Vicky Bass Haynes v. Benton Ned Bass ( 2023 )

Cite as 2023 Ark. App. 385ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-20-752
Opinion Delivered September 13, 2023
VICKY BASS HAYNES APPEAL FROM THE GARLAND
APPELLANT COUNTY CIRCUIT COURT
[NO. 26DR-07-1156]
V.
HONORABLE F. RUSSELL
ROGERS, JUDGE
BENTON NED BASS
APPELLEE AFFIRMED
KENNETH S. HIXSON, Judge
This is an appeal from a divorce between appellant Vicky1 Haynes (appellant or Vicky)
and appellee Benton Ned Bass (appellee or Ned) that has been in litigation since 2007. In
this appeal,2 Vicky appeals from a divorce decree filed on January 24, 2014, and a series of
subsequent orders filed by the Garland County Circuit Court in favor of Ned. On appeal,
Vicky contends that (1) the circuit court erred in finding that the postnuptial agreement was
1
We note that appellant’s first name is also spelled as “Vicki” in some documents
throughout the record.
2
This is not the first time these parties have been before our appellate courts. On
February 25, 2015, we dismissed an appeal without prejudice due to the lack of a final order.
On May 26, 2016, the supreme court denied Ned’s petition for writ of certiorari. After yet
another premature appeal was filed, we dismissed the appeal without prejudice due to the
lack of a final order in a published opinion on February 13, 2019. Bass v. Bass, 2019 Ark.
App. 95.
valid and enforceable; (2) assuming that the postnuptial agreement was valid, the circuit
court erred in not following the postnuptial agreement; and (3) the circuit court erred in the
award of expenses to Ned and in the division of property based on the report of the special
master. We affirm.
I. Relevant Pretrial Pleadings3 and Facts
Vicky and Ned were married from 1981 to 1994. After their first divorce, they
remarried in 1995. The parties’ relationship again deteriorated, and on December 19, 2007,
Vicky and Ned executed a postnuptial agreement in which both parties were represented by
counsel. One week later, on December 26, 2007, Vicky filed a complaint for divorce against
Ned. In her complaint, Vicky referenced the postnuptial agreement and asked that it be
“properly administered.” Ned answered Vicky’s complaint for divorce and subsequently
filed multiple amended answers and a counterclaim for divorce wherein he consistently
requested that the postnuptial agreement be enforced. Vicky answered Ned’s counterclaim
and acknowledged the presence of the postnuptial agreement but requested that Ned’s
counterclaim be dismissed.
3
The record reflects that the parties and the circuit court filed over 260 motions,
orders, and other filings prior to the final hearing. Due to the voluminous number of filings,
this opinion attempts to include only those portions of the pleadings that are pertinent to
appellant’s points on appeal.
2
After approximately three years of litigation, Vicky abruptly changed her course and
position on the validity of the postnuptial agreement. 4 During the first three years of
litigation, Vicky alleged and argued that the postnuptial agreement was valid and
enforceable. However, on January 14, 2011, Vicky filed an amended complaint for divorce
and alleged for the first time that the postnuptial agreement was “improper” and “should
not be enforced.” Ned filed an answer and counterclaim wherein he denied that the
postnuptial agreement was unenforceable and pleaded several affirmative defenses, including
that Vicky had waived any right to contest the postnuptial agreement and was both judicially
and equitably estopped from doing so. Vicky answered Ned’s counterclaim and again alleged
the postnuptial agreement was invalid and unenforceable.
A few months later, Vicky again changed course. Her then attorney, J. Joshua Drake,
filed a pleading styled “Partial Withdrawal of Amended Complaint and Notice to Request
Enforcement of the Post-Nuptial Agreement” wherein Mr. Drake stated on Vicky’s behalf
that “Plaintiff hereby withdraws all those portions of her Amended Complaint and all other
pleadings where she challenges the validity of the post-nuptial agreement.” Vicky was now
back to her original position that the postnuptial agreement was valid and enforceable.
Apparently, this pleading led to a deterioration and subsequent severing of the relationship
4
The record indicates that Vicky retained and dismissed approximately twenty
attorneys during this lengthy divorce proceeding, and for some period of time, Vicky
represented herself pro se. Vicky’s position regarding the validity of the postnuptial
agreement appeared to vacillate depending on which attorney was representing her at that
time.
3
with Mr. Drake as her attorney, and Vicky retained yet another attorney, Jack Wagoner III.
In due course, Mr. Wagoner filed a second amended complaint wherein he alleged the
following:
9. Plaintiff’s prior counsel filed various pleadings regarding whether a
document that the parties have been referring to as a Post Nuptial Agreement should
be enforced. At trial, Plaintiff will not be proffering this agreement or seeking to
prove its terms or validity. If Defendant seeks enforcement of this agreement, then
the burden is on him to plead it and prove that it is enforceable.
It appears that Vicky was again alleging that the postnuptial agreement was invalid.
Ned’s answer to Vicky’s second amended complaint, as one would expect, alleged that
the postnuptial agreement was valid and enforceable. However, Ned’s answer raised a new
issue that would become relevant in the future. Ned also alleged that the circuit court had
already “determined the validity of the postnuptial agreement.” He further requested that
Vicky be ordered to reimburse him for the “payment of certain marital debts” and to
reimburse him for “all sums paid for or on behalf of [Vicky], or her interest, since the
separation of the parties.”
The parties owned substantial assets located across several states. During the
pendency of this case below (2007–2014), the circuit court5 entered several relevant orders
authorizing and distributing some of these assets. One of the assets was Bass Management,
5
Judge Lynn Williams was the original assigned judge, and he recused himself from
the case on January 25, 2011. Judge Russell Rogers was assigned on February 4, 2011, and
remained the judge until October 9, 2020. Judge Ellen Brantley was assigned on October
12, 2020, and remained the judge throughout the remainder of the case.
4
Inc. (Bass Management), a corporation jointly owned by the parties. Bass Management
owned and operated Brady Mountain Resort and Marina (Brady Mountain Resort) and
Brady Mountain One Stop. Brady Mountain Resort was sold, and the sale closed shortly
after the divorce complaint was filed. On April 8, 2008, the circuit court filed an order
equally disbursing to Ned and Vicky6 $2,734,270.36 each from the sales proceeds of Brady
Resort.7 On October 2, 2008, the circuit court further ordered that a check from Bass
Management in the amount of $25,233.08 for closing proceeds be released to Vicky.
