Allen v. Allen

• Decision Date: 20 June 2007
• Docket Number: No. CA 06-823.,CA 06-823.
• Citation: Allen v. Allen, 99 Ark. App. 292, 259 S.W.3d 480 (Ark. App. 2007)
• Parties: Teresa ALLEN, Appellant, v. Chad P. ALLEN, Appellee.
• Court: Arkansas Court of Appeals

259 S.W.3d 480

99 Ark. App. 292

Teresa ALLEN, Appellant, v. Chad P. ALLEN, Appellee.

No. CA 06-823.

Court of Appeals of Arkansas.

June 20, 2007.

Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by Traci LaCerra, North Little Rock, AR, for appellant.

The Law Offices of Gary Green, P.A., by Randy Hall, Little Rock, AR, for appellee.

SARAH J. HEFFLEY, Judge.

Appellant Teresa Allen appeals from a post-decree order holding that she has no marital interest in appellee Chad Allen's full retirement benefits that vested during the marriage. We agree that the trial court erred and reverse and remand.

The parties' seven-year marriage ended with the entry of a divorce decree that was filed of record on August 30, 2004. The decree contained several interrelated provisions regarding the division of marital property. As pertinent to this appeal, the decree fixed appellee's marital interest in appellant's business at $40,000. Appellant was entitled, however, to deduct from that sum her marital share of equipment appellee had sold and her share of appellee's retirement benefits. Specifically, the decree provided:

5. The parties have agreed that the [Appellant] shall retain her business, All For Pets Veterinarian Clinic, as her sole and separate property free from any right, title or claim by the [Appellee]. The [Appellant] shall assume all debt associated with the business and shall refinance any debt which is held jointly by the parties. The [Appellant] shall hold the [Appellee] harmless on the debt associated with the business.

The [Appellant] shall pay the [Appellee] the sum of $40,000 for his marital interest in the business. The [Appellant] shall have the right to make the payment after the sale of the marital residence from the proceeds from the sale of the residence. The parties further agree that the [Appellant] shall be entitled to use as a set-off her one-half of the sale proceeds from the equipment and her one-half interest in the [Appellee's] retirement. After application of the sale proceeds from the sale of the home and equipment and the retirement proceeds, if there remains any money owed to [Appellee], the [Appellant] shall pay the remaining amount at the rate of $500 per month until paid in full.

6. The parties each have retirement. The parties shall divide equally the retirement which accrued during the marriage. Said retirement shall be divided pursuant to a Qualified Domestic Relations Order.

Date of marriage August 23, 1997

Date of divorce June 24, 2004

7. The [Appellee] has sold certain items of equipment which was marital property. The [Appellee] shall pay the [Appellant] one-half of the sale proceeds from the sale of the equipment upon entry of the decree.

The date-of-marriage and date-of-divorce recitals in paragraph six are in a font that is different from the rest of the decree and were inserted and initialed by appellee's attorney. The date of divorce referred to in this insertion is the date that the divorce hearing was held, June 24, 2004, rather than the date the divorce decree was entered, August 30, 2004. Appellant's attorney signed her approval of the decree.

After the decree was entered, the parties could not come to terms over the dollar amount of the deductions appellant was allowed to subtract from the $40,000 that represented appellee's interest in appellant's business. This dispute prompted appellee to file a "Motion to Enforce the Decree" on December 15, 2005. At the hearing held on March 2, 2006, appellee took the position that appellant was not allowed to calculate her half of the equipment that was sold from the total proceeds of the sale. He contended that she was only entitled to one-half of the net proceeds, after the debt on the equipment was satisfied. Appellee also asserted that appellant was not entitled to share in his full retirement benefits. Appellee put on evidence that, as of June 24, 2004, he was only vested in his retirement in the amount of the contributions that he had made, but that it was not until July 1 2004, that he became fully vested in his retirement plan. Appellee argued that, because the decree recited that the date of the divorce was June 24, 2004, appellant was not entitled to share in the contributions made by his employer that vested on the subsequent date of July 1, 2004. At the hearing, appellee's attorney candidly admitted that he had not disclosed the vesting date to appellant prior to the divorce.

The trial court ruled in favor of appellee on both of his arguments. The trial court permitted deductions of $13,000 for the equipment, representing appellant's one-half share of the net proceeds from the sale, and $5,721 for appellee's retirement, as limited to one-half of appellee's contributions. After other deductions not relevant here, appellant was ordered to pay appellee $16,283.25. Appellant appeals from the order setting out the trial court's decision, challenging only that part of the order concerning appellee's retirement benefits.

