Skokos v. Skokos

• Decision Date: 16 April 1998
• Docket Number: No. 95-1029,95-1029
• Citation: 332 Ark. 520,968 S.W.2d 26
• Parties: Pamela F. SKOKOS, Appellant, v. Theodore C. SKOKOS, Appellee.
• Court: Arkansas Supreme Court

Page 26

968 S.W.2d 26

332 Ark. 520

Pamela F. SKOKOS, Appellant, v. Theodore C. SKOKOS, Appellee.

No. 95-1029.

Supreme Court of Arkansas.

April 16, 1998.

Order Granting Rehearing June 4, 1998.

Henry Hodges, Robert L. Robinson, Jr., Little Rock, for Appellant.

Philip E. Dixon, Monte D. Estes, Judson C. Kidd, Little Rock, for Appellee.

NEWBERN, Justice.

Pamela F. Skokos, the appellant, filed a complaint for divorce against Theodore C. Skokos, the appellee, on June 1, 1993. Custody and property issues were litigated before Chancellor Alice Gray in hearings that were protracted and acrimonious. The final decree, entered on March 30, 1995, granted a divorce to Ms. Skokos, awarded custody of the parties' minor child to Mr. Skokos, and divided property. Prior to the entry of the decree, while the case was pending in the Chancery Court, the parties brought matters before this Court for resolution. See Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1994)(denying Ms. Skokos's petition for writ of certiorari to disqualify Chancellor Gray, Mr. Skokos's attorney, and attorney ad litem ); Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995)(affirming in part and reversing in part on Ms. Skokos's counsel's interlocutory appeal from contempt citations).

Following entry of the final decree, Ms. Skokos filed on August 14, 1995, a motion to vacate the judgment under Ark. R. Civ.P. 60. Ms. Skokos was unable to obtain a hearing and ruling on the Rule 60 motion, and she appealed to this Court and asked that the case be remanded for the adjudication of that motion. We granted her request in Skokos v. Skokos, 322 Ark. 563, 909 S.W.2d 653 (1995). Ms. Skokos again moved that we disqualify Chancellor Gray, who, in her response to Ms. Skokos's motion, announced her decision to recuse. We accepted Chancellor Gray's recusal and assigned Chancellor Jim Hannah to preside on remand. Chancellor Hannah held a hearing on Ms. Skokos's Rule 60 motion and denied it in an order filed on July 17, 1996.

Ms. Skokos now appeals from the final decree entered by Chancellor Gray and the order entered by Chancellor Hannah denying her motion to set aside the decree.

In seeking reversal of the decree, Ms. Skokos first argues that the Chancellor erroneously determined that the Skokoses had made an effective gift of three of their residences, held as tenancies by the entirety, to "qualified personal residence trusts" and that the residences were owned by the trusts, rather than the Skokoses, and thus were not subject to division under Ark.Code Ann. §§ 9-12-315 and 9-12-317 (Repl.1993 and Supp.1997). Second, she argues that the Chancellor undervalued the Skokoses' shares in two cellular-telephone companies as a result of erroneous evidentiary rulings excluding expert testimony offered by Ms. Skokos and limiting her cross-examination of Mr. Skokos's expert witness. Third, Ms. Skokos argues that the Chancellor erred in rejecting her claim of entitlement to a "surcharge" or "reimbursement" for allegedly "improper" payments made by Mr. Skokos with marital funds. Fourth, she argues that Chancellor Gray erred by refusing to recuse.

Ms. Skokos further asserts that the judgment should have been vacated or set aside under Ark. R. Civ. P. 60(c)(4) on account of what she views as "extrinsic fraud" practiced upon the Chancery Court by one of Mr. Skokos's trial counsel and the attorney ad litem appointed to represent the minor child. Ms. Skokos does not seek reversal of Chancellor Gray's custody ruling or maintain that she is entitled under Rule 60 to relief from that part of the judgment granting her a divorce and vesting Mr. Skokos with custody of the minor child.

Mr. Skokos urges an affirmance on these points but maintains as a preliminary matter that Ms. Skokos waived her right to bring this appeal when she accepted over $6 million in cash or other assets that Mr. Skokos conveyed to her in accordance with the property division prescribed by Chancellor Gray's decree.

We conclude that some, but not all, of Ms. Skokos's arguments have merit. Thus, we affirm the decree in part and reverse it in part and remand the case for further proceedings consistent with this opinion.

1. Waiver of appeal

As to Mr. Skokos's assertion that Ms. Skokos waived her right to appeal when she accepted over $6 million in cash and other assets provided in the decree, we hold that he waived his right to contend the appeal is barred. We do conclude that Ms. Skokos is barred from appealing from the ruling made on her request that the decree be set aside pursuant to Rule 60, as that was not included in the waiver.

