Ryburn v. Ryburn

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ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-13-653
Opinion Delivered February 12, 2014
APPEAL FROM THE SALINE
JOE RYBURN COUNTY CIRCUIT COURT
APPELLANT [No. DR-04-653-1]
V. HONORABLE BOBBY D.
McCALLISTER, JUDGE
JANET CAROL RYBURN AFFIRMED IN PART; REVERSED AND
APPELLEE REMANDED IN PART
LARRY D. VAUGHT, Judge
Pro se appellant Joe Ryburn appeals two post-divorce1 orders of the Saline County
Circuit Court: a May 2011 order reducing child support, and a June 2011 order holding Mr.
Ryburn in contempt and awarding appellee Janet Ryburn $104,000 for the appraised value of
the marital home.2 This is the third time this pro se appeal is before our court. In Ryburn v.
Ryburn, 2012 Ark. App. 256, we ordered rebriefing because Mr. Ryburn’s brief did not comply
with our rules. When the appeal returned to us, we dismissed without prejudice for lack of a
final order. Ryburn v. Ryburn, 2012 Ark. App. 435. Because the circuit court has since entered an
1
In December 2004, the Saline County Circuit Court entered a decree of divorce that
“approved and confirmed” Janet and Joe Ryburn’s “child custody, support and property
settlement agreement.”
2
Although Mr. Ryburn’s notice of appeal requests relief from the United States Court
of Appeals for the Eighth Circuit, he references these two state-court orders, and his
jurisdictional statement is made to the Arkansas Court of Appeals. Additionally, he filed the
notice of appeal with our clerk of court.
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order of dismissal regarding third-party defendant Wells Fargo, we consider the appeal on the
merits and affirm in part and reverse and remand in part.
Under the agreement, as set forth in the parties’ 2004 divorce decree, Ms. Ryburn was
awarded custody of the parties’ minor children and was to occupy the home with them “until
[she] acquires an alternative dwelling, or until the parties agree to dispose of the house through
a sale. Should such sale occur, the parties shall divide the proceeds from said sale equally.” Mr.
Ryburn was to continue paying all bills, including the home mortgage, credit cards, and all
utilities until Ms. Ryburn became “able to pay some of them through her own income,” and she
was to make a good-faith effort to attempt to earn a supplemental income.
In an August 2009 letter to Ms. Ryburn, Mr. Ryburn wrote that on the advice of his
attorney, he had begun foreclosure proceedings on the marital house, which would “take from
both of us a burden that will never be of value given the condition of the house and the fact that
it is mortgaged for significantly more than can be gained from sale of the house.” He wrote that
he had phoned Wells Fargo that morning to begin the proceedings and that Ms. Ryburn had the
option of continuing to own the house by seeking her own mortgage, with probably about sixty
days before the bank would evict her. He also wrote that he had spoken with bankruptcy lawyers
and advised that she do the same. He concluded: “After five years of paying you $4,500 a month
including mortgage, utilities, child support and every thing else you’ve gotten, the free ride is
over. I believe $270,000 is more than sufficient payment. Thank you for not contacting me.”
In a December 2009 order, the circuit court set child support at $1463 a month. Mr.
Ryburn (through his attorney) filed a motion for modification in February 2010, alleging in part
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that Ms. Ryburn had not attempted to acquire an alternative dwelling; that therefore, the house
should be sold; that Ms. Ryburn should be responsible for mortgage payments until the sale
because she was residing there; and that Mr. Ryburn’s income had dropped, and he should no
longer be required to make house payments because she had already had six years to relocate.
In a March 2010 order, the circuit court found that Ms. Ryburn had sufficient income
to pay household utilities but not other bills.3 It denied Mr. Ryburn’s request to sell the marital
home, observing that the decree was contractual and that the home could be sold only upon
“[Ms. Ryburn’s] acquiring an alternate dwelling, or the parties agreeing to dispose of the house
through a sale.” The court found that it lacked authority to sell the house without either
condition being met.
