Davenport v. Pack
| Decision Date | 26 June 1991 |
| Docket Number | No. CA,CA |
| Citation | 812 S.W.2d 487,35 Ark.App. 40 |
| Parties | Barbara J. (Pack) DAVENPORT, Appellant, v. Odus J. PACK, Appellee. 90-436. |
| Court | Arkansas Court of Appeals |
G. Randolph Satterfield, Little Rock, for appellant.
Randall Templeton, Little Rock, for appellee.
The appellant Barbara J. (Pack) Davenport appeals from the decree of the chancellor who dismissed a motion to enforce a provision of a property settlement agreement contained in the parties' decree of divorce. We reverse and remand.
The parties were divorced on September 8, 1983, by a decree which contained a property settlement agreement dated August 30, 1983. Paragraph V of the agreement provided that "HUSBAND agrees to provide carpet and wallpaper (to be selected by WIFE) for the house to be purchased by WIFE as her future residence." (Parentheses in the original.) The decree approved the property settlement agreement and also contained a provision stating that the court retained jurisdiction to enter such orders "as may be appropriate in enforcing the terms of this agreement."
On October 25, 1989, appellant filed a "Motion to Enforce Decree" which alleged that on June 1, 1989, appellant purchased her "future residence"; that on August 8, 1989, appellant notified the appellee in writing of her desire for appellee to perform the agreement; and that appellee had failed to do so. Appellant asked that appellee be compelled to perform his contract, or in the alternative, that appellant be awarded judgment in an amount to compensate her for the carpet and wallpaper.
Appellee denied appellant's allegations and pleaded the defenses of laches and the statute of limitations, and accord and satisfaction. By way of counterclaim, appellee alleged appellant was indebted to him in the amount of $100.00 per month for insurance payments.
A hearing was held on April 2, 1990, and on April 9, 1990, the chancellor entered an order dismissing appellant's motion. The order stated:
From the motion filed herein, the divorce decree entered on September 8, 1983, including the contractual property settlement contained therein, the answer and counterclaim filed by the defendant and the plaintiff's response thereto and the arguments of counsel, the Court finds that the five (5) year statute of limitation and the doctrine of laches applies to this claim and bars the claim asserted by the plaintiff. The defendant withdraws his counterclaim.
Appellant argues the trial court erred in finding her claim barred by the statute of limitations. She argues that under the terms of the property settlement agreement, appellee's obligation would not arise until some future time, and that appellant's right to enforce the contract for wallpaper and carpet accrued upon the purchase of her "future residence."
Appellant also argues the trial court erred in finding her claim barred by the doctrine of laches because that doctrine is premised upon some detrimental change in position which makes it inequitable to enforce the claim. Appellant argues that the trial court took no testimony, therefore, there was no evidence of inequitable circumstances resulting from delay or detrimental change in appellee's position.
The appellee argues that the burden is on the appellant to bring up a record sufficient to demonstrate error and that where no attempt is made to make a record according to the established procedure contained in Rule 6(d) of the Rules of Appellate Procedure, it is presumed the matters presented in an unrecorded hearing support the findings of the trial court.
We first consider the appellee's argument that we should affirm the order of dismissal because the record on appeal contains no record of a hearing before the trial judge. This argument raises preliminary matters for consideration.
To begin with, we see nothing to indicate that the court's order of dismissal was based upon something that occurred in a hearing. The trial court's order states that the court's findings were based upon "the motion filed herein, the divorce decree entered on September 8, 1983, including the contractual property settlement contained therein, the answer and counterclaim filed by the defendant and the plaintiff's response thereto and the arguments of counsel." All the matters mentioned as a part of the basis for the court's order are in the record as exhibits to pleadings or in response to a request for production of documents--except the arguments of counsel.
Now, the appellant did file a motion in this (appellate) court stating that the court reporter had advised counsel for appellant that the transcript of record of argument of counsel had been accidently erased by the recording device used by the reporter, and appellant prayed for an "Order Ordering the Trial Court to Assist Counsel in Reconstructing the Record." We denied the motion with the notation "See Rule 6(d) of the Rules of Appellate Procedure." Apparently the appellant did not proceed under Rule 6(d) as nothing further was filed in this court. But we know of nothing in argument by counsel--short of agreement or stipulation--that could have authorized the order of dismissal. The trial court's order does not state that it is entered by "agreement" or "stipulation" and the appellee does not even contend that this occurred. As the court said in Dent v. Adkisson, 184 Ark. 869, 43 S.W.2d 739 (1931), "all that the record justifies us in concluding is that the chancellor heard no testimony." 184 Ark. at 874-75, 43 S.W.2d 739.
Another matter for consideration concerns the procedure followed by the trial court. Appellee's response to the motion filed by appellant pleaded the defenses of laches and limitations and alleged an accord and satisfaction. Rule 12 of the Arkansas Rules of Civil Procedure allows certain defenses to be asserted in a responsive pleading and authorizes a party to move for judgment on the pleadings as to those defenses. However, laches and limitations are affirmative defenses, see Ark.R.Civ.P. 8(c), and are not listed as defenses that may be the subject of a motion to dismiss under Rule 12. Even so, it has been held that where this is only a procedural point, the motion to dismiss may be treated as if it were properly raised. Amos v. Amos, 282 Ark. 532, 669 S.W.2d 200 (1984). Thus, if the defenses of laches and limitations were considered under a Rule 12 motion to dismiss, there would be no evidence to be reported. But if matters outside the pleadings were presented to and not excluded by the court, Rule 12(c) requires that the motion to dismiss be treated as one for summary judgment and disposed of as provided in Ark.R.Civ.P. 56. Again, under that procedure, no evidence would have been taken. The accord and satisfaction pleaded by appellee is also an affirmative defense under Rule 8(c), supra, but, in addition, it is based upon...
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