Olson v. Olson

• Court: Arkansas Supreme Court
• Writing for the Court: COURTNEY HUDSON GOODSON, Associate Justice
• Citation: Olson v. Olson, 2014 Ark. 537, 453 S.W.3d 128 (Ark. 2014)
• Decision Date: 18 December 2014
• Docket Number: No. CV–14–115,CV–14–115
• Parties: Tina Olson, Appellant v. Don Olson, Appellee

2014 Ark. 537

453 S.W.3d 128

Tina Olson, Appellant

v.Don Olson, Appellee

No. CV–14–115

Supreme Court of Arkansas.

Opinion Delivered December 18, 2014

Sanford Law Firm, PLLC, by: Josh Sanford, for appellant.

Dunham & Faught, P.A., by: James Dunham, Russellville, for appellee.

Opinion

COURTNEY HUDSON GOODSON, Associate Justice

Appellant Tina Olson appeals a decree entered by the Pope County Circuit Court granting her amended complaint for divorce on the ground of adultery against appellee Don Olson. For reversal, Tina contends that the circuit court erred (1) by granting the divorce on her amended complaint based on the testimony of Don and his witnesses when she was not present at trial; (2) by dividing the parties' debts and assets pursuant to the divorce or by making an unequal division of marital property; and (3) by dismissing her claim for alimony or by failing to award alimony. We accepted certification of the appeal from the Arkansas Court of Appeals as raising an issue of first impression; therefore, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(b)(1). We reverse and remand on the first point raised on appeal.

Tina initiated this action by filing a complaint for divorce on grounds of general indignities in the Pope County Circuit Court on July 11, 2012. In the complaint, Tina alleged that the parties had married in February 1987, that they had an adult child but no minor children, and that they had separated on the date that she filed the complaint. She also stated that the parties owned both real and personal property that would be subject to division by the court, and she requested alimony. Tina filed an amended complaint on August 21, 2012, in which she asserted that the parties had entered into a covenant of marriage following the passage of the Covenant of Marriage Act of 2001. In this complaint, she alleged that she was entitled to a divorce on the ground of adultery.

After a hearing, the circuit court entered a temporary order on August 30, 2012, granting Tina temporary possession of the marital home, which the parties had listed for sale, and ordering Don to pay all of the parties' bills, in addition to spousal support of $250 per month. On December 11, 2012, the circuit court amended the temporary order by placing Don in possession of the marital home, as Tina had left the state, and by increasing Tina's spousal support to $400 per month. This order also incorporated a three-page list of personal property that the parties had divided by agreement. On January 14, 2013, Tina filed a motion for contempt alleging that Don was delinquent in his payment of spousal support. On February 5, 2013, Don filed a counterclaim for divorce based on the ground of general indignities. The counterclaim did not mention that the parties had entered into a covenant of marriage.

On July 15, 2013, the circuit court notified the parties by letter that the final divorce hearing would be held on October 2, 2013. On that date, Tina failed to appear for trial. At the outset of the hearing, the circuit court inquired as to whether Don wished to proceed on his counterclaim for divorce. Don's counsel replied that it would be necessary to amend the counterclaim to allege that the parties had entered into a covenant of marriage and to allege “specific grounds.”

In his testimony, Don introduced into evidence an exhibit listing the parties' debts, and he asked that any funds Tina received as a result of a medical-device lawsuit be applied toward the payment of their debts. He also stated that the parties' home had sold at a profit of $57,180 and that he had given Tina $30,000 of the proceeds from the sale. Don also testified that the list of property incorporated into the amended temporary order was intended to settle the division of their personal property. He said that, when Tina moved from the marital home, she had left some of her personal property contained on the list. Don stated that he had placed Tina's property in a storage unit, along with his items of property that did not fit in his new residence, at a cost of $45 per month. He further testified that Tina had taken four clocks and a pocket watch that he had inherited and that was designated as his property in their agreement. He testified as to other items of property that Tina had retained contrary to the parties' settlement agreement, including a blender, a television, a DVD player, an autographed picture of John Daly, and books.