Carrying on, the record indicates that Brady Mountain One Stop 8 (owned by Bass
Management) was failing to produce sufficient income to be profitable and was costing
approximately $5,000 a month to maintain. Approximately three years later, Ned filed a
motion for leave to sell Brady Mountain One Stop. The court granted the motion and
ordered that the property be sold at public auction on August 23, 2010. At the auction, the
bidding did not reach the stated reserve, which was the approximate amount of the mortgage
debt on the property. However, Ned individually was the highest successful bidder and
offered to purchase the property subject to the current mortgage in anticipation of paying it
6
Other sales proceeds from the sale of Brady Mountain Resort that were in the registry
of the court were subsequently paid to the Internal Revenue Service, one-half to pay the tax
liability owed by Vicky for the year 2008 and one-half to pay the tax liability owed by Ned
for the year 2008.
7
Brady Mountain One Stop was not part of this transaction but was sold later during
the litigation.
8
Brady Mountain One Stop was the only remaining asset of Bass Management.
5
off or refinancing. Therefore, the circuit court filed an order confirming the public sale to
Ned on August 19, 2013, and Ned became the sole owner of Brady Mountain One Stop
subject to the mortgage free and clear of Bass Management’s interest. 9
At about the same time that the sale of Brady Mountain One Stop was going on, Ned
filed a motion for contempt against Vicky regarding the Collierville, Tennessee, property.
In the postnuptial agreement, the parties agreed that Vicky would purchase the Collierville
residence as her sole property. The agreement did not require Ned to make any payments
on the note and mortgage.10 The record indicates that the original mortgage note on the
Collierville property was debt against Ned, individually, and that as part of the agreement,
Vicky agreed to refinance the debt solely in her name. Ned filed a series of motions for
contempt alleging that Vicky had not made note payments for several months; approximately
$51,000 was now due; and Vicky should be held in contempt. Ned made some payments
on the notes to keep the notes out of default since the notes were in his name. While Vicky
was between attorneys and representing herself pro se, she appeared for a hearing on the
motions for contempt filed by Ned. In its September 10, 2013, order, the circuit court found
Vicky in contempt for failing to pay the note and mortgage on her residence in Collierville
in the amount of $51,000, which Ned had instead paid. It also found that she was in
contempt of court for accessing a line of credit through the parties’ joint bank account in
the amount of $4,000. The court allowed her the opportunity to purge herself of contempt
9
The order confirming the sale was entered over three years after the auction.
10
See footnote 16 below.
6
by paying Ned $55,000 within seven days of the order and by making all future payments
associated with the Collierville residence as ordered in its previous November 1 and
November 3, 2010, orders. The circuit court further stated that if Vicky failed to pay, Ned
would be entitled to a lien against the Collierville residence and that a receiver would be
appointed to sell the residence.
Vicky did not pay Ned and continued not to pay the note and mortgage on the
Collierville residence. On December 20, 2013, the circuit court revised its order to appoint
a receiver to sell the property. Subsequently, the circuit court filed an order confirming the
sale of the Collierville residence on January 30, 2014. The court’s order stated that the
parties did not “acquire any beneficial interest” after the sale. In fact, Ned paid the
outstanding debt after the funds from the sale were applied, and Vicky was ordered to
reimburse Ned $1,750 for her half of the auction fees.
II. The Final Divorce Trial
After six years of litigation, a final divorce trial was held September 18–20, 2013.
Vicky had retained another attorney by this time, Janie Evins. At the outset, Vicky’s counsel
raised the issue of whether the postnuptial agreement was enforceable in the following
colloquy:
MS. EVINS: And then I guess the second matter would be that a prior judge,
Judge Williams I believe, had indicated that at some point -- I
don’t have the exact date for the order, but the parties would
abide by the postnuptial agreement. I believe that’s been to all
our benefits if we could determine whether the Court is going
to ask that the postnup be honored and that the parties’ actions
abide by the postnup and be determined accordingly.
7
THE COURT: I would say that’s a standing order. I mean an order in effect.
The order is in effect right now. That’s after the reading.
MS. EVINS: Okay. Okay. Then we’re ready to go.
Despite Ms. Evins’s representation and the circuit court’s acknowledgment that there
is an order stating that the parties would “abide” by the postnuptial order, we have found
no such written order in the addendum, supplemental addendum, or record. However, as
explained below, we find that this alleged order is of no consequence.
At trial, approximately thirteen witnesses were called to testify about events that
occurred over the previous seven years of litigation, and the trial exhibits totaled
approximately 370 pages. Instead of recounting all the evidence introduced at the trial, this
opinion will summarize and review pertinent testimony that is relevant to the parties’ briefed
arguments in our analysis below.
Vicky testified that she had more recently lived in her residence in Collierville,
Tennessee, before moving in with her mother. She agreed that she entered into a postnuptial
agreement shortly before she filed for divorce and that the agreement had stated that the
parties intended to continue the marriage at the time the agreement was entered into. She
discussed the details of the postnuptial agreement and how the agreement designated the
parties’ property was to be distributed.
Vicky stated that the agreement required that one of their properties, Brady Mountain
Resort, was to be divided equally. However, she stated that it was her belief that when it was
sold during the pendency of this case, Ned received an amount that was higher than the $3.2
8
million she received. She further complained that, although she received $15,000 a month
until the sale of Brady Mountain Resort, the check she received each month was from Bass
Management rather than from Ned’s personal account. She further stated that Bass
Management was to pay all her attorney’s fees under the postnuptial agreement unless it was
alleged that the fees were excessive, in which case, the parties were to agree to mediate any
dispute. Vicky testified that she would be willing to agree to accept the sum of Ned’s
attorney’s fees to avoid any dispute about whether her fees were excessive.
Vicky claimed that Ned had been hiding assets. She stated that the parties had owned
cattle before they separated and that she did not see cattle the last time she was on the
property. Vicky explained that the parties had an interest in several companies that they had
formed, including Bass Management, NV International, Inc. (NV International), Winston
Cup, Inc. (Winston Cup), and Grey Wolf Development, Inc.11 (Grey Wolf). However, she
stated that she had not received a salary from these entities pending divorce. She asked the
court to grant her half of the net rental income that Bass Management had received and half
of any income that NV International and Winston Cup had received.
Vicky asked the circuit court to sell any property that the parties owned through any
entity. However, she did not want to sell the property next to their marital home that she
alleged had been conveyed to her son by NV International. She wanted her son to be able
11
Our record reflects that this property was sold during this litigation, and on October
2, 2008, the circuit court filed an order equally distributing funds from the sale of the parties’
interest in real property to Vicky and Ned; they each received $9,208.38 from that sale.
