Tiner v. Tiner

• Decision Date: 12 September 2012
• Docket Number: No. CA 11–1175.,CA 11–1175.
• Citation: 422 S.W.3d 178,2012 Ark. App. 483
• Parties: Betty TINER, Appellant v. William Joe “Bill” TINER, Appellee.
• Court: Arkansas Court of Appeals

2012 Ark. App. 483

422 S.W.3d 178

Betty TINER, Appellant

v.William Joe “Bill” TINER, Appellee.

No. CA 11–1175.

Court of Appeals of Arkansas.

Sept. 12, 2012.

Satterfield Law Firm, PLC, by: G. Randolph “Randy” Satterfield, Little Rock and Laura E. Levine, for appellant.

Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Traci LaCerra, North Little Rock and Mary Claire McLaurin, for appellee.

DOUG MARTIN, Judge.

This is appellant Betty Tiner's second appeal to this court in her efforts to enforce a property settlement agreement that was incorporated into a divorce decree, in which appellee William Joe (“Bill”) Tiner agreed to pay Betty a lump sum of $400,000 in exchange for Betty's one-half interest in real property and assets belonging to the couple's business, Benton Transmission. On remand from this court, the circuit court found Bill in contempt for failing to abide by the agreement's terms, for which the circuit court purported to provide two remedies: (1) the circuit court granted Betty judgment for the balance owed by Bill for Betty's one-half interest in the parties' business assets, and (2) the circuit court ordered Bill to pay the judgment in $3,000 monthly payments until the judgment with interest is paid in full, along with other financial obligations that are not the subject of this appeal. ¹ Betty raisestwo arguments on appeal: (1) the circuit court erred in modifying the parties' property settlement agreement, which provided for payment in a lump sum, as opposed to monthly installments, and (2) the circuit court failed to consider and discuss all of the relevant factors in awarding an attorney's fee. We agree with Betty on the first point, and therefore reverse and remand. As for Betty's second point, we overrule our decision in Stout v. Stout, 2011 Ark. App. 201, 378 S.W.3d 844, and affirm the award of attorney's fees.

I. Property Settlement Agreement

Paragraph three of the “First Amended and Substituted Decree of Absolute Divorce,” provides:

The parties were sworn, listened to the terms of their agreement property settlement agreement [sic] as it was read into the record of this Court in each of their, their counsels [sic], presence, and then both Plaintiff and Defendant testified, under oath, that they understood all the terms of their agreement and that the terms of the agreement were contractual, that neither party was being forced into, or entering into the same under duress, but it was a voluntary undertaking which they each requested the Court to approve to forever settle all of their marital property rights and allocation of marital debt.

In the following paragraph, under the heading “Property Settlement Agreement,” the decree provides:

4. The Court now, having reviewed the terms of the parties' property settlement agreement which is set-forth below, which forever settles the respective rights and claims of each party in and to property and other matters, hereby finds the same to be fair and equitable, that it should be approved and confirmed....

A section entitled “Property Settlement Consideration” provides:

9. In consideration for the transfer and conveyance to Defendant William Tiner of Plaintiff Betty Tiner's one-half ( 1/2) interest in the above described marital real property and Benton Transmission assets, Defendant William Tiner agrees to pay Plaintiff Betty Tiner, who agrees to accept, a bargained for specific sum for property settlement in exchange for all of Plaintiff Betty Tiner's right, title and interest in all the parties' real property and Benton Transmission assets. This specific total sum is FOUR HUNDRED THOUSAND DOLLARS ($400,000.00); subject to, and conditioned upon, the Defendant William Tiner timely paying the above lump sum property settlement funds on of [sic] before July 16, 2009, which is thirty (30) days from date of the final divorce hearing.

....

That the Plaintiff Betty Tiner specifically retains title and ownership in the aforementioned real estate assets, as tenant-in-common by operation of law, until she receives full and timely payment of $400,000.00 lump sum portion of her property settlement funds she is due under this agreement. Upon Defendant William Tiner's full and timely payment of all the above described lump sum property settlement funds, Plaintiff Betty Tiner shall grant, convey, and transfer, by Quitclaim Deed, all of her right, title, equity, and interest in the parties' real properties described above, and any and all other documents necessary to transfer those real estate and Benton Transmission assets to Defendant William Tiner, or any other designated person or entity as he may direct.

....

