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ARKANSAS COURT OF APPEALS DIVISION III No. CV-13-162

Opinion Delivered November 6, 2013

SHERRY ANN INGLE APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT APPELLANT [NO. DR-2011-13]

V. HONORABLE JOHN R. PUTMAN, JUDGE WILLIAM “BILLY” ROBERT INGLE, JR.

APPELLEE AFFIRMED

RHONDA K. WOOD, Judge

Appellant Sherry Ann Ingle appeals a circuit court order that found her in

contempt and ordered her to deliver three gold coins or $20,000.00 to appellee William

“Billy” Robert Ingle, Jr., in accordance with their divorce’s property settlement

agreement or go to jail. Sherry argues that the court erred in finding her in contempt for

two reasons. One, she argues the property settlement was too indefinite in its terms to be

complied with, and two, she has no ability to return the coins to Billy. We disagree and

affirm.

Sherry and Billy married in 1982 and separated in 2011. The court granted the

divorce in August 2011. The decree included a stipulated property settlement agreement

(Agreement). The Agreement listed the division of certain personal property, which

included three gold, five-dollar coins. These coins belonged to Billy’s grandmother and Cite as

were listed as his property. In October 2011, Billy filed a petition for contempt and

claimed that Sherry had not returned the coins and had denied him access to his property.

Sherry admitted that she did not allow Billy to enter her property at the appointed time to

collect his remaining property, including the coins. She contended that she only had two

gold coins in her possession and had attempted to give these to him, but he refused to

accept them. The parties also disagreed over whether the two coins in Sherry’s possession

were in fact part of the three coins due Billy. At the contempt hearing, the court found

Sherry in contempt and ordered her to return the three coins or pay $20,000.00 to Billy

by September 1, 2012. This appeal followed.

Contempt is divided into criminal contempt and civil contempt. Doss v. Miller,

,

. The court has given a concise description of the

two concepts, noting that criminal contempt punishes while civil contempt coerces.

Civil contempt persuades parties to comply with orders of the court. It is a matter

between the judge and the litigant and not between the two litigants.

Our standard of review for civil contempt is whether the finding of the circuit

court is clearly against the preponderance of the evidence. Applegate v. Applegate,

,

(2008). In our review, we defer to the superior position of the

circuit judge to determine the credibility of witnesses and the weight to be given their

testimony. Russell v. Russell,

, ___ S.W.3d ___. In order to establish civil

contempt, there must be willful disobedience of a valid order of a court.

However, before one can be held in contempt for violating the court’s order, the order

must be definite in its terms and clear as to what duties it imposes.

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A court’s power to institute civil contempt in order to acquire compliance with its

orders is a long-standing rule of law, but it may not be exercised where the alleged

contemnor is without the ability to comply. Aswell v. Aswell,

,

(2004). The court is empowered to punish the defendant by imprisonment

for willful obstinacy where it shall appear that he had the means with which to comply

with the decree, but it should not imprison him where he shows that he has not the

pecuniary ability to comply with the decree and is in such ill health that he cannot earn

enough money to do so. Griffith v. Griffith,

,

(1955).

The testimony of Sherry and Billy constituted the majority of the evidence at the

contempt hearing. The court stated in its order of contempt that it found Billy the more

credible of the two parties, and this court will defer to the superior position of the circuit

judge in making this determination. Sherry stated that she did not allow Billy to enter her

property as required by the Agreement because he was “rude and discourteous.”

Regardless of her reason for barring Billy from her property, she deliberately acted in

violation of a court order and supplied sufficient grounds for the court to find her in

contempt.

In her defense, Sherry argues that the Agreement was too indefinite in its terms for

her to comply. Her argument is that the Agreement was not definite as to the precise

description of the gold coins. The language of the Agreement was clear. Additionally,

Sherry entered into the Agreement with counsel and had the opportunity to require more

definite descriptions of the property if she was unsure whether she had the property in her

possession. She neglected to do so, and she does not appear to have had any difficulty in

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complying with the remainder of it. The court’s finding that the Agreement was

sufficiently definite for her to comply was not clearly against the preponderance of the

evidence.

Sherry next argues that she does not have the specific gold coins Billy alleges

consisted of his grandmother’s gold coins in the Agreement and therefore she cannot

comply. While Sherry is correct that a court may not find a party in contempt if they

cannot comply with the order, this only applies in specific circumstances. Even if Sherry,

in good faith, is unable to produce the three coins, she did not demonstrate nor argue

below that she was unable to pay the $20,000.00. Although Sherry argues lastly that the

circuit court erred in finding Billy more credible than her, as stated, we defer to the circuit

court’s findings as to the weight of the evidence and credibility of the parties. Therefore,

we cannot find that the circuit court was clearly erroneous in finding Sherry less credible.

For the above reasons, we cannot find that the circuit court erred in finding Sherry

in contempt by a preponderance of the evidence.

Affirmed.

GLADWIN, C.J., and PITTMAN, J., agree.

The Strother Firm, P.A., by: Judith C. Strother, for appellant.

Cooper & Bayless, by: Mark C. Cooper; and Carney Law Firm, by: Jodi G. Carney, for

appellee.

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