Gibson v. Gibson

• Court: Arkansas Court of Appeals
• Writing for the Court: Karen R. Baker
• Citation: Gibson v. Gibson, 185 S.W.3d 122, 87 Ark.App. 62 (Ark. App. 2004)
• Decision Date: 16 June 2004
• Docket Number: No. CA 03-757.,CA 03-757.
• Parties: Gordon L. GIBSON v. Connie GIBSON.

185 S.W.3d 122

Gordon L. GIBSON v. Connie GIBSON.

No. CA 03-757.

Court of Appeals of Arkansas, Divisions I, II, and III.

June 16, 2004.

COPYRIGHT MATERIAL OMITTED

Dover, Dixon, Horne, PLLC, by: W. Michael Reif and Nona Morris, Little Rock, for appellant.

Patty Law Firm, by: Claibourne W. Patty, Jr., North Little Rock, for appellee.

KAREN R. BAKER, Judge.

Appellant, Gordon Gibson, appeals the trial court's denial of his petition to terminate alimony provided to appellee, Connie Gibson, pursuant to the parties' divorce decree. He raises three points on appeal: (1) The trial court erred in not finding the requests for admissions admitted due to appellee's failure to file a timely response; (2) The trial court erred in failing to find that Michael Black and appellee, Connie Gibson, were living in the same household; and (3) The trial court did not have jurisdiction to modify the definition of cohabitation in the order. We affirm as modified.

The parties were divorced in 1999. The decree ordered Dr. Gibson to pay alimony for November and December of 1998 in the amount of $9000 per month; $3000 per month for twelve months beginning January 1, 1999; $2500 per month for twelve months beginning January 1, 2000; $2000 per month for five years beginning on January 1, 2001; and $1500 per month for four years beginning on January 1, 2006. The decree also included the following court-devised provision:

The alimony will terminate upon either party's death or the remarriage or cohabitation by the Plaintiff [Connie]. Cohabitation means spending at least four nights per week from 12:00 p.m. until 6:00 a.m. in the same household with another party with whom the Plaintiff is not married or related."

On June 4, 1999, an order was filed based upon a joint motion from the parties to correct a clerical mistake concerning the alimony provision. The provision provided, in pertinent part:

Cohabitation means spending at least four (4) nights per week from 12:00 a.m. (midnight) until 6:00 a.m. in the same household with another party of the opposite sex with whom the Plaintiff is not married or related.

(Emphasis added to note changes in decree language). Neither party appealed the original order or the initial changes to the original order.

On June 14, 2002, Dr. Gibson filed a motion to terminate alimony and for reimbursement of alimony, alleging that Ms. Gibson had been cohabitating with Michael Black since July 1999. In that motion, he asserted that because Ms. Gibson was living with Mr. Black, alimony should be terminated and that Ms. Gibson should be required to repay him $81,000 in alimony that he had paid since she had begun such cohabitation.

A return of service form filed in the record of this case states that a Keith C. Friedrich, an investigator, signed the return of service declaring that had served a copy of the motion, along with a notice of hearing set, requests for admissions, and interrogatories "[b]y handing it to the person identified as Connie Gibson" at 7:13 a.m., on June 19, 2002, at 3850 Urban St., Wheatridge, Colorado. On that same date, these documents were faxed to the attorney who had represented Ms. Gibson in the divorce action.

Ms. Gibson filed an answer to Dr. Gibson's motion to terminate alimony on June 21, 2002; however, no answers were filed regarding the requests for admissions or the interrogatories. The requests for admissions consisted of two requests:

(1) Admit that you are cohabitating with Michael Black as that term is defined in the Divorce Decree entered on January 15, 1999, and Order which was entered on June 4, 1999;

(2) Admit you did not notify Defendant you were cohabitating with Michael Black.

On August 8, 2002, Dr. Gordon filed a motion to deem facts admitted and for summary judgment based upon those deemed admissions. Ms. Gibson filed an answer to that motion on August 10, 2002, and an answer to the requests for admission on August 21. She amended her answer to the motion to deem facts admitted and for summary judgment on September 30, 2002, one day prior to trial, denying that she had been served with any requests for admissions and asserting that a factual question existed as to whether she was romantically involved with her tenant. In his reply to her amended answer, Dr. Gordon contended that Ms. Gibson's failure to respond to the requests for admissions deemed them to be admitted and he further contended that, because she was deemed to be cohabitating with Michael Black, there was no factual issue as to whether she was romantically involved with him.