With regard to his retirement accounts, Don stated that he and Tina had been married for twenty-six years and that he had been working for Entergy “much longer than that.” He said that he planned to retire the following January, and he expressed the opinion that Tina was entitled to forty percent of his pension, which would amount to approximately $2,000 per month. Don testified that he was not willing to part with any of the funds held in his 401k account.¹

In addition, Don acknowledged that he and Tina had entered into a covenant of marriage. He stated that they had sought professional counseling just prior to their separation in a sincere effort to resolve their marital difficulties. Don also testified that he had committed adultery. At this juncture in the testimony, the circuit court interjected to ask whether Don was going forward with his counterclaim for divorce on general indignities or whether he was admitting Tina's grounds for divorce. Don's counsel responded that he was moving forward on Don's counterclaim, saying, “I don't think I could prosecute hers necessarily.” Counsel added that he was moving orally to amend Don's counterclaim to reflect the ground of adultery “because of the covenant of marriage.” The circuit court granted Don's motion to amend his counterclaim to reflect the covenant of marriage and the ground of adultery. Whereupon, Carrie Clayton testified as to that ground.² Clayton stated that she had engaged in “a sexual relationship with Mr. Olson subsequent to him being married to Mrs. Olson.”

In oral rulings from the bench, the circuit court dismissed Tina's pending motion for contempt and her request for alimony based on her “failure to prosecute” and because she had not requested a continuance. The court granted Don's orally amended counterclaim for divorce on the ground of adultery. The circuit court ordered Tina to return the clocks and the pocket watch that Don had inherited and pursuant to their agreement. Alternatively, if Tina failed to return this property, the court found that the property was worth $2,000, and the court granted judgment in that amount. As for the items of Tina's personal property that Don had placed in storage, the court found that Tina had abandoned this property and that the value of the properly and the storage costs were offset by the items kept by Tina that belonged to Don according to their settlement agreement. The circuit court directed that any proceeds Tina received from the lawsuit were to be applied to the parties' debts and that any remaining debt was to be divided equally. The court awarded Tina forty percent of Don's pension and granted Don's request to retain the entire 401k account.

On October 4, 2013, Don filed a motion pursuant to Rules 59 and 60 of the Arkansas Rules of Civil Procedure to modify the circuit court's oral decision in one respect. Instead of granting him the divorce, he asked the court to award Tina the divorce based on her amended complaint and her ground of adultery. In this motion, Don noted that he had presented evidence both proving and corroborating Tina's grounds for divorce, and he presented as additional evidence the affidavit of Laurie Scallion. In this affidavit, Scallion averred that “Don Olson has told me that within the last fifteen months, he has had a sexual relationship with a girl named Carrie.” On October 10, 2013, the circuit court entered its decree in which the court granted Don's posttrial motion and awarded Tina a divorce on the ground of adultery. With that one alteration, the decree incorporated the court's oral rulings made at the hearing. This timely appeal followed.

As her first point on appeal, Tina contends that the circuit court erred in granting her the divorce when she was not present at the hearing. She argues that she was the real party in interest and that she was the only person who could pursue her claim. In this regard, she asserts that neither Don, who is not a lawyer, nor Don's attorney, because of a conflict of interest, could prosecute her complaint for divorce. Tina asserts that the situation left the circuit court with the options of either continuing the trial to another date, or dismissing her complaint without prejudice pursuant to Rule 41 of the Arkansas Rules of Civil Procedure and allowing Don to proceed with his counterclaim for divorce. With regard to the second option, she points out that Don could not have obtained a divorce on his stated grounds because general indignities is not a ground upon which a covenant of marriage may be dissolved. She also maintains that Don's admission that he committed adultery provides no grounds upon which he could obtain a divorce and that such an admission cannot force a divorce upon a spouse who chooses not to prosecute a claim for divorce. Further, she contends that the evidence failed to establish the ground of adultery because the evidence did not show that Don had committed adultery before she filed the complaint for divorce.

In response, Don contends that Tina's arguments are not preserved for appeal because she did not present them at the hearing or in a posttrial motion. He asserts that Tina's arguments do not call into question the circuit court's subject-matter jurisdiction and that, therefore, the issues she raises cannot be asserted for the first time on appeal. Don also argues that Tina's contentions are without merit because she fully participated in the proceedings leading up to the final hearing, because she repeatedly asked for a divorce,...