In an order of June 2010, the circuit court noted that Mr. Ryburn did not appear despite
being given notice. It granted his attorney’s oral motion to withdraw and found Mr. Ryburn in
contempt based on his refusal to make mortgage payments on the parties’ marital home as
required by the court’s previous order. The court also found that Mr. Ryburn was in arrears in
the payment of mortgage, penalties, and interest in the amount of $4870.69 and ordered him to
pay all arrearages, interest, and penalties delinquent on the house and to make all future
payments on the house in a timely manner as required by the previous orders. Further, based on
Mr. Ryburn’s failure to attend the hearing, the court issued a Writ of Body Attachment
3
At a November 2009 hearing, Ms. Ryburn testified, “I’ve gotten a job at Topp’s Shoes
to try and pay some bills of my own. I make $8.00 an hour, and bring home about $730.00
every two weeks.”
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commanding the appropriate law-enforcement officers “to take [Mr. Ryburn] into custody and
hold [him there] until he appears before this court or post a cash bond.”
In January 2011, Ms. Ryburn filed a motion requesting that Mr. Ryburn be held in
contempt for failing to pay the mortgage on the home, which was subject to foreclosure and
sale. She prayed that she be awarded the reasonable rental value of the home for her entire life
expectancy or, alternatively, be compensated for his failure to maintain the home and/or take
necessary steps to allow her to remain there. A mutual restraining order, entered the same day,
restrained each party from selling, encumbering, contracting to sell, or otherwise disposing of
property belonging to the parties except in the ordinary course of business. In April 2011, Mr.
Ryburn requested a reduction in child support and claimed a $7696 overpayment.
On May 31, 2011, the circuit court reduced child support to $1218 a month, reserving
other issues. In an order entered on June 8, 2011, the circuit court again found appellant in
contempt for failure to pay the mortgage as required in the 2004 decree and subsequent orders,
which the court characterized as a “domestic support obligation”4 and awarded Ms. Ryburn
judgment of $104,000 plus interest. Mr. Ryburn appeals from these two orders and presents ten
points of alleged error: 1) that the divorce decree and property-settlement agreement should be
set aside based on its incomprehensible wording and the court’s prejudicial interpretation; 2) that
the court erred in denying him the ability to present evidence that the contractual obligation to
be able to sell the house had been fulfilled; 3) that the court erred in its interpretation of the
divorce decree and its prejudicial ruling; 4) that the court erred in refusing to divide the marital
4
Not to be confused with an award of alimony, the circuit court refers to Mr. Ryburn’s
collective mortgage and child-support payments as a “domestic support obligation.”
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debt on the home and in awarding Ms. Ryburn judgment in the amount of $104,000; 5) that the
court erred in finding Mr. Ryburn in contempt absent evidence of willful conduct; 6) that the
court erred in refusing to consider evidence that Ms. Ryburn violated the restraining order and
giving her preferential treatment concerning the condition of the marital property; 7) that Ms.
Ryburn’s attorney should be reprimanded for changing the wording of the court in its orders;
8) that we should remind the circuit court that pro se litigants are to be treated with the same
respect due any member of the court; 9) that the circuit court erred in not allowing into evidence
Mr. Ryburn’s payments of support and resulting indebtedness; 10) that the circuit court erred
in the amount of child support it set on two separate occasions.
In consideration of the points on appeal, we remind Mr. Ryburn that pro se litigants are
held to the same standards as attorneys. Ryburn v. Ryburn, 2012 Ark. App. 256 (citing Perry v. State,
287 Ark. 384, 699 S.W.2d 739 (1985)); Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984).
And, a point is not sufficiently developed for review when appellant cites authority without
applying the holdings of those cases to the facts of the case at bar and otherwise makes no
convincing argument on appeal; we will not conduct research on appellant’s behalf. Thompson
v. Thompson, 2012 Ark. App. 296.
Further, we review domestic-relations decisions de novo on the record, but we will not
reverse a finding of fact by the circuit court unless it is clearly erroneous. Hansen v. Hansen, 2011
Ark. App. 586. 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
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determine the credibility of the witnesses and the weight to be accorded to their testimony. Id.
The circuit court’s findings of fact are reviewed in the light most favorable to the appellee, and
we will defer to the superior position of the circuit court to judge the credibility of witnesses.
Coker v. Coker, 2012 Ark. 383, --- S.W.3d ----. Finally, it is the task of the trial judge to determine
the expendable income of a child-support payor; when the amount of child support is at issue,
we will not reverse the trial judge absent an abuse of discretion. Parker v. Parker, 97 Ark. App.
298, 248 S.W.3d 523 (2007). We need not consider arguments made for the first time on appeal.
Key v. Coryell, 86 Ark. App. 340 185, S.W.3d 98 (2004).
