Stibich v. Stibich

Cite as 2016 Ark. App. 251

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-13-949

Opinion Delivered: May 4, 2016

KIMBERLY STIBICH APPEAL FROM THE GARLAND
APPELLANT COUNTY CIRCUIT COURT
[NO. DR-207-457]
V.
HONORABLE RUSSELL ROGERS,
ADAM STIBICH JUDGE
APPELLEE
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART

CLIFF HOOFMAN, Judge

This is a domestic-relations case involving former spouses, Kimberly Stibich and

Adam Stibich. 1 This appeal follows particularly contentious postdecree litigation. In total,

the circuit court presided over twenty days of trial and more than 200 motions,

countermotions, and various other requests for relief. On appeal, Kimberly challenges

several of the circuit court’s decisions relating to custody, child support, property division,

and the award of attorney’s fees. We affirm in part and reverse and remand in part.

I. Facts

Kimberly and Adam married in May 1998 after entering into a prenuptial agreement.

Two children were born of the marriage; S.S. on October 28, 2003, and A.S. on September

6, 2006.

1
The current appeal returns to this court after our previous order for rebriefing. See
Stibich v. Stibich, 2015 Ark. App. 369.
Cite as 2016 Ark. App. 251

In May 2007, Kimberly filed for divorce from Adam. In September 2009, the circuit

court entered a decree of divorce awarding custody of the parties’ children to Kimberly.

The decree also required Adam to pay temporary child support in the amount of $10,000

per month until the circuit court could make a final ruling regarding the amount of child

support he was obligated to pay. 2 This decree did not dispose of the parties’ property and

debt issues. Adam filed an interlocutory appeal of the circuit court’s custody ruling pursuant

to Arkansas Rule of Appellate Procedure–Civil 2(d), and this court affirmed. 3 See Stibich

v. Stibich, 2011 Ark. App. 308, 378 S.W.3d 906.

Following this court’s decision on the interlocutory appeal, the parties began

litigating a litany of issues. This impetus for the renewed litigation came from Adam’s filing

of a motion for contempt, a motion for psychological evaluation, a motion to change

custody, and a motion to reduce his child-support obligation four days after the entry of the

circuit court’s November 30, 2009 supplemental decree. Additionally, the circuit court had

yet to dispose of all of the parties’ property and debt.

The litigation that followed was lengthy and difficult and focused primarily on issues

related to the custody of the parties’ children, child support, and the distribution of marital

property. Ultimately, the circuit court entered a thorough and exhaustive final order

wherein it undoubtedly put forth great effort to ensure that it provided this court with a

2
On November 30, 2009, the circuit court entered a supplemental decree ordering
Adam to pay $15,057.98 per month in child support.
3
Adam inexplicably devotes ten pages of his argument on appeal to disputing the
propriety of decisions reached in the interlocutory appeal. These issues are not currently
before this court, and we will not address them further.
2
Cite as 2016 Ark. App. 251

clear understanding of its decisions and a final order that fully disposed of all pending issues.

In it, the circuit court awarded the parties joint custody, retroactively reduced Adam’s child

support to $8,047 per month, found that Adam owed Kimberly for child-support arrearages,

terminated Adam’s current child-support obligation, fully disposed of the parties’ marital

property issues, and awarded Adam $15,000 in attorney’s fees. This timely appeal by

Kimberly followed.

Kimberly raises several arguments on appeal. Kimberly contends that the circuit

court erred (1) by awarding the parties joint custody of their two children, (2) by terminating

Adam’s child-support obligation upon the award of joint custody, (3) by deciding to offset

money Adam owed her for child-support arrearages with money she owed him, (4) by

requiring her to reimburse Adam for payments he made on behalf of the parties from 2007

to 2009, and (5) by awarding Adam $15,000 in attorney’s fees.

II. Custody and Child Support

For her first point on appeal, Kimberly challenges the circuit court’s decision to

modify its previous custody decision and award the parties joint legal custody of their two

minor children. This court performs a de novo review of child-custody matters, but we

will not reverse a circuit court’s findings unless they are clearly erroneous. Taylor v. Taylor,

353 Ark. 69, 110 S.W.3d 731 (2003). A finding is clearly erroneous when, although there

is evidence to support it, the reviewing court is left with the definite and firm conviction

that a mistake has been made. Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1 (1999).

We recognize and give special deference to the superior position of a circuit court to

evaluate the witnesses, their testimony, and the child’s best interest. Sharp v. Keeler, 99 Ark.

3
Cite as 2016 Ark. App. 251

App. 42, 256 S.W.3d 528 (2007). For a circuit court to change custody of children, it must

first determine that a material change in circumstances has transpired from the time of the

divorce decree and then determine that a change in custody is in the best interest of the

children. Lewellyn v. Lewellyn, 351 Ark. 346, 355, 93 S.W.3d 681, 686 (2002).

