Hurst v. Hurst, CA

• Court: Arkansas Court of Appeals
• Writing for the Court: HAYS
• Citation: Hurst v. Hurst, 602 S.W.2d 137, 269 Ark. 778 (Ark. App. 1980)
• Decision Date: 18 June 1980
• Docket Number: No. CA,CA
• Parties: Q. Byrum HURST, Jr., Appellant, v. Margaret HURST, Appellee. 80-12.

Page 137

602 S.W.2d 137

269 Ark. 778

Q. Byrum HURST, Jr., Appellant, v. Margaret HURST, Appellee.

No. CA 80-12.

Court of Appeals of Arkansas.

June 18, 1980.

John T. Harmon, North Little Rock, Thomas M. Carpenter, Little Rock, for appellant.

House, Holmes & Jewell by Anne E. Owings, Little Rock, for appellee.

HAYS, Judge.

Appellant brings this appeal seeking to reverse a modification by the Chancellor of a separation agreement in a divorce suit entered into between the parties on August 30, 1978. The separation agreement was incorporated by reference in a decree of divorce entered September 1, 1978.

On August 28, 1978, the appellant wrote a letter to the appellee confirming an oral agreement (purportedly supplemental to the separation agreement), which recited that the appellee could use the membership in the Hot Springs Country Club, particularly for the children's recreation (though not for her own personal benefits); stating that appellant would assist appellee with additional financial payments of not less than $50.00 nor more than $100.00 per month to help with "utility bills, etc." ; that appellee would have the use of a gasoline credit card and reciting other provisions not essential to this opinion.

The essential elements of the separation agreement provided that the appellant would pay $125.00 per week to appellee for the support of three minor children, together with temporary alimony in the sum of $539.85 per month until the parties' residence could be sold, at which time the child support would be $300.00 and alimony would be $500.00 per month so long as appellee remained unmarried. The agreement contained provisions for a sale of the parties' residence with the appellee to receive not less than $15,000.00 as her equity; that the appellant would pay "all bills incurred by the parties to date" and would be responsible for "any medical or dental bills incurred by the minor children". Other provisions are not particularly relevant to the issues on appeal.

In December, 1978, appellant wrote appellee that after January 1, he would no longer pay any amounts to appellee except as ordered in the divorce decree. On February 26, 1979, the appellant notified the appellee by letter that he was exercising his right under the agreement to purchase appellee's interest in the home and announcing that he would tender a cashier's check in the sum of $15,000.00 on March 1, 1979. The letter stated that appellee would have until April 15 to vacate the dwelling.

On February 27, 1979, appellee filed a petition alleging that at the time the property settlement agreement was entered into the appellee was induced to sign the agreement against her will and that appellant represented to appellee that he was willing to undertake obligations beyond those in the agreement but that subsequently the appellant denied any further obligation; that the written agreement approved by the court did not correctly reflect the agreement between the parties and was entered into as a result of fraud. Alternatively, appellee sought modification of the terms of the decree and claimed an arrearage in alimony payments of $3,239.10. The appellant denied the allegations of the petition and by counter-petition asked for a specific enforcement of the sale of appellee's interest in the home to appellant upon his tender of the sum of $15,000.00.

The case was tried on May 28, 1979, at the close of which the Chancellor made an extensive and detailed entry on the docket finding that appellee had failed to show that the agreement was procured by fraud but found that the agreement was modified by the letter of August 28, 1978 and by "other oral statements"; that the alimony payments of $539.85 were satisfied by the mortgage payments and consequently no arrearage in alimony existed; that appellee should sign a quitclaim deed to the dwelling and receive $15,000.00 therefor and appellant would pay $200.00 per month child support, tuition for a private school, $75.00 a month for utility bills and $75.00 per month for gasoline bills, both sums to be considered as child support. The court directed appellee's attorney to prepare the decree and fixed a fee of $3,600.00 for appellee's attorneys to be paid one-half by appellant and one-half by appellee.