At the hearing, the trial judge denied Dr. Gibson's motion to deem facts admitted. The court accepted Ms. Gibson's explanation that she was not served with the requests for admissions when she was served with the other documents filed in this case. The court noted that given the magnitude of what Ms. Gibson stood to lose, combined with her declaration that she had not received the requests, the court accepted her explanation and refused to doem the requests admitted. In addition, on its own motion, the court expanded the definition of "cohabitation" to provide:

Cohabitation means spending at least four (4) nights per week from 12:00 a.m. (midnight) until 6:00 a.m. in the same household with another party of the opposite sex with whom the Plaintiff is not married or related and with whom the Plaintiff has or has had an intimate or romantic relationship.

(Emphasis added to indicate addition).

The judge also denied Dr. Gibson's motion for summary judgment. After hearing testimony on the motion to terminate alimony, the court denied that motion as well. Dr. Gibson appealed the denial of his motion, asserting three points of error.

We review equity cases such as this de novo on appeal; this court reviews the trial judge's findings of fact and affirms them unless they are clearly erroneous. Cole v. Cole, 82 Ark.App. 47, 110 S.W.3d 310 (2003). To demonstrate that the trial court's ruling was erroneous, an appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Id.

Dr. Gibson first alleges that the trial court erred in not finding the requests for admissions admitted due to Ms. Gibson's failure to file a timely response. He relies upon Rule 36 of the Arkansas Rules of Civil Procedure, specifically the statement that "[t]he matter is admitted unless, within 30 days after service of the request, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection."

Through the years, it has been the policy of our supreme court to require compliance with the rule governing responses to request for admissions by making it a practice of deeming the requests admitted when the responses are not on time. See Womack v. Horton, 283 Ark. 227, 674 S.W.2d 935 (1984). However, the particular facts of each case must be examined and, when the facts warrant, acceptance of late responses is required. Id.

In this case, Ms. Gibson asserted that she did not receive the requests for admissions with the other documents served upon her at her home in Colorado. In the cases cited and relied upon by Dr. Gibson, the only issue was whether the requests had been answered in the time and manner required by Rule 36. We find this case factually similar to Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983). In Beck, there was a factual dispute as to whether the requests for admission were ever received. The trial court accepted the non-receipt as factual, and, in accepting that explanation as the reason that answers to the requests had not been filed, set aside a judgment entered pursuant to the admissions.

Similarly, the trial judge in this case accepted Ms. Gibson's explanation that the requests were not timely answered because she did not receive them at the time the other papers were served upon her. The trial court found this explanation consistent with the fact that Ms. Gibson stood to lose a substantial amount of support in the pending litigation. Therefore, we cannot say that the trial judge's finding was arbitrary or groundless.

For his second point on appeal, Dr. Gibson alleges that the trial court erred in failing to find that Michael Black and Connie Gibson were living in the same household. It is undisputed that Mr. Black and Ms. Gibson were living in the same house. Ms. Gibson testified that Mr. Black was a tenant who paid rent to her for living in her residence. Dr. Gibson characterized this arrangement as Mr. Black contributing financially to the household.

The issue in this case is whether the judge's finding that Connie Gibson and Michael Black were not living in the same household is clearly erroneous. Resolution of this question involves more than a determination of whether they were living in the same house, regardless of whether they were romantically involved. The trial judge referred to the definition of household contained in Black's Law Dictionary and stated "that household means a family living together" and also means "those who dwell under the same roof and compose a family." However, the trial judge further stated that she understood that in this context "to be in the same family, you do not have to be married and you do not have to be related." Thus, the trial judge recognized that factors in addition to residence in the same house were required before Mr. Black could be considered a member of Ms. Gibson's household.

"Household' is commonly and popularly understood as comprising an economic unit. A boarder may reside in one's house, but not in one's household." Smith v. Southern Farm Bureau Casualty Ins. Co., 353 Ark. 188, 198, 114 S.W.3d 205, 210 (2003) (emphasis in original)(J. Corbin, concurring). The majority in Smith recognized that the term "family" has come to mean any group of persons who live, sleep, cook and eat upon the premises "as a single housekeeping unit." The court further found that if...