First, we consider whether the court erred in determining there had been a material

change in circumstances to warrant a change in custody. In concluding that there had been

a material change in circumstances, the circuit court indicated that its main consideration

was Kimberly’s “overall lack of judgment subsequent to the divorce.” In its letter opinion,

the court outlined several examples of Kimberly’s lack of judgment including,

(1) Ms. Stibich just being with a person like J. Davidson 4 under any
circumstances, caused me concern, let alone living with him and
having sex in front of the children.
(2) Unreasonableness regarding visitation.
(3) Not informing the defendant of matters involving the children.
(4) Damage to property.
(5) Keeping property to which she was not entitled.
(6) Stalking.
(7) The plaintiff’s allegations to OCSEU, the Prosecuting Attorney,
various elected officials, and most importantly, to the State Medical
Board, of which at least most were false but all were malicious.
(8) Alcohol habits.
(9) Spending habits.
(10) I have serious concerns about her credibility formed during testimony
and demeanor through over twenty days of trial, as well as her inability
and/or unwillingness to answer most questions.

The court also indicated that it considered the findings and recommendations of Dr. Virginia

Krauft, an expert appointed by the court to perform a psychological evaluation of the parties,

and Bruce Dodson, a licensed professional counselor who provided marriage counseling to

4
Kimberly’s former boyfriend and a witness for Adam.

4
Cite as 2016 Ark. App. 251

the parties and then counseled Kimberly following the divorce.

The circuit court is in a superior position to evaluate witnesses and their testimony,

and we give great deference to the circuit court’s findings. Sharp, supra. Here, the circuit

court made numerous factual findings to support its conclusion, and many of those findings

regarding Kimberly’s lack of judgment would directly affect the children. It is apparent

from the evidence and the circuit court’s letter opinion that the court found that the parties’

difficulties had substantially worsened since the previous custody determination. We cannot

say that the circuit court erroneously concluded that a material change in circumstances had

occurred.

With this determination made, we direct our review to whether the circuit court

erred by ordering the parties to share joint custody. In reviewing the award of joint custody,

we recognize that our law regarding joint custody has recently changed. In 2013, our

legislature amended Ark. Code Ann. § 9-13-101 to provide that an award of joint custody

is favored in Arkansas. Ark. Code Ann. § 9-13-101(a)(1)(A)(iii) (Repl. 2015). This is a

departure from prior case law holding that joint custody is not favored unless circumstances

clearly warrant such action. Gray v. Gray, 96 Ark. App. 155, 239 S.W.3d 26 (2006).

Regardless of whether joint custody is favored, our law remains that “the mutual ability of

the parties to cooperate in reaching shared decisions in matters affecting the child’s welfare

is a crucial factor bearing on the propriety of an award of joint custody, and such an award

is reversible error where cooperation between the parents is lacking.” Id. at 157–58, 239

S.W.3d at 29 (citing Word v. Remick, 75 Ark. App. 390, 395–96, 58 S.W.3d 422, 426

(2001)).

5
Cite as 2016 Ark. App. 251

One must look no further than the circuit court’s letter opinion regarding custody

to be left with a firm conviction that a mistake was made. The letter opinion provides that

the parties’ “unwillingness to agree on anything” led to the length of this case. (Emphasis in

original.) The letter opinion further provided that the court “was not optimistic about any

agreements being reached” regarding visitation. The court later mentioned the parties’

“inability to agree on anything” and their “unwillingness to agree on anything and to fight

about even the most insignificant matters.” Finally, the amended final order and judgment

provides, “[i]f the parties feel that the Court is not at all confident that the parties will set

aside their personal differences and work together for the best interest of the children, they

would be absolutely correct.”

It is contrary to the best interest of the children to award joint custody to parents

who cannot cooperate—particularly when cooperation is lacking on matters pertaining to

the care and upbringing of the children. After a de novo review, it is abundantly clear that

Kimberly and Adam do not possess the willingness and ability to cooperate in reaching

shared decisions regarding their children. We are left with a firm conviction that the circuit

court made a mistake when it concluded that joint custody was proper. Accordingly, we

reverse the circuit court’s award of joint custody and remand this case to the circuit court

for an award of custody based on its determination of the best interest of the children.