An appellant "waives his right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the appeal." Shepherd v. State Auto Property & Cas. Ins. Co., 312 Ark. 502, 509, 850 S.W.2d 324, 327 (1993), quoting Bolen v. Cumby, 53 Ark. 514, 515, 14 S.W. 926, 927 (1890). See also Jones v. Rogers, 222 Ark. 523, 525, 261 S.W.2d 649, 650 (1953) (stating "when an appellant accepts a portion of a challenged order inconsistent with his appeal, he thereby waives his appeal"). No doubt Ms. Skokos's acceptance of benefits from some portions of the decree would bar her appeal but for the agreement entered between her and Mr. Skokos to the contrary.

The agreement at issue here was signed by Henry Hodges, counsel for Ms. Skokos, and Judson C. Kidd, counsel for Mr. Skokos. The agreement is contained in the following letter, dated April 13, 1995, from Mr. Hodges to Mr. Kidd:

HAND DELIVERED

. . . . .

Dear Jud:

This will confirm our various discussions concerning your delivery of checks, stock certificates, and other property pursuant to the Court's Decree entered March 30, 1995. It is understood and agreed that Pam is accepting these funds and these properties subject to a reconciliation of the accounting ordered to be furnished by Mr. Skokos and, of course, subject to her right to appeal the Decree. In other words, it is understood there is no prejudice to Pam's right to appeal and Pam's right to be furnished an accounting that is acceptable according to the terms of the Decree.

Kind regards,

/s/ Henry

Henry Hodges

. . . . .

[Emphasis added]

The following appears below Mr. Hodges's signature:

ACCEPTED AND AGREED TO:

/s/ Judson C. Kidd

Judson C. Kidd

Although we are aware of no case on point, we can conceive of no reason to reject the position that an appellee may, as Mr. Skokos has done in part, "waive" his right to declare a waiver of appeal on the part of an appellant. Thus, an appeal should not be dismissed where, as here, the appellant has acted in reliance upon the appellee's promise that her acceptance of payment under the judgment will not prejudice her right to appeal.

Mr. Skokos contends, however, that the agreement merely conferred on Ms. Skokos the right to question a forthcoming accounting of Mr. Skokos's expenditure of marital funds during the pendency of the divorce action and did not confer the right to appeal the decree. Mr. Skokos asserts, in the alternative, that the agreement is ambiguous and, in accordance with Don Gilstrap Builders v. Jackson, 269 Ark. 876, 601 S.W.2d 270 (1980), should be construed against Ms. Skokos, the drafter. Mr. Skokos claims that he would not have made any payment to Ms. Skokos under the decree "if he had thought [Ms. Skokos] was reserving a right to appeal to force him to make even more payments."

As we read the agreement "and consider it from its four corners, as we must, its terms appear clear and unambiguous." Barton v. Sturgis, 224 Ark. 924, 927-28, 278 S.W.2d 114, 117 (1955). The agreement clearly and unambiguously states that Ms. Skokos would accept payment from Mr. Skokos subject to her right to an accounting and her right to appeal the decree. It is our duty to construe these unambiguous terms "according to the plain meaning of the language employed," Roth v. Prewitt, 225 Ark. 466, 469, 283 S.W.2d 155, 157 (1955); see Unigard Security Ins. Co. v. Murphy Oil USA, Inc., 331 Ark. 211, 221, 962 S.W.2d 735, 739-40 (1998), and thus we hold that the agreement permits Ms. Skokos to appeal the decree in spite of her acceptance of benefits under it. Mr. Skokos's assertion that the agreement means anything else is, at best, facetious.

Whether the agreement permits Ms. Skokos to appeal from Chancellor Hannah's order denying relief under Rule 60 is a different matter. The agreement was signed on April 13, 1995, well before the filing of the Rule 60 motion on August 14, 1995, and the filing of Chancellor Hannah's order on July 17, 1996. By its terms, the agreement allows Ms. Skokos to appeal only the "decree." The agreement does not contemplate post-decree motions. Nothing in the text of the agreement expressly discusses, let alone permits, an appeal from a ruling on any type of post-decree motion. The parties could have included language permitting such an appeal had they chosen to do so.

Accordingly, we hold that the "right to appeal the decree" conferred on Ms. Skokos by the agreement does not encompass the right to appeal the order denying her motion under Rule 60 to vacate the judgment. As Ms. Skokos's acceptance of over $6 million under the judgment is inconsistent with her argument that the judgment should be vacated under Rule 60, we conclude the point is waived.

2. Personal residences

The Skokoses acquired three personal residences during their marriage--# 10 Edgehill Road in Little Rock, and 131 Hosta Bay and 1519 Long Point Lane in Hot Springs. Each was held by them as tenants by the entireties. The Chancellor found that they were not marital property at the time of the divorce because the Skokoses had conveyed them to qualified personal residence trusts ("QPRTs") after agreeing between themselves to do so. The QPRTs were created apparently for the purpose of avoiding taxation (i.e., estate planning) but to maintain family control of the residences.

Joe Gelzine, an attorney who...