9
to keep that property. Vicky acknowledged that a convenience store, Brady Mountain One
Stop, had been sold. However, she made allegations regarding a secret lease and a
nonexistent mortgage that Ned had wrongfully claimed. She alleged that she did not receive
her fair share of this property and even testified that she was suing the buyer of that property.
Vicky also wanted to be awarded the Collierville home, despite the fact that it had been
already ordered sold, and to be reimbursed for any improvements she had made to the
Collierville home.
On cross-examination, Vicky admitted that she received $3.2 million from the sale of
Brady Mountain Resort; $950,000 for The Landing 12 marina in Tarpon Springs, Florida;
and $125,000 for her stock in Log Cabin Liquor, even though she first denied it. She agreed
that if Ned had purchased something after the postnuptial agreement, it was his to keep
under paragraph 13 of the postnuptial agreement as long as he showed which assets were
used to purchase the property.
Regarding Brady Mountain One Stop, Vicky denied that she had been notified by
her attorney that it was sold at public auction. She also denied that she should be responsible
for any of the debt service on the property but instead claimed that she was entitled to a
share of the income that the business realized during the pendency of the divorce. Vicky
denied that another one of her attorneys shared with her the payment coupons for the debt
service of that property. Vicky further denied that the attorney’s fees mentioned in the
12
This property was sold in 2007 before the parties executed the postnuptial
agreement.
10
postnuptial agreement referred to the closing fees that would be spent by her for the closing
sale of Brady Mountain Resort, even though the sale of that property was contemplated at
the time the postnuptial agreement was entered.
Vicky stated that she had paid the taxes and mortgage on the Collierville residence
from the moment she moved in until the time she stopped paying and was held in contempt.
Even though the postnuptial agreement did not say that Ned would be responsible for the
loans on the home, Vicky testified that because it stated that the home would be her sole
residence, she thought that Ned should be responsible for paying the mortgage. She claimed
she only stopped paying the mortgage because she “ran out of money.” However, Vicky
admitted that she drove a new Mercedes and has paid her other bills. Vicky claimed that
she had to sell all her jewelry, luggage, and clothes and now lives with her mother because
she did not have enough money. She denied that she had a lockbox in California or that
she had any accounts with her mother, sister, or former fiancé.
Vicky testified regarding her relationship with her expert witness, James Recouper.
She admitted that she currently had a business relationship with Mr. Recouper and that he
ran a cabin-rental business. She denied that her business relationship included her buying
rental cabins after she received money from the divorce. Vicky stated that Mr. Recouper was
her expert and that he “discovers” things for her. She explained that she had paid him
$2,500, but he returned $2,000 to her even though he had “over 100 hours into this” and
had been to Florida to investigate for her. Vicky denied that she had a romantic relationship
with Mr. Recouper and denied that he spent the night in a hotel room with her despite the
11
hotel records that were admitted into evidence. She claimed that she stayed in the hotel
room with her daughter and granddaughter for two nights and that Mr. Recouper spent
three nights in another room. She testified that she had no idea why there were no hotel
records of Mr. Recouper staying in another room.
Vicky admitted that she had not paid any marital debt service for the marital
residence, the farm, or Brady Mountain One Stop. However, she stated that maybe if she
had received money, she could have paid something back. That said, she stated that she did
not count what Ned claimed he had paid because he had not provided her with any receipts.
She stated that she was not willing to pay half of the debt service on the marital home because
Ned’s girlfriend was living in the home. She stated that Ned’s girlfriend should pay for it.
Regarding the debt service on the other properties, she claimed that she had never received
a benefit from those properties and therefore should not be held responsible. She claimed
that Ned should also be responsible for any mortgages that he forged her name on and be
personally responsible for a tax lien that is on the marital home.
Vicky’s brother-in-law, Charles Huff, testified that he thought Vicky was a credible
person. He admitted that he had a disagreement with Ned approximately twenty years ago
when Ned failed to give him a fee from Ned’s sale of a log home to one of Charles’s partners.
Patricia Jane Haynes, Vicky’s mother, testified that she lived in Collierville,
Tennessee. Ms. Haynes testified that Vicky lived with her and that she was financially
assisting Vicky as well. She knew that Vicky had previously been living at a home in
Collierville and that Vicky had made several improvements to the home over the years. Ms.
12
Haynes testified that she thought Ned was a dishonest person and that he had even broken
her finger in the past.
Elizabeth Huff, Vicky’s sister, also testified that she was concerned with Ned’s
behavior and did not think he was a truthful person. She remembered that the parties had
cattle on their marital property and that Vicky had made improvements to the home in
Collierville. On cross-examination, Elizabeth admitted that Vicky had given her a Lincoln
Navigator for her birthday after the parties’ separation. She also testified that Vicky took her
on trips to Greece and Hawaii.
James Recouper testified that he is a real estate appraiser and that he had been
licensed to appraise property in Florida, Tennessee, Kentucky, and Arkansas. He testified
that he also owned a log-cabin-rental business in Gatlinburg, Tennessee. He explained that
Vicky had asked him to assist her in securing documents or appraisals of some property, but
he admitted that he had not done any appraisals for this case and that he had never testified
as an expert in Arkansas. Mr. Recouper testified that he reviewed documents for several of
the properties in this case. He stated that he could not perform an appraisal of the
Collierville residence because Vicky’s name was not on the trust deed. Mr. Recouper also
stated that he reviewed the documents from the sale of Brady Mountain One Stop. He stated
that he never found a recorded mortgage but acknowledged that the circuit court had
ordered it sold for at least the amount of the mortgage. He observed that Ned had purchased
the property at the judicial sale for $320,000. Mr. Recouper theorized that Ned had
13
quitclaimed the property to Bass Management before it was then sold to a third party who
successfully operated the business and later sold it to someone else.
On cross-examination, Mr. Recouper testified that he did not know Vicky was
represented by counsel when the properties he reviewed were sold. He denied that he stayed
in a hotel room with Vicky. He claimed that he rented two separate rooms and did not
know why the hotel did not have a record of it. He denied that he was working on a
contingency fee based on the outcome of the divorce. He explained that there was no
understanding as to how much he would receive. Instead, his fee would be based on the
time and difficulty of each appraisal because of Vicky’s financial situation.
Vicky rested her case.
Ned called Jennifer Carradine as a witness. Ms. Carradine testified that she is a
manager at the Park Hotel in Hot Springs, Arkansas. She testified that the hotel records
indicate that the original room that was rented by Mr. Recouper and Vicky, room 301, had
a queen-size bed. Vicky then had the room upgraded to a king mini suite because she had a
large dog. Ms. Carradine was not at the hotel when Vicky checked in, but she remembered
seeing Vicky later with her large dog. She never saw Mr. Recouper or Vicky with any other
female or adult. She did not have any records of any other room being reserved by Mr.
