dissenting.
|lnI recognize that domestic relations cases are necessarily fact-intensive, but that does not excuse the wide variation in this court’s jurisprudence in this area of the law. One need not look any further than the two appeals involving the parties that are before us today. In an unpublished case, CA06-680, 2007 WL 987805, hereinafter Matthews I, handed down on April 4, 2007, this court noted that Katherine’s “Affidavit of Financial Means demonstrated that her income exceeded her expenses,” so we reversed the trial court’s decision to increase alimony. Today, the majority similarly notes that the increase in alimony “makes Katherine’s monthly income exceed her monthly expenses on her affidavit of financial means,” but instead of reducing the trial court’s award of alimony as this court did in Matthews I, the majority invites Katherine to buy a new car and make home improvements.
While the majority’s resolution of the first issue in this case is unsettling, its resolution of the second point is untenable. This court’s failure to enforce its own order betrays the majority’s misunderstanding of the Arkansas Rules of Civil Procedure and countenances a blatant affront to the dignity and authority of this court.
After the mandate issued in Matthews I, where the court of appeals reversed an alimony award, effectively reducing Katherine’s monthly support from $3,500 to $1,935, InSomers petitioned the trial court to refund the excess alimony that he had paid his ex-wife, some $12,520. Katherine then counterclaimed for an increase in alimony. It is well settled that Katherine’s counterclaim constitutes a separate and distinct cause of action. Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983); Ark. R. Civ. P. 13(b). The trial court abused its discretion by allowing Katherine to retain the $12,520 that this court clearly stated that she was not entitled to, under the guise of a “sanction” for failing to provide discovery in a counterclaim filed nearly two months after our mandate issued. This was not a “sanction” for a discovery violation, but a fine illegally imposed and paid directly to Katherine by the trial court, and a cleverly disguised contempt of this court by a trial judge.
It is true that Somers was less than diligent in answering the discovery propounded in Katherine’s counterclaim. While Somers did produce bank statements and tax returns and made his accountant available for a deposition, Somers ultimately failed to produce a 2006 federal and state tax return, which he claimed had not been prepared; bank statements from January 2006 to March 2006, which he claimed did not exist; photocopies of canceled checks, which he claimed his bank did not retain; and a 1099 from the Sherwood Land Company, which he claimed he did not possess. However, it was established at the hearing that his failure to produce these documents did not in any way impair Katherine’s ability to pursue her counterclaim. As found by the trial court, there was never a dispute as to whether Somers had the means to pay Katherine more alimony — the only contested issue presented by Katherine’s counterclaim was whether her needs justified an increase in alimony.
| ]2Even though the requested documentation was irrelevant to Katherine’s counterclaim — the trial judge expressly stated, “There’s no question he’s got the ability to pay” — the trial judge nonetheless decided to punish Somers for “dragging his feet” and not “playing by the rules.” The trial judge granted Katherine all her attorney fees associated with her motion to compel, some $16,296.43, and denied Som-ers the opportunity to present any evidence concerning limits on his ability to pay increased alimony. Harsh as these sanctions were, I concede that both are authorized by Rule 37 of the Arkansas Rules of Civil Procedure. The trial judge, however, also struck Somers’s petition for a refund of the excess alimony, which was based on a determination by the Arkansas Court of Appeals in an opinion that predated her counterclaim. This “sanction” exceeded the trial judge’s authority.
Because the majority sloughs this sanction off as not being an abuse of discretion, once again, I feel compelled to remind the majority, as I did in Evtimov v. Milanova, 2009 Ark.App. 208, 300 S.W.3d 110, that jurisprudence has defined judicial discretion as
discretion bounded by rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of judicial whim, but the exercise of judicial judgment, based on facts and guided by law or the equitable decision or what is just and proper under the circumstances. It is legal discretion to be exercised in discerning the course prescribed by law and is not to give effect to the will of the judge, but to that of the law.... A liberty or privilege to decide what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of the law.
While it is true that a trial judge has the authority to impose “severe sanctions,” the | ^majority has not cited any authority that empowers a trial judge to reach outside the current lawsuit in which the discovery violations occurred and dismiss a separate cause of action. The case cited by the majority, Rush v. Fielderest Cannon, Inc., 326 Ark. 849, 934 S.W.2d 512 (1996), certainly does not address this issue. There, the “severe sanction” was the dismissal with prejudice of the appellant’s products liability lawsuit when she repeatedly refused to provide a release of her medical records and disclose the identity of her expert witnesses in that lawsuit.
I cannot ignore that the so-called “sanction” is a direct affront to the authority of the court of appeals. In imposing this “sanction,” the trial judge denied Somers his right to collect the excess alimony that the court of appeals said he was entitled to in Matthews I. Essentially, the trial judge has reinstated the order that this court has reversed.1
. Somehow the majority's idea that the appellant was required to ask the trial court if it was indeed flouting the authority of the court of appeals and get a ruling on that question is untenable. Suffice it to say that in Matthews I, this court reduced the trial court’s award of alimony from $3,500 to $1,935, yet rather than refund to Somers the money that he overpaid, the trial judge ordered that he forfeit it. On top of that, the trial judge added an additional $1000 per month to his ostensibly reduced alimony award, despite the fact that the majority acknowledges that the award is not justified by Katherine's support affidavit. I simply did the math.