appellee Susan VanScoy were married on October 23, 1981, and two children were born of the marriage: Leo VanScoy, III, born July 20, 1982, and Starla VanScoy, born March 28, 1984. The parties separated, and appellee filed a complaint for divorce on May 15, 2001. The divorce trial was held on November 28, 2001, and the divorce decree was entered on January 3, 2002. The decree granted appellee a divorce, awarded her custody of the one minor child, ordered appellant to pay child support of $100 per week based upon his weekly net income of $560, equally divided the marital property, ordered the marital property sold and the proceeds applied to the parties' debts, and awarded appellee $2,500 in attorney's fees. As specifically relevant to this appeal, the decree provided:

On January 22, 2002, appellee filed a petition for contempt, alleging that appellant had failed to pay the attorney's fees and costs or provide her with the information concerning the accounts receivable. Appellee amended her petition for contempt, alleging, in addition to the matters in the original petition, that appellant had paid the attorney's fees with business funds, in effect partially paying appellee with her own funds. Appellee also alleged that appellant was in arrears in child-support payments; that appellant had not cooperated with the auctioneer; and that appellant had failed to place the marital residence on the market so that it could be sold.

Appellant filed a motion for reconsideration on February 19, 2002, seeking to have the court reconsider its decision concerning the marital business, Delta One/Northwest Arkansas Investigations. Appellant alleged that the court failed to apportion any overhead to appellee in the original decree that awarded her one-half of the accounts receivable and therefore, the division of marital property was inequitable.

On April 12, 2002, appellee filed a petition for disbursement of funds from the auction and for contempt for appellant's interference with the auctioneer. The auction of marital property was conducted on April 6, 2002, and realized $29,188.14 in net proceeds. The auctioneer reported that several items were unavailable and that appellant and others had interfered with his duties and had attempted to intimidate him. On April 17, 2002, appellee filed another contempt petition alleging that appellant had fallen further in arrears in his child-support obligation and that appellant had also failed to pay certain marital debts. The petition also sought modification of appellant's child-support obligation, alleging that appellant had misrepresented his income at the time of the divorce. Also on April 17, appellee filed a motion to compel discovery, seeking answers to interrogatories and requests for production of documents. The trial court granted the motion to compel and ordered appellant to answer the discovery by the close of business on April 19, 2002. On April 23, 2002, appellee filed a motion for sanctions, alleging that appellant had not completely answered the discovery.

The trial court held a hearing on all of the pending petitions on May 23-24, 2002. Appellant testified that he provided the financial information on his three bank accounts - Northwest Arkansas Investigations, Doss Investigations, and his personal account - but that he had medical conditions and was taking a large number of medications. He stated that he had been cooperating with the accountant, Ms. Garrigus, and that she was able to access some invoices and accounts receivable on the computer but that there were some items that she was unable to retrieve. He stated that, until April 2000, appellee handled the banking and bookkeeping for Northwest Arkansas Investigations/Delta One.

Barbara Garrigus, an accountant who works for appellant, testified that, to the best of her knowledge, appellant operates two businesses, Doss Investigations and Northwest Arkansas Investigations. She stated that she believed that the new business (Doss) was formed in February 2002. Garrigus stated that she was not aware that appellee owned part of the corporation and that she did not "zero out" the books when appellant started the new business after the divorce. She stated that she had not separated the income from Doss Investigations from the income from Northwest Arkansas Investigations because, as far as she was concerned, she was still dealing with Northwest Arkansas Investigations. She stated that appellant's salary for the past few years has been $1,500 biweekly. She stated that appellant used a company check to pay $23,000 to the circuit clerk's office for the property purchased at the auction. She stated that, if that money came from a corporate account, it would be classified as a draw for accounting purposes. She also stated that the money used to pay the attorney's fees and the $9,000 withdrawn by appellant would also be considered personal draws.