Recouper.
Steve Demott testified that he is an attorney and that he owns a title company. He
explained that Ned hired him to assist with the sale of Brady Mountain Resort, which was
owned by Bass Management. He explained that he was satisfied that both Ned and Vicky
14
understood the transaction and that Vicky was represented by her own attorney at the time.
The buyers required that not only Bass Management sign the certificate of seller in its
corporate capacity but that Ned and Vicky also personally sign as the sole shareholders. Mr.
Demott explained the sale process and described the executed documents in detail.
Ned testified on his own behalf. Ned stated that he still lived in the marital home.
He recalled entering into a postnuptial agreement with Vicky at her request. He further
testified that he had no idea that Vicky would file for divorce shortly after he signed the
postnuptial agreement. He explained that Vicky had been represented by attorney Sky Tapp
at that time and that Mr. Tapp also represented her regarding the sale of The Landing, for
which Vicky received $950,000.
Ned explained in detail the various properties and entities in which the parties had
an interest over the years. Ned stated that Bass Management had owned Brady Mountain
Resort and Brady Mountain One Stop. He went on to explain that those properties were
disposed of and the funds distributed by the circuit court. Vicky and Ned jointly own the
marital home and adjacent farm. He explained that there were some surviving cows left on
the property. Ned stated that the parties also purchased land that was adjacent to the marital
home and that some of the land was owned by NV International, a farming company created
and owned jointly by Ned and Vicky. None of the property owned by NV International had
been sold at the time of the divorce trial. He acknowledged that the postnuptial agreement
stated that certain parcels were to be given to the parties’ children, and he asked the circuit
court to award that property to the children as provided in the postnuptial agreement. Ned
15
stated that he thought the other parcels needed to be sold. However, he also explained that
the parties had debt on some of the parcels and that Vicky had refused to help him pay any
of the marital debt while their divorce was pending. Therefore, he had been paying debt
service on a monthly basis for their various properties and entities pending their divorce. He
requested that the circuit court award him half of the money he had expended as a lien
against any remaining real property when it is sold.
Regarding the Collierville residence, Ned stated that he was never able to sign a
quitclaim deed to convey the property to Vicky because Vicky refused to pay off the note on
the home, and his name was on the note and the mortgage. He explained that the note was
in his name because Vicky was unable to qualify for a loan. They had agreed that she would
pay the note from the Brady Mountain Resort sales proceeds so he could convey the property
to her, but she then failed to do so. Ned claimed that the residence had been a financial
burden to him and that he had just paid the taxes on the property. Ned also explained that
he assisted Vicky in her move to Collierville. He paid to move five truckloads of items that
she took with her.
Regarding the attorney’s fees referenced in the postnuptial agreement, Ned testified
that the provision did not contemplating the payment of attorney’s fees for a divorce.
Rather, he claimed that the fees were “totally about Bass Management, selling Brady
Mountain Resort, Brady Mountain One Stop which Brady Mountain One Stop had sold.”
He explained that the parties were anticipating the sale of Brady Mountain Resort, which
16
was owned by Bass Management. Therefore, Ned thought Vicky received the money she was
owed and thought any attorney’s fees she incurred in the divorce was at her own discretion.
Ned denied that he had concealed or hid any assets as Vicky alleged. Ned did,
however, admit that he forged Vicky’s name on some documents when the bank required
him to execute new documents so that the bank did not foreclose on the parties’ property
after Vicky had refused to sign the documents. Ned testified that Log Cabin Liquor was not
mentioned in the postnuptial agreement because Vicky had previously sold her 25 percent
ownership in Log Cabin Liquor.
On cross-examination, Ned admitted that he did not personally pay Vicky’s moving
expenses from his personal bank account but that Bass Management had actually paid them.
He agreed that he had a girlfriend who was living with him in the marital home. She moved
into the home in October 2008. She does not pay him rent but takes care of the home since
he travels at least three days a week. Ned described and provided details regarding the various
loans and other debts the parties owed. He reiterated that Bass Management did not have
any money and that Bass Management no longer had a bank account. He also testified that
NV International no longer had a bank account but that Winston Cup still had an account
with Summit Bank and First National Bank for credit cards. He had a manager handle those
accounts. Because Winston Cup did not have any cash flow, he said he had to make up the
difference each month. Ned rested.
After Ned rested, Vicky’s counsel recalled Mr. Recouper as a witness. He testified
that he discovered a credit-card transaction that his business paid $170.03 for his hotel stay
17
for three nights. On cross-examination, he also stated that he paid for a separate room for
Vicky for only two nights, which was $276. He did not have an explanation as to why his
room total was less, even though he spent another night.
Joel Nelson Hickson testified that he had worked for Brady Mountain Resort. He
testified that Ned would routinely pay him in cash and would put cash in the safe rather
than deposit it in the bank. Mr. Hickson also testified that Ned had created a second set of
books to show the U.S. Army Corps of Engineers. On cross-examination, Mr. Hickson
denied that he was testifying voluntarily but was subpoenaed by Vicky. He denied that he
had received any gifts from Vicky in exchange for his testimony.
Vicky testified that she was not allowed to look at the loans for the Collierville
residence and was not aware of transactions that occurred in which Ned signed her name.
She disagreed with Ned’s testimony that she would not cooperate with him. She explained
that she wanted to “get rid” of marital assets rather than accumulate them. Finally, Vicky
testified that the $15,000 a month that she received before she received the Brady Mountain
Resort proceeds was from Bass Management and not from Ned’s personal account.
The court took the case under advisement, and on January 24, 2014, a decree of
divorce was entered. The decree stated the following pertinent findings:
4. The parties executed a document titled “Post Nuptial or After Marriage
Agreement” (“the agreement”) in December of 2007. The parties were each
represented by counsel who also signed and approved the agreement and the
agreement was witnessed and acknowledged. The agreement was admitted into
evidence as Plaintiffs Exhibit No. 1. At Trial, neither party contested the validity of
the agreement. Both parties seek to enforce the agreement according to their post-
18
trial briefs, and the Court finds and Orders that the agreement is valid and
enforceable with respect to the property and other matters set out in the agreement.
5. There is certain marital property of the parties which is not addressed
in the agreement of the parties and which is subject to division by the Court, as
follows:
a). The marital residence of the parties is located at 368 North
Pearcy Road, Garland County, Arkansas and title is held jointly by the parties.
