McIntyre v. McIntyre

• Decision Date: 12 December 1966
• Docket Number: No. 5--4051,5--4051
• Citation: 241 Ark. 623,410 S.W.2d 117
• Parties: , 241 Ark. 835 Helen Loretta McINTYRE, Appellant, v. Leon Bennett McINTYRE, Appellee.
• Court: Arkansas Supreme Court

Page 117

410 S.W.2d 117

241 Ark. 623, 241 Ark. 835

Helen Loretta McINTYRE, Appellant, v. Leon Bennett McINTYRE, Appellee.

No. 5--4051.

Supreme Court of Arkansas.

Dec. 12, 1966.

As Amended on Denial of Rehearing Jan. 23, 1967.

Neva B. Talley, Little Rock, for appellant.

Fulk, Wood, Lovett, Parham & Mayes, Little Rock, for appellee.

COBB, Justice.

On April 24, 1962, appellant was granted a decree of absolute divorce from appellee. Appellant was awarded custody of the children and was given an allowance of $20.00 per week for their support. Appellant waived any claim to alimony. The decree of divorce incorporated therein the terms of an oral property settlement agreement of the parties.

On November 5, 1965, appellee filed a petition for an order directing appellant to convey to appellee all of her interest in certain real estate held by the parties by the entirety at the time of the decree of divorce.

On November 12, 1965, appellant filed a detailed response to appellee's petition, claiming an undivided one-half interest in the real estate and agreeing to the sale of same provided she be allowed to receive one-half of the proceeds from such sale.

Both parties testified at the hearing, which was held on January 12, 1966. On March 23, 1966, approximately four years after the original decree of divorce, the Chancellor entered a supplemental decree ordering and directing appellant to execute and deliver to appellee a quitclaim deed as to her interest in the real estate held by the entirety, and appellant was directed to comply with the order within thirty days of the entry of the decree. From this decree comes this appeal.

We quote the pertinent provisions of the original decree containing a property settlement agreement between the parties:

'That the defendant owns the following property: one 1960 Ford Falcon automobile; various household furniture and appliance; thirty-nine (39) shares of American Telephone and Telegraph stock and realty described as a forty acre farm and dwelling home, said legal description being: NE 1/4--NW 1/4 Sec. 23 Twp. 3 N., Range 16 W, Pulaski County, Arkansas.

'That the parties hereto have agreed to the following property settlement: That the plaintiff is to receive the 1962 Ford Falcon automobile on which there remains an unpaid mortgage. The plaintiff (appellant) is to make payments on the car note for the months of April, May and June, 1962, and thereafter the defendant is to make the monthly payments until said car note shall have been paid in full. The defendant (appellee) is to receive the 1960 Ford Falcon automobile. The plaintiff is to receive the thirty-nine shares of American Telephone and Telegraph stock on which there is a remaining balance owed and the defendant has agreed to pay this balance by July, 1962. The plaintiff is to receive all furniture and appliances and that the plaintiff shall remain in possession of the realty described in enumerated paragraph VI above until the balance due on the American Telephone and Telegraph shares of stock has been paid in full, or until the realty is sold, whichever occurs first. * * *' (emphasis ours)

We now quote the pertinent provisions of the supplemental decree:

'1. A decree was entered on April 24, 1962, under which a divorce was granted to the plaintiff, and in which the court found that parties hereto had entered into a property settlement agreement. 'Said decree recites that defendant owned certain personal property together with a 40-acre farm and dwelling house described as: The NE 1/4 NW 1/4 Sec. 23, T 3N R 16W, Pulaski County, Arkansas, By the terms of said decree the court retained jurisdiction for the purpose of enforcing the equitable rights of the parties hereto.

'2. 'The court finds said decree erroneously recited the sole ownership of said real estate as being in the defendant, when in fact the title thereto had been vested in said husband and wife jointly as an estate by the entirety. (emphasis ours)

'3. 'The court further finds that under said property settlement agreement the defendant, in consideration of the transfer of certain personal property to the plaintiff, was to become the sole owner of said real estate free and clear of any and all claims thereto on the part of the plaintiff, and that plaintiff undertook to and obligated herself by the terms of said agreement to convey to the defendant by appropriate means all of her right, title and interest in and to said real estate.

'4. 'The court finds that the defendants fully discharged his obligations to the plaintiff under said property settlement agreement by delivering to her all of the property described therein was was to be received by her in accordance with the agreement.

'5. 'The court finds that the plaintiff has failed to convey her interest in said real estate to the defendant in accordance with the property settlement agreement, but is in fact now asserting in this action that she is still an owner with respect to said property by virtue of the deed which originally created the estate by entirety.

"It is therefore by the court considered, ordered, adjudged and decreed that Helen Loretta McIntyre execute and deliver to Leon Bennett McIntyre a quitclaim deed conveying to the said Leon Bennett McIntyre the NE 1/4 NW 1/4 Sec. 23, T. 3N, R 16W, Pulaski County, Arkansas, and that she perform said act within 30 days from the date of this decree".

The language of the original decree provided no dispositive action as to the real estate here at issue. It did place appellant in possession of the real estate pending sale. The supplemental decree substantially added to and reformed the original decree in that it ordered appellant to quitclaim...