Appellee testified that she knew that some of the items were missing from the auction, such as the boat, the trailer, and the car. She also testified that the laptop computer, the Gateway computer, and a commemorative edition .357 magnum pistol and its box were also missing. These items were not specifically on the exhibit list attached to the divorce decree. She stated that, when appellant opened the gun safe at the auction, several guns were missing. Appellee also testified that the 1995 Crown Victoria automobile was not present because appellant drove it to the auction but that much of the safety equipment was missing from the vehicle.

Eddie Layne, the auctioneer, testified that he believed that appellant was doing everything possible to keep him from executing his duties. He testified that he went to the marital residence, where appellant was living, to determine items to be auctioned and was met by a security guard. He testified that he believed that the guard was trying to intimidate him and that appellant was not cooperative. Layne testified that he did not recall whether the Crown Victoria vehicle was on the property on April 4, 2002. He stated that he told appellant that the vehicle had to be present at the auction. Layne testified that a freezer was not sold because it was in what he deemed to be unmarketable condition because it had a foul odor inside and was not emptied. Layne testified that there were other items that were never located prior to the auction, including a Glock pistol, a boat and trailer that appellant had been instructed to make available, another trailer, an IBM Thinkpad computer, an older vehicle used as a security car, a gun rack, a CB radio, gun covers, and some ammunition clips. Layne testified that, when appellant told him on the morning of the auction that he did not have the keys to the gun safe, he called the lawyers and the circuit clerk and threatened appellant with going to jail. Layne testified that appellant's brother Doug stepped between them, displayed a badge, said that he was a police officer, and threatened to arrest Layne. Layne stated that appellant did not do anything to stop his brother. He also stated that Doug VanScoy asserted that there was a lien on the Crown Victoria. Appellant ultimately purchased the vehicle. Layne stated that he believed that appellant's action could have affected the marketability of the items.

Appellant testified that the sale of the personal property occurred on April 6, 2002, and that the auctioneer, Layne, pushed him back toward a display, grabbed his arm, cursed him, and asked the whereabouts of clips to some of the guns to be sold. Appellant testified that he told Layne where the clips were. He testified further that his brother Doug tried to pacify Layne but that they proceeded to get into an argument. Appellant stated that he did not try to encourage his brother to take any action on his behalf. Appellant testified that the $23,000 he used to pay for auction items came from several people. He also testified that, after the auction, an IBM laptop computer was found in a closet with some other items that the auctioneer had left behind. Appellant testified that the voucher report from the auctioneer lists three .357 magnum pistols as being sold with a separate gun case sold but that he could not be sure that it was the one in the box. Appellant said he gave the auctioneer instructions as to where to find the boat but was never told that the auctioneer needed to get the boat. Appellant testified that he had Mike Watson to deliver the car to the auction site. He also testified that there was some county property in the back of the car that was removed and photographed before the car was delivered. Appellant testified that a satellite system was still mounted to the roof of the house and that he did not interfere with Mr. Layne's getting that system. Appellant denied having anything to do with his brother asserting that there was a lien on the vehicle.

Appellant stated that he was trying to make his child-support payments every two weeks on the first and 15th but that payday did not always fall on those days. He stated that he thought he had been regular with his payments because, every time he receives a paycheck, he pays his current support and the arrearage payment. He admitted that it was possible that he could have been behind in his payments if a month had five weeks in it. Appellant admitted not having paid on the ring or on the credit cards but stated that was because appellee never provided him with a bill. Appellant also stated that he did not know how much or where to pay the Bates Medical Center bill. Appellant admitted that his affidavit of financial means was probably a little out of date because he was in the process of purchasing a new home and the affidavit did not include an IRS debt of between $30,000 and $70,000. Appellant stated that his vehicle payment of $592.20 was always paid from the Doss Investigations account as a business expense. He stated that it was not listed on his affidavit of financial means. He also stated that he took $23,000 out of the Northwest Arkansas Investigations account, and that money was not listed on the affidavit of financial means. Appellant also admitted taking a $9,000 draw and $2,635 for attorney's fees.