The marital residence is subject to a mortgage in favor of Regions Bank in the
sum of approximately Three Hundred and Thirty-Five Thousand Dollars
($335,000) at the time of Trial. The 37.82 acres adjacent to the marital
residence is also owned jointly by the parties. At the time of Trial this property
was subject to a mortgage in favor of Diamond Bank with a principal balance
of approximately Three Thousand Two Hundred Dollars ($3,200.00).
b). 19.86 acres adjacent to the marital residence, also owned jointly
by the parties. There is no mortgage on this acreage.
c). 115.09 acres adjacent to the marital residence. This acreage is
titled in NV International Investments, Inc. NV International Investments,
Inc. is a corporation, the stock of which is owned jointly by the parties. The
corporation is marital property. This acreage is subject to a mortgage in favor
of B.J. Speers with a principal balance at trial in the sum of approximately
Seventy Eight Thousand Dollars ($78,000.00).
6. The parties shall be allowed a period of six (6) months from the date of
this decree to sell the above described real property privately. However, in the event
the property remains unsold after six (6) months, it shall be sold at public auction to
the highest bidder. The clerk of this court is hereby appointed commissioner for such
sale. Sale shall be advertised in a newspaper of general circulation in Garland County,
Arkansas, by at least one insertion, not less than ten (10) days prior to the date of sale.
Sale shall occur inside the front door of the Garland County Courthouse. In the
event the successful bidder is the Plaintiff or a public bidder, such bidder shall provide
surety for the bid in the amount of ten percent (10%) of the bid, cash or certified
funds, or a bank letter of credit or corporate surety bond. The closing shall occur
within ninety (90) days of sale, with interest at five (5%) percent per annum. In the
event the Defendant is the successful bidder, no bond shall be required; rather, the
lien of the Defendant for his payment of debt service, insurance, taxes and
maintenance shall excuse bond on the part of the Defendant.
19
7. The real property identified in Paragraphs 5(a) through 5(c)
hereinabove shall be sold. From the proceeds of the sale, the expenses of sale and
mortgage indebtedness shall be paid and the balance of the proceeds paid into the
Registry of the Court. From such proceeds, the Defendant shall be compensated for
one half (1/2) of debt service paid by him during the pendency of this divorce and up
to the date of distribution of final sale proceeds, and shall also be compensated for
one half (1/2) of insurance, taxes and maintenance paid during such time. The Court
hereby appoints [CPA] Marla Lammers as receiver for purpose of receiving
information and documentation of the Defendant in order to verify debt service,
insurance, taxes and maintenance paid by him. The receiver shall prepare and submit
to the Court a report indicating the amount determined by the receiver to accurately
establish debt service, insurance, taxes, and maintenance paid by the Defendant while
this divorce has been pending and up to the date of the report. The Court shall
receive and approve the report of the receiver, whereupon the Defendant shall receive
reimbursement for one half (1/2) of the debt service, insurance, taxes, and
maintenance from the funds held in the registry of the Court. The remaining balance
shall be divided equally between the Plaintiff and Defendant.
8. The 62.96 acres adjacent to the marital residence is subject to the
agreement of the parties and shall remain subject to the agreement. [13]
9. Winston Cup, Inc. is a domestic corporation created in 1999 and it is
marital property. Winston Cup, Inc. is not mentioned in the agreement of the parties
and thus is divisible as marital property. The stock of the corporation shall be sold,
at public auction to the highest bidder. From the proceeds of such sale, the corporate
debt owed First National Bank in approximate principal sum of Five Hundred Fifty-
Six Thousand Dollars ($556,000.00) shall first be paid. The expenses of sale should
next be paid, then the Defendant shall be reimbursed for one half (1/2) the debt
service paid, for Winston Cup, Inc., while this divorce has been pending. The court
appointed receiver . . . shall verify and report to the court for approval the amount of
such debt service. The stock of Winston Cup, Inc. shall be sold and advertised along
with the real property, as set out hereinabove. In the event the Plaintiff is the
successful bidder, or in the event a public bidder is successful, such bidder shall
provide surety for the bid in the amount of ten percent (10%) cash or certified funds
the day of sale, or a bank letter of credit or a corporate surety bond. The closing shall
occur within ninety (90) days of sale, with interest at five percent (5%). Because the
Defendant has personally guaranteed the loan and because of the lien of the
13
This separate 62.96-acre tract was apparently intended to be gifted or transferred to
the parties’ children in the future.
20
Defendant for debt service during the pendency of this divorce, no bond or security
shall be required of the Defendant.
10. The personal property of the parties, the surviving longhorn cows and
two (2) tractors registered in the name of the NV International Investments, Inc. shall
likewise be advertised and sold at public sale, at the same times as the real estate and
stock of Winston Cup, Inc. The successful bidder shall provide security for payment
by paying ten percent (10%) cash or certified funds the day of the sale, or by bank
letter of credit, or by corporate surety bond.
11. The residence located in Collierville, Tennessee has been ordered sold.
12. Bass Management, Inc. operated Brady Mountain Resort, the family
business of the parties. Bass Management, Inc. also operated a convenience store, gas
station, known as Brady Mountain One Stop. At the time of the parties’ agreement,
Brady Mountain One Stop had been sold by the parties and is therefore not
mentioned in the agreement of the parties. At the time of the parties’ agreement,
Brady Mountain Resort was under contract of sale, as reflected in the parties’
agreement. After the agreement was executed, the sale of Brady Mountain Resort was
closed and the parties each received one half (1/2) of the net proceeds, more than
Three Million Dollars ($3,000,000.00) each. Also after the parties’ agreement, the
buyer for Brady Mountain One Stop defaulted and the business was repossessed while
this divorce was pending. During the course of the divorce, the Brady Mountain One
Stop was the source of substantial dispute between these parties. Brady Mountain
One Stop was ordered sold and this court has confirmed the sale. Nothing more
remains to be done with respect to Brady Mountain One Stop or Bass Management,
Inc.
13. Log Cabin Liquor, Inc. is a corporation which was originally owned
one half (1/2) by the Plaintiff and Defendant and one half (1/2) by Rebecca and
Robert Freeman. The evidence was clear that Vicky Bass sold her stock in the
corporation to Rebecca Freeman for One Hundred Twenty Five Thousand Dollars
($125,000.00) February 16, 2007, evidenced by Defendant’s Exhibit No. 2. The
contention of the Plaintiff at trial was that the Defendant’s interest in Log Cabin
Liquor, Inc. was not disclosed to her and that under the terms of the agreement of
the parties the Plaintiff was therefore entitled to receive the Defendant’s interest in
that corporation. However, the contention of the Plaintiff that Log Cabin Liquor,
Inc. was “undisclosed or hidden” is clearly wrong. The Plaintiff was fully aware of
Log Cabin Liquor, Inc. at the time of the agreement; she sold her interest in the
business months before signing the agreement and received One Hundred Twenty
Five Thousand Dollars ($125,000.00) as shown by the undisputed evidence.