We first consider Mr. Ryburn’s arguments relating to the parties’ initial divorce decree
and property-settlement agreement. He claims that the decree should be set aside based on its
incomprehensible wording and the court’s prejudicial interpretation of the decree that resulted
in an erroneous contempt finding against him. Although the circuit court commented from the
bench that the decree was the “worst” it had ever seen and was difficult to make sense of the
provisions of the decree, there were no specific findings in the court’s written orders. Pursuant
to Arkansas Supreme Court Administrative Order No. 2(b)(2), an oral order announced from
the bench does not become effective until reduced to writing and filed. Carroll v. Carroll, 2013
Ark. App. 401. Unless a circuit court’s ruling is reduced to writing and filed of record, we have
nothing to review. Id.
The parties’ contractual agreement, written into the divorce decree, clearly stated that the
marital home would be occupied by Ms. Ryburn and the minor children until she acquired
alternative housing or the parties agreed to dispose of the house through a sale. The agreement
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further stated that Mr. Ryburn would pay the mortgage, credit cards, and all utilities until Ms.
Ryburn was able to pay some of them through her own income.
At the time of the final hearing, Ms. Ryburn lived in the marital home along with the
parties’ minor child. Mr. Ryburn ceased making mortgage payments despite the court’s order of
March 2010 denying his request to sell the home because the parties had not agreed to do so,
and Ms. Ryburn had not acquired alternative housing. He continued to ignore the court’s order
of June 2010, which found him in contempt of court for failing to fulfill his past mortgage-
payment obligation requiring that he continue making future payments. Finally, Mr. Ryburn
ignored the court’s January 2011 order restraining the parties from encumbering property
belonging to them, by pursuing a foreclosure option. Therefore, it cannot be said that the circuit
court clearly erred in the June 2011 order finding Mr. Ryburn in contempt for failure to pay the
mortgage as required by the 2004 divorce decree and its subsequent orders.
Mr. Ryburn also claims that the circuit court refused to allow evidence showing that Ms.
Ryburn moved from the marital home and resided in her own dwelling for two years after the
divorce, proving that his contractual obligations had been satisfied. Unfortunately, he failed to
show a proffer of this testimony, and without citation to the abstract, he states that his own
attempts to testify about her break in residence were disallowed based on a res judicata ruling.
He also claims that the circuit court refused to allow evidence showing Ms. Ryburn’s theft of
property from the marital home and her posting of false and slanderous statements about him
on Facebook.5 An argument is not sufficient if it simply invites the court to search the record
5
The court ruled that the matter was res judicata when Mr. Ryburn testified at an April
2011 hearing that he allowed Ms. Ryburn, after living on her mother’s property two years, to
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generally for errors. Goldman v. Goldman, 2010 Ark. App. 408; Ark. Sup. Ct. R. 4-2(a)(7) (2013)
(requiring that a reference in the argument portion of a brief to material parts of the abstract
refer to page numbers of the abstract or addendum). Because Mr. Ryburn has failed to direct our
attention to the disallowed evidence, he has failed to carry his burden, and we do not address
these claims. Id.
Mr. Ryburn also argues that the circuit court erred in not requiring a fair and equitable
distribution of marital debt and in holding him in contempt. Again, the court committed no
clear error in finding Mr. Ryburn in contempt for failure to pay the mortgage as required by the
2004 divorce decree and subsequent orders because the mortgage was not a debt to be
divided—it was a contractual obligation. In general, damages recoverable for breach of contract
are those that would place the injured party in the same position as if the contract had not been
breached. Dawson v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999). Damages must arise
from the wrongful acts of the breaching party, and the judgment must have some relationship
to the damages proved. Durham v. Smith, 2012 Ark. App. 690 (observing that the proper measure
of damages in a conversion is the fair market value of the property at the time and place of
conversion). Unfortunately for Mr. Ryburn, there was no finite date for Ms. Ryburn’s occupation
of the marital home—so long as a minor child lived there with her. Because Mr. Ryburn
breached the parties’ contract by failing to pay the mortgage as agreed, it cannot be said that
there was clear error in awarding Ms. Ryburn the assessed value of the home.
move into the marital home because it was in the Benton School District. He also testified at
that hearing that Ms. Ryburn posted on Facebook that he was a “deadbeat” dad, but there is
no abstracted ruling that this testimony was not allowed.
