Toombs v. Toombs

• Court: Arkansas Court of Appeals
• Writing for the Court: RAYMOND R. ABRAMSON.
• Citation: Toombs v. Toombs, 2010 Ark. App. 858, CA10-272 (Ark. App. Dec 15, 2010)
• Decision Date: 15 December 2010
• Docket Number: CA10-272
• Parties: ELIZABETH TOOMBS, APPELLANT v. TODD TOOMBS, APPELLEE

2010 Ark. App. 858

ELIZABETH TOOMBS, APPELLANT

v.TODD TOOMBS, APPELLEE

CA10-272

ARKANSAS COURT OF APPEALS DIVISION I

Opinion Delivered DECEMBER 15, 2010

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. DR-2009-248-6]

HONORABLE R. DOUGLAS SCHRANTZ, JUDGE

AFFIRMED

RAYMOND R. ABRAMSON, Judge

Todd and Elizabeth Toombs were married on January 6, 1987, and lived together as husband and wife until they separated in October 2008. Mr. Toombs remained in Arkansas and Mrs. Toombs returned to Arizona. On February 23, 2009, Mr. Toombs filed for divorce. In an email to Mrs. Toombs informing her that he had filed for divorce, Mr. Toombs provided her with an overview of his proposed division of assets and offered to pay alimony for four years. Mrs. Toombs answered the divorce complaint and counterclaimed for divorce on March 23, 2009. In her answer and counterclaim, Mrs. Toombs alleged that she was financially dependent upon Mr. Toombs and requested that he be ordered to pay alimony both during the pendency of the divorce proceedings and permanently.

The parties subsequently agreed to mediate their property-division and alimony disputes.

The mediation was held on April 14, 2009, with attorney Scott Smith acting as the agreed-upon mediator. Both parties were represented by counsel at the mediation. After approximately seven hours of mediation, the parties reached an agreement as to the division of property and debts and as to the amount and duration of alimony. A divorce decree incorporating the mediation agreement was filed on April 17, 2009.

On July 16, 2009, Mrs. Toombs filed a motion to vacate the divorce decree and to set aside the mediation agreement pursuant to Rule 60(c) of the Arkansas Rules of Civil Procedure, claiming (1) that the mediation agreement was procured through coercion, undue influence, overreaching and duress perpetrated by Mr. Toombs and (2) that, given her longstanding mental and physical health issues and the emotional stress of the divorce, she was of unsound mind at the time of the mediation—facts not before the court at the time the divorce decree was entered.

After a hearing on the motion to vacate was held on November 17, 2009, the trial court denied the motion, finding that Mrs. Toombs had failed in her burden of proof. This appeal followed.

Unsound Mind

Mrs. Toombs first argues that the trial court erred in denying her motion to vacate or set aside her divorce decree and mediation agreement pursuant to Rule 60(c)(5) of the Arkansas Rules of Civil Procedure on the basis that she was of unsound mind at the time the mediation agreement was signed. The decision whether to grant or deny a motion to vacate or set aside a judgment under Rule 60 lies within the trial court's discretion and will not be reversed unless thetrial court has abused that discretion. See Williams v. First Unum Life Ins. Co., 358 Ark. 224, 188 S.W.3d 908 (2004).

Arkansas Rule of Civil Procedure 60(c) provides

The court in which a judgment, other than a default judgment [which may be set aside in accordance with Rule 55(c)] has been rendered or order made shall have the power, after the expiration of ninety (90) days after the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order.

However, in order to vacate or modify a judgment or order under Rule 60(c), the lower court must determine that at least one of an enumerated list of circumstances exists. Ark. R. Civ. P. 60(c). Rule 60(c)(5) states that the court may vacate a judgment or order for "erroneous proceedings against an infant or person of unsound mind where the condition of such defendant does not appear in the record, nor the error in the proceedings." Ark. R. Civ. P. 60(c)(5). The credibility of the witnesses who testify at a hearing held in connection with a motion to set aside a judgment is a matter for the trial court to determine. Fazeli v. Barnes, 47 Ark. App. 99, 101, 885 S.W.2d 908 (1994).

Mrs. Toombs claims that the testimony and medical records presented at the hearing on her motion to vacate clearly established that she was of unsound mind at the time of the mediation and that she did not understand the finality of her signature on the mediation agreement and divorce decree. However, there is a presumption of law that every person is sane, fully competent, and capable of understanding the nature and effect of her contracts. Union Nat'l Bank of Little Rock v. Smith, 240 Ark. 354, 400 S.W.2d 652 (1966); Ashton Trust v. Caraway, 2009 Ark. App. 806, S.W.3d —. The burden of proving incompetency rested with appellant. Id.

In its letter opinion, the circuit court recognized that Mrs. Toombs had presented evidence that she suffered from, and had sought treatment for, a variety of mental, emotional and physical ailments and that there was evidence that those conditions limited her ability to function at times. However, the circuit court determined that Mrs. Toombs had failed to meet her burden of proving that she was of unsound mind at the time she entered into the mediation agreement. In its letter opinion, the circuit court indicated that, while Mrs. Toombs's judgment may have been limited on occasion, she had the presence of mind to discuss the possibility of divorce and its impact on her with her various counselors; she had engaged in ongoing discussions concerning the divorce with Mr. Toombs prior to the mediation; and that the testimony adduced at the hearing revealed that the mediation agreement was the result of a very deliberative process. Such findings are supported by the record before us.

We also note that there was testimony presented at the hearing that Mrs. Toombs actively participated in the mediation and expressed her concerns regarding the amount and duration of alimony. While the parties may have initially utilized the figures contained in a spreadsheet prepared by Mr. Toombs, the spreadsheet was not adopted wholesale as the final property distribution. Rather, the parties made adjustments to the spreadsheet prior to the final agreement. Moreover, aside from Mrs. Toombs, all the witnesses who were present at the mediation testified that she never appeared unable to comprehend the nature of the mediation. Even her therapist testified that she could not state whether Mrs. Toombs was incompetent or incapable of making a decision at the time of the mediation.

Giving due deference to the trial judge's superior position to determine the credibility of witnesses and the weight to be accorded their testimony, the circuit court did not abuse its discretion in finding that Mrs. Toombs failed to prove that she was of unsound...