21
14. The evidence at trial was clear with respect to the two Florida marinas.
The Parties owned one half (1/2) of the stock in Sea Bass Marine Corp., which
operated a marina known as The Landing at Tarpon Springs. This marina was sold
in 2007 and the Plaintiff and Defendant each received Nine Hundred Fifty Thousand
Dollars ($950,000.00) from the sale. The contention of the Plaintiff at trial and in
her brief was that because of a claimed irregularity if the documentary stamps, there
was no sale. However, the Plaintiff and Defendant were both represented by counsel,
attended closing, and received the money. There was no evidence whatsoever that the
Defendant maintained any interest in this marina after the closing. The claims of the
Plaintiff with respect to this marina are not supported by any evidence.
15. The evidence showed that June 1, 2011, Sea Bass, LLC was created as
a Florida limited liability company (Defendant’s Exhibit No. 21). This LLC currently
operates a marina known as “Belle Harbor.” The evidence was clear and unrefuted
that this marina business began long after the agreement of the parties. The
agreement provides that property acquired after the agreement is the sole and separate
property of the person who acquires it. The validity of the post nuptial agreement was
not contested by the parties; in fact, both seek to have it enforced. There was no
creditable evidence to support a claim to Sea Bass, LLC or Belle Harbor Marina by
the Plaintiff.
16. The Plaintiff claims she is entitled to money from a corporation of the
parties, Grey Wolf Development, Inc. She bases this claim on a check received in July
of 2008. However, this divorce was pending in July of 2008 and the money received
was the subject of dispute in this divorce, while the Plaintiff was represented by a
different attorney, and by a different judge. The Court adjudicated the matter and an
order disposing of the Grey Wolf funds was entered herein October 2, 2008. The
claim of the Plaintiff to funds related to Grey Wolf Development, Inc. is therefore
denied.
17. The Plaintiff claims and the Defendant acknowledges that he signed
her name to certain extensions and renewals of the parties’ mortgage loans during the
six (6) years this litigation has been pending. Clearly, Mr. Bass should not have signed
the Plaintiffs name to those documents and the Court disapproves of it. However,
no evidence was presented which showed or suggested that any financial harm to the
Plaintiff occurred as a result. The Court denies the claim of the Plaintiff that the
Defendant should be made solely responsible for those loans as a result of his actions.
18. The Plaintiff contends that there were hidden or undisclosed assets.
There was little if any evidence to indicate the Defendant had hidden, squandered or
22
depreciated the value of any of the marital property. The Plaintiff makes these claims
with respect to The Landing at Tarpon Springs, Grey Wolf Development, Inc., Log
Cabin Liquor, Inc., Belle Harbor Marina and Brady Mountain One Stop. The
evidence was clear that the Plaintiff knew of and was directly involved in each of those
businesses. The Landing sold before the agreement and Plaintiff received Nine
Hundred and Fifty Thousand Dollars ($950,000.00). The Grey Wolf Development,
Inc., issue had already been adjudicated by this court. The Plaintiff sold and was paid
for her interest in Log Cabin Liquor, Inc. before the agreement. Belle Harbor Marina
did not exist until 2011, years after the agreement of the parties. Brady Mountain
One Stop was sold at the time of the agreement and has been previously adjudicated.
The court denies the Plaintiff is entitled to money or property based on alleged
hidden or undisclosed assets.
19. The actions and inactions of the Plaintiff have cost her and the
Defendant a great deal of money. Throughout the years that this divorce has been
pending the Defendant has paid debt service and related expenses to preserve the
marital assets of the parties, without contribution from the Plaintiff. The Defendant
is entitled to recover one half (1/2) of the expenses he incurred in “keeping things
afloat” for the past six (6) years, as set out hereinabove.
20. The Plaintiff seeks thirty thousand ($30,000.00) from the Defendant
because certain payments made to her pursuant to the agreement of the parties were
paid from Bass Management, Inc., and not from the Defendant individually. The
agreement of the parties was executed with the sale of Brady Mountain Resort under
contract. Brady Mountain Resort was the source of income to the parties at the time
of the agreement. The agreement contemplated that the payments to the Plaintiff
were to come from Bass Management, Inc., which operated the Resort until the sale
was closed. The Court denies any adjustment to the payments made because they
came from Bass Management, Inc.
21. Each party shall bear their own costs, attorney fees and litigation
expenses.
Vicky appealed. However, this court dismissed the appeal without prejudice on February
27, 2015, due to lack of a final order.
III. Relevant Posttrial Pleadings and Facts
23
On remand to the circuit court, Ms. Lammers compiled a report for the purpose of
settling the financial accounts in this case and submitted it to the court on May 20, 2015.
She attached multiple exhibits: exhibit A—“Summary of Expenses Paid by Ned from
December 26, 2007, to August 31, 2014”; exhibit B—“Total Estimated Future Outlay for
Debt Service and Expenses”; exhibits C and D—“Schedules of Expenses Paid by Ned for the
One Stop Store”; exhibit E—“Schedule of Garland County Property and Real Estate Taxes
Paid”; and exhibit F—“Summary of Monthly Maintenance Expenses for 368 North Pearcy
Road.” Ms. Lammers further indicated in her report that she sent a letter to Vicky’s counsel
requesting information but that she received no response. Ms. Lammers concluded that
Ned was entitled to be reimbursed $850,464.52 from Vicky for the period of time from
December 26, 2007, through August 31, 2014. She additionally determined that Vicky
needed to pay Ned $7,073.21 a month until the marital property was sold and monthly debt
service was no longer required as her portion of the expenses.
Vicky objected to Ms. Lammers’s report. Vicky specifically argued that portions of
Ms. Lammers’s report were “outside the scope of her review.” Ned filed a response
disagreeing with Vicky’s arguments and quoted the circuit court’s ruling in the divorce
decree:, “The Defendant is entitled to recover one half (1/2) of the expenses he incurred in
‘keeping things afloat’ for the past six (6) years, as set out hereinabove.”