At the end of the hearing, the trial court found appellant in contempt for failing to provide the information concerning the accounts receivable, for failing to make assets available for the auctioneer and for his actions at the auction, and for failing to pay child support as ordered. The trial court found that appellant did not make certain assets available for the auction, valued those assets at $6,260, awarded appellee that amount from the auction proceeds, and equally divided the remainder of the proceeds. The trial court also found that appellant's actions at the auction resulted in additional expenses and awarded appellee $400 from appellant's share of the proceeds. The trial court found that appellant took a draw of $23,180 from the business without giving appellee a like sum. The trial court modified appellant's child-support obligation, finding that appellant had income from the business including appellant's car payment through the business and that his weekly net income was $726, with a child-support payment of $129. The trial court ordered appellant jailed for fifteen days as punishment for his failure to comply with the discovery and provide the information concerning the accounts receivable. The court also ordered appellant jailed until he paid appellee $23,180 for his draw from the business. The court also ordered appellant to immediately pay $125 to bring the child support current. The trial court also ordered appellant to pay attorney's fees of $2,600 - $1,100 for the failure to make discovery, $500 for the original contempt citation, $500 for the child-support petition, and $500 for contempt for his actions concerning the auction. An order was entered on June 11, 2002, and this appeal followed.

Appellant argues seven points on appeal: (1) that the trial court erred in its ambiguous and indefinite division of the marital business and in failing to require a valuation prior to distribution; (2) that the trial court erred in modifying his child-support obligation because appellee failed to show a change in circumstances; (3) that the trial court erred in ordering appellant to compensate appellee for sums drawn from appellant's post-divorce business; (4) that the trial judge erred in imprisoning appellant for fifteen days as punishment for criminal contempt; (5) that the trial court erred in finding appellant in civil contempt for failure to provide assets for the auction of the parties' marital property, in awarding appellee the entire amount of the value of the missing marital property, and in finding appellant in contempt for the actions of a third party; (6) that the trial court erred in finding that appellant's actions at the auction created unnecessary additional expenses warranting an unequal division of the auction proceeds; and (7) that the trial court erred in not reimbursing appellant for property acquired after the divorce but sold at the auction of the marital property.

For his first point, appellant argues that the trial court erred in making an ambiguous and indefinite division of the marital business and in failing to require a valuation prior to distribution. This point is not properly before the court because it challenges the division of the parties' marital property made in the decree. As noted above, the divorce trial was held on November 28, 2001, and the divorce decree entered on January 3, 2002. The January 3, 2002, decree was final and appealable because it granted the divorce, decided the custody and support issues, and disposed of all of the property and debt issues by ordering the marital property sold and debts paid and by returning the separate property to each party. The order appointed the circuit clerk as commissioner to conduct the sale. Appellant did not appeal the divorce decree. Instead, he filed a "Motion for Reconsideration" on February 19, 2002, seeking to have the trial court revalue and distribute the marital property. This motion was in the nature of a motion for a new trial under Arkansas Rule of Civil Procedure 59 because it argued that the trial court should have ordered a valuation of the business before dividing the business equally between the parties and also considered the business overhead in deciding the division of marital property - arguments that the decision was against the preponderance of the evidence and contrary to law and grounds provided for in Rule 59(a)(6). See Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997). However, the motion was untimely because it was filed more than ten days after entry of the decree on January 3, 2002. Ark. R. Civ. P. 59(b). Because the motion was untimely, the trial court should not have held a hearing on the motion. Duncan v. Mitchell, 296 Ark. 113, 752 S.W.2d 43 (1988). Although the trial court held a hearing on the motion on March 4, 2002, and indicated from the bench that the motion was denied, the trial court did not enter an order disposing of the motion until June 5, 2002. A trial court loses jurisdiction to act on a Rule 59 motion thirty days after the motion is filed. Reis v. Yates, 313 Ark. 300, 854 S.W.2d 335 (1993). We lack jurisdiction to hear this point due to appellant's failure to appeal the divorce decree and the untimely post-trial motion did not extend the time for filing the notice of appeal. Also, appellant did not appeal within thirty days of the deemed denial of his post-trial motion.