We review traditional equity cases on both factual and legal questions de novo on the record, but we will not reverse a finding by the trial court unless it is clearly erroneous. Crosby v. Crosby, 97 Ark.App. 316, 249 S.W.3d 144 (2007). We do not defer to the trial court's determinations of law. Pittman v. Pittman, 84 Ark.App. 293, 139 S.W.3d 134 (2003).

Appellant is entirely correct in her argument that marital property is to be divided as of the time of the divorce. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). Moreover, the decree provided that the parties were to "divide equally the retirement which accrued during the marriage." Thus, we agree with appellant that the trial court clearly erred in its decision. The decree erroneously recited June 24, 2004, as the date of the divorce. However, that was the date of the divorce hearing, not the date of the actual divorce. It is firmly established, both by rule and our case law, that a judgment or decree is not effective until it is entered as provided in Ark. R. Civ. P. 58 and Administrative Rule 2. Price v. Price, 341 Ark. 311, 16 S.W.3d 248 (2000); Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989). See also Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998); Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 954 S.W.2d 939 (1997); Clayton v. State, 321 Ark. 217, 321 Ark. 217, 900 S.W.2d 537 (1995); General Motors Acceptance Corp. v. Eubanks, 318 Ark. 640, 887 S.W.2d 292 (1994); Nance v. State, 318 Ark. 758, 891 S.W.2d 26 (1994); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992); Filyaw v. Bouton, 87 Ark.App. 320, 191 S.W.3d 540 (2004); A-1 Bonding v. State, 64 Ark.App. 135, 984 S.W.2d 29 (1998); Morrell v. Morrell, 48 Ark.App. 54, 889 S.W.2d 772 (1994); Brown v. Imboden, 28 Ark.App. 127, 771 S.W.2d 312 (1989). A judgment, decree, or order is "entered" when it is stamped or marked by the clerk. Price v. Price, supra; Adm. Order No. 2. The purpose of this law is to provide a definite point at which a judgment, be it a decree of divorce or other final judicial act, becomes effective. Standridge v. Standridge, supra. It is also meant to eliminate disputes between litigants. Price v. Price, supra. It follows that, by law, the parties' marriage did not end until the decree was filed on August 30, 2004. Consequently, appellant is entitled to share in all of appellee's retirement benefits that accrued prior to that date in accordance with paragraph six of the decree. In our view, the settled law establishing a definitive point in time when a judgment or decree becomes effective cannot be subverted by a recital in a decree. We thus reverse the trial court's order.

We also reject appellee's assertion that acceptance of appellant's argument violates the provisions of Ark. R. Civ. P. 60 by modifying the decree past the rule's ninety-day deadline. Rather, our holding is an interpretation of the decree that is consonant with the law and the undisputed facts of this case. Also, there is no improper modification at work here. In Tyer v. Tyer, 56 Ark.App. 1, 937 S.W.2d 667 (1997), the case appellee cites, we did hold that under Rule 60 the trial court lacked jurisdiction to modify a divorce decree to include the distribution of marital property that was not mentioned in the divorce decree. However, that holding presupposes that the decree of divorce was a final order. That is not the case here.

For a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Roberts v. Roberts, 70 Ark. App. 94, 14 S.W.3d 529 (2000). An order is not final and appealable merely because it settles the issue as a matter of law; to be final, the order must also put the court's directive into execution, ending the litigation or a separable branch of it. Morton v. Morton, 61 Ark.App. 161, 965 S.W.2d 809 (1998). The amount of the judgment must be computed, as near as may be, in dollars and cents, so as to be enforced by execution or some other appropriate manner. Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967). See also, Hastings v. Planters & Stockmen Bank, 296 Ark. 409, 757 S.W.2d 546 (1989); Morton v. Morton, supra; Meadors v. Meadors, 58 Ark.App. 96, 946 S.W.2d 724 (1997). Accord Office of Child Support Enforcement v. Oliver, 324 Ark. 447, 921 S.W.2d 602 (1996); White v. Mattingly, 89 Ark.App. 55, 199 S.W.3d 724 (2004).

In Thomas v. McElroy, supra, the supreme court discussed the formal requirements of a judgment in the context of deciding what constituted a final judgment. There, McElroy had filed suit against Thomas for unpaid rent. After a hearing, the trial court entered an order finding that Thomas owed $40 a month during the period between December 9, 1963, and July 8, 1964. About a year later, the trial court entered an order that granted judgment against Thomas in the amount of $760. Thomas argued on...