Thereafter, on August 12, 2015, having retained new attorneys, Rachael E. Putnam
and Andy Taylor, Vicky filed a motion for new trial or, in the alternative, motion to amend
the court’s findings of fact. Importantly, this motion was filed nearly eighteen months after
24
the divorce decree had been filed. In the motion, Vicky argued that she was entitled to relief
due to irregularities in the proceedings and errors of law. See Ark. R. Civ. P. 59(a)(1) & (8).
Specifically, she challenged Judge Williams’s reluctance to recuse himself from the matter as
well as the conduct of Jack Wagoner, her former attorney in the matter. Vicky also asked
the circuit court to consider amending its findings of fact pursuant to Arkansas Rule of Civil
Procedure 52. She argued that the postnuptial agreement was invalid because the stated
intent of the postnuptial agreement is contrary to the language of the agreement and to the
parties’ actions, the postnuptial agreement lacked consideration, and Ned failed to disclose
all his assets. Alternatively, Vicky argued that the divorce decree is “outside the scope of the
postnuptial agreement.” Ned objected to Vicky’s motion and argued that the motion was
untimely.
On September 23, 2015, Vicky filed a supplemental motion for new trial or, in the
alternative, motion to amend the court’s findings of fact. In this supplemental motion, she
repeated some of her previous complaints and added more specific complaints regarding Ms.
Lammers’s report and attached documents in support of her supplemental motion. Ned
filed a response on October 7, 2015, and requested that the motion be dismissed. In an
amended response and supporting brief filed on February 16, 2016, Ned primarily argued
that Vicky’s motions were untimely and deemed denied, and he raised arguments that were
not first raised at trial. Vicky filed her reply on March 4, 2016, to which Ned filed a surreply
and brief in support on March 15, 2016.
25
Vicky additionally filed a combined motion to strike the special master report, motion
to disqualify Marla Lammers for a conflict of interest, and motion to disgorge Marla
Lammers’s fees on June 17, 2016. Vicky argued that Ms. Lammers was biased and had a
“pecuniary relationship” with Ned that clouded her findings. She further criticized Ms.
Lammers’s report and requested that the circuit court order Ms. Lammers to refund her fees.
Ned responded and requested that these motions be denied.
A hearing was held on July 1, 2016, regarding Vicky’s June 17, 2016, motion. At this
hearing, Vicky was represented by attorneys Rachael Putnam and Austin Rainey of Memphis,
Tennessee. Ms. Lammers testified that she is a certified public accountant and that she was
aware of Vicky’s motion to strike her report and to disqualify her. Ms. Lammers testified
that she does have a number of different business clients to whom she offered her tax
preparer professional services; however, she did not have any ownership interests in the
businesses as Vicky alleged. She further testified that she did not think there was anything
she had done that would be cause to disqualify her from serving as a special master in this
case. Nevertheless, Vicky’s counsel argued that there was an appearance of impropriety and
questioned Ms. Lammers’s neutrality. After hearing oral argument, the circuit court orally
ruled that it was denying Vicky’s motion to strike Ms. Lammers’s report.
Although the circuit court heard oral argument on some of the other pending
motions, the hearing was continued until December 13, 2016. In the meantime, on July 19,
2016, Vicky filed yet another supplemental memorandum of facts in support of her motion
for new trial. In it, she acknowledged that her trial counsel had erroneously stated to the
26
circuit court that there had been a previous order upholding the validity of the postnuptial
agreement. She blamed this mistake on her previous attorney, alleging that her former
attorney had failed to release all her files to her trial counsel. Vicky argued that she was
entitled to a new trial because the parties were under the mistaken belief that the postnuptial
agreement was valid. She further argued that there were multiple other factual errors in the
divorce decree. Ned responded and argued that Vicky’s memorandum was not a
“supplemental pleading” and that her argument was “nonsense.” Therefore, he requested
that it be summarily denied.
Vicky further filed an affidavit from CPA Sidney A. Goldstein on August 31, 2016.
In his affidavit, Mr. Goldstein stated that he had concluded that the marital estate totaled
$15,772,900 on the basis of an unsworn written representation Ned had made in August
2007, prior to the parties’ filing for divorce. He further concluded that Vicky was entitled
to half of the marital estate and that she had failed to receive $2,960,769 that he opined she
was entitled to receive. Finally, he disagreed with Ms. Lammers’s report and stated that she
lacked the necessary financial information to accurately report to the circuit court what, if
any, reimbursement was owed to Ned.
At the December 13, 2016, hearing, the parties presented their remaining testimony
and oral argument on the pending motions, including Ned’s motion to confirm the report
and set sale, Vicky’s objections, and Vicky’s motion for new trial or, in the alternative,
motion to amend the court’s findings of fact. The parties offered the testimony of two
experts, Ms. Lammers and CPA Goldstein.
27
Ms. Lammers testified that she is a practicing CPA in Hot Springs, Arkansas, and that
she was appointed by the circuit court to be a receiver in this matter. She explained that she
reviewed documents and created a report for the court itemizing payments that were made
to “keep the marital estate afloat.” She requested information from both parties and received
information from Ned that she compiled into reports that she presented to the circuit court.
Ms. Lammers stated that Vicky did not provide any records despite her requests. She testified
in detail about her method and reasoning for making the report calculations. Ms. Lammers
stated that she “felt like [she] had a broad charge” from the language in the divorce decree
and included anything that was a “benefit to the marital estate” in her report. She further
described each offered exhibit in detail. She explained that she wrote a “c” next to the
confirmed expenses for which she had supporting documentation, such as a receipt or
canceled check. In other instances, she wrote “unconfirmed” next to the expenses where she
knew the “expense happened” and was “documented” but that she did not have a canceled
check or other corroborating evidence.
On cross-examination, Ms. Lammers admitted that not every expense she included
was specifically paid out of Ned’s personal account. She explained that she did include paid
expenses that benefited the marital estate that originated from borrowed money or another
entity. Vicky’s counsel questioned Ms. Lammers about specific items that were included in
the report and Ms. Lammers’s rationale for including them. Ms. Lammers also admitted
that she did not have certain tax returns and schedules to reconcile and include the alleged
revenues for NV International, Winston Cup, and Bass Management that Vicky’s counsel
28
referred to during the hearing. Therefore, Ms. Lammers agreed that her report as presented
may not be accurate because she did not have those documents.
Mr. Goldstein testified that he also reviewed the financial documents and spoke with
Vicky. He explained that he had prepared the August 31, 2016, affidavit, which was
admitted into evidence without objection. During his testimony, Mr. Goldstein reiterated
the statements and conclusion he made in his affidavit. He explained that after hearing Ms.