Appellant's second point is that the trial court erred in modifying his child-support obligation because appellee failed to show a change in circumstances. Matters concerning the award of child support are reviewed de novo. We will not reverse a trial court's findings of fact unless such findings are clearly erroneous. Alfano v. Alfano, 77 Ark. App. 62, 72 S.W.3d 104 (2002). In reviewing the trial court's findings, due deference is given to the trial court's superior position to determine witness credibility and the weight to be accorded to witness testimony. Id. Generally, when the amount of child support is at issue, the trial court will not be reversed unless there is an abuse of discretion. Id. Additionally, the trial court's decision regarding the sufficiency of a change in circumstances to warrant a modification in child support is a factual finding, and the trial court's determination on that issue will not be reversed unless clearly erroneous. Woodson v. Johnson, 63 Ark. App. 192, 975 S.W.2d 880 (1998).

There is a presumption that the trial court correctly determined the proper amount of child support in the original decree. Alfano, supra. When the amount of support has been previously set in a decree, the trial court must find a change in circumstances before again applying the family support chart and Ark. Code Ann. § 9-12-312 (Repl. 2002). Id. The party seeking the modification in child support has the burden of showing that there has been a change in circumstances. Woodson, supra. At the time of the divorce, the trial court set appellant's obligation at $100 per week, based on appellant's affidavits of financial means showing his net income to be $561 per week. The trial court modified that amount based on a finding that appellant's current take-home pay was $726 per week. The evidence introduced on this point was that appellant made three draws since the divorce totaling $34,815, but the trial court stated that it did not consider this as income because it was part of the property division. The only other factor mentioned to justify modification of the child support was appellant's testimony that his car payment of $592.20 per month was paid by the business. Company-paid personal expenses are considered income for purposes of setting child support. See Weir v. Phillips, 75 Ark. App. 208, 55 S.W.3d 804 (2001). However, this fact was known to the trial court at the time of the divorce. A modification is to be based on the conditions changed since the original setting of support or unknown to the trial court at the time. See Henkell v. Henkell, 224 Ark. 366, 273 S.W.2d 402 (1954). If the trial court did not consider appellant's draws as income for child-support purposes, there is no evidence of a change in circumstances to support a modification because the only other factor is appellant's car payment. It was appellee's burden to prove a change in circumstances and the trial court's finding that there was a change of circumstances was clearly erroneous. We reverse and dismiss on this point.

Appellant's third point argues that the trial court erred in ordering appellant to compensate appellee for sums drawn from appellant's post-divorce business. We do not consider this argument because appellant has failed to cite any legal authority and the failure to cite authority or make a convincing argument is sufficient reason for affirmance. See Middletonv. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001); Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000).

Appellant's fourth point is that the trial judge erred in imprisoning appellant for fifteen days as punishment for criminal contempt. A finding of criminal contempt is reviewed in the light most favorable to the trial court's decision and affirmed if supported by substantial evidence. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993); Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988). Appellant does not challenge the finding that he is guilty of contempt. Rather, appellant argues that the punishment is excessive given his health condition. Appellant also relies on Ark. Code Ann. § 16-10-108 (1999) for his contention that the fifteen day sentence was excessive. Section16-10-108(b)(1) provides that "[p]unishments for contempt may be by fine or imprisonment in the jail of the county where the court may be sitting, or both, in the discretion of the court. However, the fines shall in no case exceed the sum of fifty dollars ($50.00) nor the imprisonment ten (10) days." However, this section has been held not to limit a trial court's authority to impose punishment for contempt. Carle, supra; Yarbrough, supra; Weldon v. State, 150 Ark. 407, 234 S.W.466 (1921); Turk v. State, 123 Ark. 341, 185 S.W.472 (1916). The contempt charge in the present case arose from appellant's failure to provide records to appellee, as well as to make payment of attorney's fees and other obligations under the decree. The power of appellate courts to modify punishment imposed for contempt has been recognized in numerous cases. Carle, supra. Appellant did not offer any proof of his health conditions except his testimony and a pharmacy receipt for $1,500 worth of medications. However, the trial court was not required to accept appellant's testimony. McClard v. McClard, 50 Ark. App. 189, 901 S.W.2d 33 (1995). Further, the term of imprisonment or the amount of the fine in a case of criminal contempt is within the trial court's discretion. See Yarbrough, supra. We affirm on this point.