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Next, Mr. Ryburn complains that in the final order of June 2011, Ms. Ryburn’s counsel
improperly referred to the property settlement as “spousal support,” which was never ordered
and was never mentioned by the judge. He complains that the improper word manipulation was
prejudicial to both the appellate court and to him as a pro se litigant, who was without the
experience to notice and address this manipulation. The actual wording in the order that refers
to the mortgage-payment requirement is “domestic support obligation,” which is admittedly odd
(see infra). However, Ms. Ryburn’s counsel correctly notes that Mr. Ryburn did not avail himself
of relief afforded by Arkansas Rules of Civil Procedure 59 (grounds for new trials) or 60 (relief
from judgment, decree, or order), and pro se litigants are held to the same standards as attorneys.
Ryburn v. Ryburn, 2012 Ark. App. 256.
Mr. Ryburn complains that a body-attachment order was attached to a contempt charge
never served on him; that he was arrested at his father’s funeral in April 2011; that the circuit
judge trivialized the next morning’s proceedings and his distress after a night in jail; and that
after he told the judge he would represent himself due to financial difficulties, neither the judge
nor Ms. Ryburn’s counsel informed him of the June 2011 motion of contempt or the January
2011 motion “for permanent support.” These arguments are nothing more than conclusory
remarks and are not addressable on appeal.
Mr. Ryburn further complains that the circuit court denied admission into evidence of
the $300,000 he paid Ms. Ryburn in the six years after divorce (including car payments for the
adult daughter, car-insurance payments for the entire household, all cell-phone bills, and other
financial demands of Ms. Ryburn) and evidence of another debt he incurred, including $75,000
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in student loans taken out on behalf of their adult child. He cites Whitworth v. Whitworth, 2009
Ark. App. 410, 319 S.W.3d 269, for the proposition that money paid for adult children’s welfare
is evidence of indebtedness, but he fails to acknowledge that this passage is from the dissent.
There is no merit to Mr. Ryburn’s arguments. In Vigneault v. Vigneault, 2010 Ark. App. 716, at
7–8, 379 S.W.3d 566, 571 we observed:
Although in Whitworth consideration was given to Whitworth’s support of a child in
college, we did not imply that a circuit court falls into error by failing to give credit for
paying college expenses. Our law is settled that, unless a child is disabled, a parent’s duty
of support ceases when a child turns eighteen or graduates from high school. Like the
circuit court, our view is that appellant’s support of their sons in college is purely a
voluntary decision on his part.
(Citation omitted.)
In his final point of appeal, Mr. Ryburn asserts that the circuit court twice miscalculated
his child support, first at $1463 in the order of December 2009 and then at $1218.13 in May
2011. He points to a 2008 W-2 and to a letter he wrote to the circuit court with “corrected
calculations,” apparently after the second order was entered. Although he timely appealed the
second order, it is not clear that the W-2 evidence was introduced into evidence for the court’s
consideration. But, his final point has a second portion that we find compelling.
Mr. Ryburn argues that the requirements of Administrative Order No. 10 support his
claim that the circuit court erred by not including a determination of his income or a list of
explanations for deviating from our child-support guidelines. “All orders granting or modifying
child support (including agreed orders) shall contain the court’s determination of the payor’s
income, recite the amount of support required under the guidelines, and recite whether the court
deviated from the Family Support Chart.” Ark. Sup. Ct. Admin. Order No. 10, § I. In Blalock
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v. Blalock, 2013 Ark. App. 659, where the child-support order did not contain a determination
of the payor’s income, did not refer to the guidelines, and did not recite whether it deviated from
the family-support chart, we reversed and remanded for further findings by the circuit court in
compliance with Administrative Order No. 10 and Arkansas Code Annotated section 9-12-312.
Id.
Here, the May 2011 child-support order simply states, “Based upon the evidence
presented by the Defendant the child support obligation of the Defendant shall be reduced to
the amount of $1,218.30 per month.” Like Blalock, the order lacks determination of the payor’s
income, reference to the guidelines, and recitation of whether it deviated from the
family-support chart. Therefore, we reverse and remand for compliance with Administrative
Order 10. All other points of error are either not properly before us for consideration or lack
merit.
Affirmed in part; reversed and remanded in part.
GRUBER and WHITEAKER, JJ., agree.
Joe Ryburn, pro se appellant.
Jensen Young & Houston, PLLC, by: Terence C. Jensen, for appellee.
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