IT IS FURTHER ORDERED that the Property Settlement Agreement referencedabove is incorporated by reference herein and is adopted by this Court, but not merged into this Decree; and the parties are ordered to abide by the terms of said Property Settlement Agreement.

(Emphasis in original.)

II. Background

The following is a brief discussion of what occurred with regard to Betty's first appeal to this court in Tiner v. Tiner, 2011 Ark. App. 478, 385 S.W.3d 326. The final divorce decree, setting forth the above terms of the parties' property settlement agreement was entered on July 29, 2009. On October 19, 2010, Betty moved to enforce the decree, for contempt sanctions, and for a writ of immediate execution. The circuit court initially granted the writ of execution on Bill's one-half interest in Benton Transmission, but, on October 22, 2010, the circuit court granted Bill's emergency motion to set aside the writ. On October 27, 2010, Betty filed a motion requesting that the circuit court reconsider its ruling setting aside the writ of execution. The circuit court, however, in a letter opinion dated November 4, 2010, declined to modify its October 22, 2010 order and noted that the parties would have the opportunity at a future hearing to present arguments as to how the circuit court should enforce the terms of the property settlement agreement.

At a hearing held on November 8, 2010, Bill admitted that he had agreed to pay Betty $400,000 in a lump sum according to the terms of the property settlement agreement, yet he did not make that payment. Bill testified that he was scheduled to close on a loan through which he was to borrow the money to pay the lump sum. Instead of closing on that loan, however, Bill filed for bankruptcy. According to Bill, he “got thrown out [of bankruptcy court.]” Bill claimed that, since that time, he attempted to borrow money to pay the lump sum but had been turned down by several banks. Bill testified that Benton Transmission earned a profit of $800,000 in 2009 and over $415,000 only six months into 2010. Bill further testified that he understood that he entered into a contract with Betty in the divorce proceedings and agreed to pay a lump sum but that he was requesting that the circuit court change the parties' contract. Bill stated that, if the court were to permit him to pay the lump sum on a monthly basis, “$2,000 wouldn't be a problem.”

Betty testified that she was married to Bill for over seventeen years. Betty testified, “I do not trust [Bill]. I want all of [the lump sum] at one time so I can put closure to two and a half years of misery that he has put me through.”

From the bench, the trial judge expressed his concern about ordering that all of Bill's property be sold to satisfy his obligation to pay the lump sum or incarcerating Bill until he pays the lump sum. The trial judge did not think either option was “a good idea” because he “would be putting the future obligations of Mr. Tiner towards Ms. Tiner at risk and I would be bankrupting Mr. Tiner.” The trial judge, however, found that “there is probably a much greater ability to pay [on Bill's part] than what has been stated from the stand.” The trial judge then ordered Bill to pay, among other things, $3,000 per month until the remainder of the lump sum, $349,286, is paid in full.

On November 22, 2010, Betty filed a notice of appeal from the circuit court's order dated October 22, 2010, as well as the oral rulings issued from the bench at the November 8, 2010 hearing, for which an order had not yet been entered. Betty lodged the record on appeal with this court on December 21, 2010. On January 14, 2011, the circuit court entered a judgment ordering payment as prescribed in its oral ruling from the bench.

In our opinion in Tiner, supra, delivered on June 29, 2011, this court affirmed the circuit court's decision setting aside Betty's writ of execution, albeit on a different basis than that on which the circuit court relied. This court held that there was no judgment upon which to execute, in that the property settlement agreement was an independent contract between the parties and not a judgment, which required language clearly specifying the relief that was granted after determination and inquiry. This court then dismissed Betty's appeal with respect to the judgment that was subsequently granted on January 14, 2011, because the circuit court lost jurisdiction to act once Betty lodged the record on appeal with this court.² This court was thus precluded from considering the merits of Betty's argument until now.

On August 9, 2011, Betty filed an amended motion to enforce the divorce decree, for contempt, and for an expedited order for an immediate writ of execution. A hearing was held on September 7, 2011, at which Betty testified as to additional instances of Bill's contempt and testified that, while Bill had timely paid the $3,000 installments, he did not pay the other amounts ordered such that Betty was in danger of having her assets seized. Also, Betty testified that Bill owed $365,561.93, as set forth in a document entitled “Plaintiff's Judgment Principal and Interest Calculations” that was introduced into evidence. On September 16, 2011, the circuit court held Bill in contempt for failing to abide by the terms of the property settlement...