The modified decree was prepared, approved and signed by the Chancellor on June 29, 1979, and entered nunc pro tunc as of May 28, 1979. Notice of appeal was filed by appellant on August 1, 1979.

Before dealing with appellant's arguments on appeal, appellee contends that the notice of appeal was not timely filed. The argument is that the judgment was entered on the docket on May 28, 1979 and inasmuch as the notice of appeal was not filed until August 1, 1979, considerably more than thirty days elapsed between the docket entry and the notice of appeal. Appellee's brief cites Cranna v. Long, 225 Ark. 153, 279 S.W.2d 828 (1955) stating that the time for filing notice of appeal runs from the date on which the judgment is filed for entry with the clerk. However, in oral argument, appellee contends that where, as here, the court enters its order on the docket at the close of a hearing, which counsel for both sides observed, then the time for filing notice of appeal runs from the entry on the docket and not from the time the judgment is filed with the clerk. We find the argument to be without merit. In the first place, the court's own docket entry recites that appellee's counsel would prepare the decree thus challenging the argument that both sides were under the impression that the docket entry was to be the final and only judgment in the case. Secondly, the decision in Cranna v. Long states plainly that the crucial date is the date the judgment is filed with the clerk. Rule 3(b) of the Rules of Appellate Procedure, which became effective on July 1, 1979, recites: "An appeal shall be taken by filing a notice of appeal with the clerk of the court which entered the judgment, decree or order from which the appeal is taken." Rule 4(a) recites, in part, that a notice of appeal "shall be filed within thirty days from the entry of the judgment, decree or order appealed from." Cranna v. Long, supra, although decided in 1955, interpreted Section 2 of Act 555 of 1953 (containing language almost identical to that of Rule 4(a) by construing the words "entry of the judgment or decree appealed from " as meaning the filing of the judgment with the clerk for entry. To the same effect see Norfleet v. Norfleet, 223 Ark. 751, 268 S.W.2d 387 (1954). There is nothing to indicate any departure from the well-established view of fixing the time for filing notice of appeal from the date on which the judgment, decree or order is filed with the clerk was intended by the language of Rule 3. Thus appellee's arguments that the appeal should be dismissed is lacking in merit.

Returning to appellant's arguments on appeal, two points are asserted: first, that the Chancellor erred in modifying the decree and two, that the Chancellor erred in awarding an excessive fee to appellee's counsel.

I.

The appellant contends that the agreement between the parties was an independent contract incorporated into the decree of divorce and approved as such by the court, that under the rule announced in Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409 (1953) and other decisions of the Arkansas Supreme Court, an agreement of this type cannot be modified or that if it is not an independent contract, its incorporation in the decree makes it modifiable only on a showing of changed circumstances, which he insists are not present. See also Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700 (1908), and Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439 (1950). The appellee does not confront this argument, preferring to argue that the modification was based not upon changed circumstances, but rather upon a finding that the parties themselves had modified the written argument both verbally and in writing. We agree with appellee, in part, that some modification of the agreement was made by the parties themselves; however, the question before us is whether the Chancellor has properly modified the decree. To find his modification of the child support aspect was correct, there must be evidence in the record of changed circumstances as required by numerous decisions of the Arkansas Supreme Court.

Appellant contends that the changed circumstances which are essential to modification should be in the form of increased or decreased earnings by one parent or increased expenses by the other and while this is very often the case, nowhere do we find in the numerous decisions on the subject, that these considerations alone merit an increase or decrease in child support. To the contrary, the courts have considered a very wide range of circumstances in dealing with the question of modification ranging from remarriage by one parent (Barnes v. Barnes, 246 Ark. 624, 439 S.W.2d 37 (1969)) to the absence of good faith by the father in furnishing information regarding his financial affairs (Toebe v. Toebe, 225 Minn. 323, 30 N.W.2d 585). Indeed, C.J.S. Vol. 27(b), Section 322(1), p. 680, describes the power of the court to modify child support as being "broad":

The broad powers of a court to revise and alter an order or decree...