Appellant's fifth point is that the trial court erred in finding appellant in civil contempt for failure to provide assets for the auction of the parties' marital property, in awarding appellee the entire amount of the value of the missing marital property, and in finding appellant in contempt for the actions of a third party. Appellant divides his argument into two parts. In the first, he argues that the trial court erred in finding that appellant failed to make assets available for the auction and in awarding appellee the full value of the missing items. Here, auctioneer Layne testified that the freezer was in no condition to be sold the day before the sale and that other items, including a boat and trailer, computers, and guns, were missing. Appellant argues that he could account for all of the missing items, although he attempts to place the blame for the freezer and the boat and trailer not being available at the auction on Layne. However, the trial court placed the burden on the parties to make the assets available. This is essentially a factual argument and turns on the trial court's credibility determinations. See Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001).

In the second part under this point, appellant argues that it was error for the trial court to hold him in contempt for the actions of his brother. However, the trial court did not hold appellant in contempt for the actions of Doug VanScoy; rather, the trial court held appellant in contempt for his failure to make items available. The trial court's findings include appellant's failure to make assets available including his failure to clean out the refrigerator, the freezer, and the filing cabinet; the failure to provide the boat and trailer, the travel trailer, and the laptop; and the incident involving the keys to the gun safe. While the trial court mentioned intimidation by appellant's employees and his brother, it is clear that the trial court focused on the assets. Here, appellant was ordered in the divorce decree to cooperate and make all marital property in his possession available to the auctioneer. He did not do so and the trial court was within its discretion to hold appellant in contempt. We affirm on this point.

Appellant's sixth point is that the trial court erred in finding that appellant's actions at the auction created unnecessary additional expenses warranting an unequal division of the auction proceeds. As we understand the argument, appellant is arguing both that his actions did not cause the additional $400 in expenses charged by auctioneer Layne and that the $400 fine was not justified. The $400 was listed in Layne's report as resulting from appellant's lack of cooperation. Layne testified about the incident where he went to appellant's residence and was met by appellant, who demanded that Layne sign a paper before being admitted to the residence. Layne refuse to sign the paper and contacted the attorneys and the trial judge. Further, Layne testified that the next day, he went back to appellant's residence and appellant demanded to see his driver's license. We cannot say that the trial court's finding was clearly erroneous. Also, appellant fails to provide any authority as to why this award was unwarranted. The failure to cite authority is sufficient reason to affirm the trial court's ruling on this point. Middleton, supra; Womack, supra.

As appellant's seventh point, he argues that the trial court erred in not reimbursing appellant for property acquired after the divorce but sold at the auction of the marital property. Appellant testified that he had purchased certain office equipment after the divorce and that this equipment was sold by Layne. The trial court refused to grant relief, stating that appellant testified that he used business funds to purchase the equipment. This issue clearly turned upon the trial court's superior position to determine the credibility of witnesses and the weight of their testimony. Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). Given the deference due the trial court's credibility determinations, we affirm. Further, in Pickett v. Ferguson, 45 Ark. 177 (1885), the supreme court recognized that a court of equity may refuse to hear a party in contempt for disobeying its orders on discretionary matter.

Affirmed in part, reversed and dismissed in part.

Hart and Baker, JJ., agree.