With the child-custody award reversed and remanded, we do not reach the merits

of Kimberly’s arguments against the termination of Adam’s child-support obligation. The

issue of current child support must also be remanded to the circuit court. See Doss v. Miller,

2010 Ark. App. 95, 377 S.W.3d 348.

6
Cite as 2016 Ark. App. 251

III. The Offset

During the course of the proceedings, the circuit court determined that Adam owed

Kimberly $56,133.30 for child-support arrearages; the circuit court also found that Kimberly

owed Adam $214,180.47 for various debts. The court offset the amount Adam owed in

child-support arrearages against the amount Kimberly owed him. This offset resulted in

Adam owing Kimberly nothing and Kimberly owing Adam $158,047.17. Kimberly finds

fault with the circuit court’s decision to offset Adam’s child-support arrearages against the

money she owed him.

A child-support judgment is subject to the equitable defenses that apply to all other

judgments. Ramsey v. Ramsey, 43 Ark. App. 91, 861 S.W.2d 313 (1993). In a proper case,

an equitable defense may apply to prevent the collection of past-due child-support

payments. State Office of Child Support Enf’t v. Mitchell, 61 Ark. App. 54, 964 S.W.2d 218

(1998). Our case law provides that offset is an equitable defense. Walker v. First Commercial

Bank, N.A., 317 Ark. 617, 880 S.W.2d 316 (1994). Adam properly raised the defense of

offset in his pleadings, and the circuit court accepted it as an equitable defense to his child-

support arrearage. Faced with the large sum of money Kimberly owed Adam and

Kimberly’s lack of income, we cannot say that the trial court erred in awarding an offset.

Accordingly, we affirm on this point.

IV. Division of Property

Kimberly also challenges the circuit court’s division of some of the parties’ marital

debt. Specifically, she contends that the circuit court erred when it ordered that she be

responsible for reimbursing Adam $128,940.81—this figure represents the payments he

7
Cite as 2016 Ark. App. 251

made toward a mortgage held by Simmons Bank on the marital home. With respect to the

division of property in a divorce case, we review the court’s findings of fact and affirm them

unless they are clearly erroneous or clearly against the preponderance of the evidence.

Weatherly v. Weatherly, 87 Ark. App. 291, 190 S.W.3d 294 (2004).

Kimberly argues that the parties’ July 2008 temporary consent order requires that

Adam be responsible for this debt. In the temporary consent order, Adam agreed to be

solely responsible for all of the parties’ monthly payments on the mortgage indebtedness,

lines of credit, revolving credit, or any other loans that were outstanding in the parties’

names during the pendency of this matter. However, the temporary consent order also

provided that it was “not a final adjudication as to debt responsibility.”

At the time of the entry of the temporary consent order, the validity of the parties’

prenuptial agreement was in dispute. The prenuptial agreement, if valid, governed the

disposition of the parties’ property and provided that, in the event of divorce, any jointly

titled real estate would remain in Adam’s possession and that neither party could seek

maintenance from the other. Ultimately, the circuit court found that the prenuptial

agreement was valid in an order for partial summary judgment entered in September 2009.

In that order and pursuant to the terms of the prenuptial agreement, the circuit court ordered

that all maintenance to Kimberly cease. The circuit court also recognized that Kimberly

received the benefit of the use of the marital home without having to pay for it, which was

in contravention of the terms of the parties’ prenuptial agreement. As such, the court

reserved for adjudication the issue of reimbursement of maintenance already paid to

8
Cite as 2016 Ark. App. 251

Kimberly by Adam. Her argument that the July 2008 consent order governs the allocation

of the Simmons mortgage indebtedness is without merit.

Additionally, Kimberly did not present evidence to dispute the evidence regarding

the amounts Adam paid on her behalf. Leila Newkirk-Davis, a court-appointed expert,

testified regarding the amount of money Adam paid toward the indebtedness on the marital

home while Kimberly was in possession of the home. Kimberly did not object to or

contradict Ms. Newkirk-Davis’s testimony, and the circuit court ultimately adopted Ms.

Newkirk-Davis’s figures and ordered that Adam was entitled to reimbursement from

Kimberly for an amount equal to the reduction in principal on the indebtedness due on the

marital home. Accordingly, the circuit court’s decision was not clearly erroneous.

V. Attorney’s Fees

For her final point on appeal, Kimberly disputes the propriety of the circuit court’s

decision to award Adam $15,000 in attorney’s fees. In her appellate brief, Kimberly contends

that the award of attorney’s fees impermissibly violated the terms of the parties’ prenuptial

agreement. However, Kimberly never raised this argument at trial. Arguments not raised

at trial will not be addressed for the first time on appeal, and parties are bound on appeal by

the scope and nature of the objections and arguments they presented at trial. Rudder v.

Hurst, 2009 Ark. App. 577, at 13, 337 S.W.3d 565, 574. We summarily dispose of this final

point on appeal.

Affirmed in part; reversed and remanded in part.

ABRAMSON and WHITEAKER, JJ., agree.

Kimberly Stibich, pro se appellant.
Stephanie Chamberlin PA, by: Stephanie Chamberlin, for appellee.
9