Jones v. Jones

• Decision Date: 14 October 1987
• Docket Number: No. CA,CA
• Citation: Jones v. Jones, 737 S.W.2d 654, 22 Ark.App. 179 (Ark. App. 1987)
• Parties: Pauline JONES (Canady), Appellant, v. Doyle JONES, Appellee. 87-38.
• Court: Arkansas Court of Appeals

Page 654

737 S.W.2d 654

22 Ark.App. 179

Pauline JONES (Canady), Appellant, v. Doyle JONES, Appellee.

No. CA 87-38.

Court of Appeals of Arkansas En Banc.

Oct. 14, 1987.

Rehearing Denied Nov. 11, 1987.

Samuel A. Perroni, Rita S. Looney, S. Randolph Looney, Little Rock, for appellant.

Howard C. Yates, Morrilton, for appellee.

CORBIN, Chief Judge.

This appeal comes to us from the Pulaski County Chancery Court. Appellant, Pauline Jones (Canady), appeals the chancellor's ruling which ordered that the parties' property be sold, with the proceeds to be equally divided after reduction for costs of the sale and for $1,500.00 back child support due to appellant for the support of their handicapped child. We affirm as modified.

The parties were divorced on August 25, 1965, with possession of the parties' home awarded to appellant until further orders of the court. In 1985, the handicapped child moved out of the home and the appellant remarried and remained in possession of the property. On March 10, 1986, appellee filed a petition seeking to have the parties' home sold and the proceeds divided. On April 10, 1986, appellant filed her response and counterclaim, seeking unpaid alimony and child support; or, in the alternative, these amounts in set-off against any amounts due appellee as his interest in the home. The unpaid alimony appellant prayed for was in the amount of $900.00, the unpaid child support was $11,400.00. On September 23, 1986, appellant filed an amended response to appellee's petition seeking the value of improvements and the amounts of repairs made and taxes paid on the property as a set-off against appellee's share of the sales proceeds.

The chancellor's order, entered on October 6, 1986, held that appellant's counterclaim for alimony and child support was barred by the statute of limitations, excluding that portion of the child support which accrued in the immediately preceding five years. The court held that the parties' ownership of the property in question remained as tenants by the entirety and that appellant's counterclaim for the enhanced value of the property due to improvements made and property taxes would not be allowed under the Betterment Act. The court ruled that it would be contrary to the law to consider appellant's equitable claims based on the doctrines of unclean hands and laches. Therefore, appellant's counterclaim was denied.

Appellant raises the following points for reversal: (1) The trial court erred when it allowed the statute of limitations to bar appellant's claim for unpaid alimony and child support asserted as a defensive set-off against appellee's claim to one-half of the sales proceeds from a judicial sale of the house as a final property settlement in the divorce; (2) the trial court erred when it disallowed appellant's counterclaim for an amount equal to the enhanced value of the property due to improvements made by appellant under the Betterment Act as a set-off against appellee's share of the sales proceeds; and (3) the trial court erred when it disallowed appellant's equitable claims, based on the doctrine of laches and the doctrine of unclean hands, in an amount equal to unpaid alimony and child support as well as the enhanced value of the property due to improvements made by appellant.

In her first point for reversal, appellant alleges that the trial court erred by allowing the statute of limitations to bar her claim for unpaid alimony and child support asserted as a defensive set-off against appellee's claim to one half of the sales proceeds from a judicial sale of the house. The statutory authority is Arkansas Statutes Annotated § 37-233 (Repl.1962) which provides:

Limitations apply to demands by way of set-off.--The provisions of this act shall be deemed and taken to apply to the case of any demand alleged by way of set-off on the part of any defendant, either by plea, notice or otherwise, provided however that any demand, right or cause of action, regardless of how same may have arisen, may be asserted by way of set-off in any action to the extent of the plaintiffs demand.

In Little Rock Crate & Basket Co. v. Young, 284 Ark. 295, 681 S.W.2d 388 (1984), the appellee filed a complaint in 1981 to recover $7,207.20 as the purchase price of logs he sold to the appellant in 1979. The appellant's answer denied the appellee's claim and asserted a $5,000 set-off arising from the appellant's sale of a core chipper to the appellee in 1972, a claim apparently barred by limitations. On appellee's motion for summary judgment,...