Murry v. Mason, CA

• Decision Date: 12 May 1993
• Docket Number: No. CA,CA
• Citation: 852 S.W.2d 830,42 Ark.App. 48
• Parties: Earnest MURRY, Appellant, v. Erma MASON, Appellee. 92-1441.
• Court: Arkansas Court of Appeals

Page 830

852 S.W.2d 830

42 Ark.App. 48

Earnest MURRY, Appellant, v. Erma MASON, Appellee.

No. CA 92-1441.

Court of Appeals of Arkansas En Banc.

May 12, 1993.

Edwin A. Keaton, Camden, for appellant.

Richard L. Proctor, Wynne, for appellee.

COOPER, Judge.

The appellee in this civil case filed a petition to quiet title to property originally owned by the parties as tenants by the entirety. The chancellor denied the appellee's petition, holding that the property was incapable of division in kind and ordering that it be sold. After payment of costs and attorney's fees, the proceeds were to be used to reimburse the appellee for the mortgage and tax payments she had made since December 14, 1983; any remaining proceeds were to be divided equally between the parties. The chancellor also awarded the appellee an attorney's fee of $1,000.00. The appellant brings this appeal from the chancellor's distribution of the proceeds. The appellee cross-appeals the denial of her quiet title petition. We find merit in the appellee's argument on cross-appeal and reverse and remand.

The appellee sued the appellant for divorce on October 24, 1983. In her complaint, the appellee alleged that "[t]here is property in dispute, which will require distribution by the court." The appellant was duly served with the complaint but failed to answer. On December 14, 1983, the chancellor awarded the appellee a decree of divorce. In the decree, the chancellor held that "the home formerly occupied by the parties in Earle, Arkansas, was and is the sole, absolute property of the appellee, and the appellant has no interest in said property of any nature." The appellant received a copy of this decree several days after it was entered but did not appeal. Thereafter, the appellee and the parties' minor children continued to occupy the Earle property, and the appellee paid all the taxes and mortgage payments on the property as well as made improvements to the property. On March 1, 1992, the appellee petitioned the Crittenden County Chancery Court to quiet title to the Earle property in her, alleging that she had acquired absolute title to the property by a decree of divorce, entered December 14, 1983. The appellant denied that the appellee was entitled to have title quieted in her and counterclaimed, alleging that the Earle property was owned by the parties as tenants by the entirety until their divorce, at which time their ownership converted to a tenancy in common. The appellant prayed that the property be sold and the proceeds divided according to the interests of the parties.

At trial, the appellee argued that title to the property should be quieted in her under four separate theories: res judicata, adverse possession, estoppel, and laches. The appellant argued that the chancellor did not have the authority to award property held as tenants by the entirety solely to the appellee as her separate property and, therefore, the award was void and ownership of the property was converted to a tenancy in common. The appellant's attorney further argued that the divorce decree did not apply to the Earle property.

Under the claim preclusion aspect of the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Daley v. City of Little Rock, 36 Ark.App. 80, 82, 818 S.W.2d 259, 260 (1991). Res judicata bars not only the re-litigation of claims which were actually litigated in the first suit but also those which could have been litigated. Id. The doctrine of res judicata applies only when the party against whom the earlier decision is being asserted had a fair and full opportunity to litigate the issue in question; Cater v. Cater, 311 Ark. 627, 632, 846 S.W.2d 173, 175-76 (1993); however, a judgment by default is just as binding and enforceable as a judgment entered after a trial on the merits in a case, and a defense not presented before the entry of a default decree is barred by the doctrine of res judicata. Williams v. Connecticut Gen. Life Ins. Co., 26 Ark.App. 59, 61, 759 S.W.2d 815, 817 (1988).

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