Lammers’s testimony, he thought his concerns were validated. He disagreed that any
expenses should be included in the calculations unless they were specifically paid from Ned’s
personal bank account. On cross-examination, Ned’s counsel questioned Mr. Goldstein
regarding his reliance on an unsworn financial statement that was written by Ned before the
filing of divorce and whether the figures represented the fair market value of the assets. Mr.
Goldstein stated that he did not “presume people give a financial statement that’s a lie.”
Even though he acknowledged that certain assets—specifically, Seabass Marine—listed on the
financial statement had already been sold, Mr. Goldstein disagreed that it needed to be
subtracted from his calculations. Mr. Goldstein admitted that he received a $10,000 retainer
fee from Vicky for his services.
On redirect, Mr. Goldstein testified that he gave Vicky “credit” for all amounts that
she received in cash from the sale of Brady Mountain Resort and the sale of Seabass Marine.
He further stated that he “st[oo]d by [his] affidavit.”
The circuit court ultimately denied Vicky’s motions in an order filed on January 27,
2017. In this order, the circuit court made the following pertinent findings:
29
1. The Defendant’s Motion for Cash Bond, for Attorneys Fees and for
Judgment by Default filed on September 8, 2015 is granted. The Plaintiff shall post
a surety bond with the Clerk of this Court in the sum of $75,000, within 10 days
following entry of this Order.
2. The Defendant’s Motion for Plaintiff to Begin Payments for Debt
Service and for Judgment by Default filed on September 8, 2015 is granted in part.
The Plaintiff shall pay to the Defendant the sum of Six Thousand Seven Hundred
Sixty Three Dollars and 56/100 ($6,763.56), representing her one-half (1/2) portion
of the monthly debt service for the marital property remaining to be divided in this
action, plus Three Hundred Nine Dollars and 65/100 ($309.65) representing her
one-half (1/2) portion of one-twelfth (1/12) of the annual outlay for the primary
residence, cattle farm and NV International Investments, Inc. corporate expenses.
The Defendant shall continue to pay the debt service to the lenders in full. The
Plaintiff shall be obligated to pay the monthly sum of Seven Thousand Seventy-Three
Dollars and 21/100 ($7,073.21) on the same day of each month thereafter until the
property is sold and the monthly debt service is no longer required.
....
4. The Plaintiff’s Motion to Strike Special Master Report, Motion to
Disqualify Marla Lammers, and Motion to Disgorge Marla Lammers’s Fee filed on
June 17, 2016 is denied.
5. The Plaintiff’s Motion for New Trial, or in the Alternative, Motion to
Amend the Court’s Findings of Fact filed on August 12, 2015, the Plaintiff’s
Supplemental Motion for New Trial, or in the Alternative, Motion to Amend the
Court’s Findings of Fact filed on September 23, 2015, and the Plaintiff’s
Supplemental Memorandum in Support of Wife’s Motion for New Trial, or in the
Alternative, Motion to Amend the Court’s Findings of Fact filed on July 19, 2016 are
denied.
6. The Defendant’s Motion to Confirm Report and Set Sale filed on June
23, 2015 is granted. Pursuant to the Decree of this Court entered herein on the 24th
day of January, 2014, certain marital property of the parties is to be sold at public
auction. The report by Marla Lammers, CPA should be and is hereby approved as
presented, except for the required revisions set forth hereinbelow more specifically.
The public auction of the parties’ property as outlined in the Decree of Divorce dated
January 24, 2015, should be set for the 27th day of April, 2017, at 10:00 . . . a.m.,
which is approximately ninety (90) days from the entry of this Order. No proceeds
shall be distributed until specifically approved by this Court.
30
7. The Special Master, Marla Lammers, is hereby Ordered to amend her
Report to include revenue for NV International Investments, Inc., Winston Cup and
Bass Management, Inc. during the accounting period as shown by the tax returns and
K1’s. In addition, the Special Master is hereby ordered to amend her Report to
identify any instance when an expense was paid by NV International Investments,
Inc., Winston Cup and Bass Management, Inc., with a brief explanation, including
what was paid, the amount and the entity which has paid the expense.
Vicky filed a notice of appeal on February 24, 2017. However, we dismissed the
appeal without prejudice due to the lack of a final order in a published opinion on February
13, 2019. Bass v. Bass, 2019 Ark. App. 95. The March 5, 2019, mandate ordered Vicky to
pay Ned $500 for brief costs in the appeal.
While Vicky’s appeal was pending, she apparently retained another attorney, Danny
Crabtree. On March 18, 2019, Ms. Lammers requested that the circuit court hold a hearing.
A hearing was held on May 8, 2019. At the hearing, counsel for the parties discussed on the
record the circuit court’s rulings on several issues after there had apparently been an in-
chambers discussion. A written order was filed on May 16, 2019. The circuit court ordered
Ms. Lammers to file an amended report within ninety days, Vicky to pay the past-due balance
to Ms. Lammers, and both parties to pay Ms. Lammers an additional $2,500 each as a
retainer for her services.
Ms. Lammers filed her amended report on January 10, 2020, in which she detailed
the revenue and cash flows of NV International, Winston Cup, and Bass Management. She
also attached as exhibits multiple documents she used to make her calculations. On February
14, 2020, Vicky filed an objection to Ms. Lammers’s proposed request for fees for her
31
services. Vicky further filed her objections to the amended report on March 6, 2020. To
her objection, she attached an unsworn written statement signed by James Recouper and
stated that she was incorporating by reference the comments made in the attached statement
as her objections. She further stated that the “author of the objections will be available to
testify.” Mr. Recouper criticized the findings in Ms. Lammers’s amended report and
provided a series of instances in which he alleged Ms. Lammers erred in her calculations and
misunderstood the facts. He alleged that the amended report failed to comply with the
circuit court’s order and argued that the circuit court should not rely on the report. In
summary, he concluded that “the Amended receivers report must be stricken from the
record, given no weight and the Plaintiff wife paid back for paying for all of the expense on
the marital or jointly owned by Mr. Bass and Mrs. Bass owned house in Collierville which is
$265,000.” He also recommended that the funds “should be placed in the register of the
court and dispersed when the divorce is final.”
In response, Ned filed a motion to strike Vicky’s objections on March 11, 2020. Ned
argued that Vicky’s objections should be struck as untimely and pursuant to Rule 12(f) of
the Arkansas Rules of Civil Procedure. Ned further alleged that the written statement
prepared by James Recouper was hearsay and should be struck from the record. Vicky filed
her response to the motion to strike on March 26, 2020, and disagreed. She alleged that she
should be afforded an opportunity to question Ms. Lammers about the amended report
under oath and to offer testimony and evidence that might contradict the amended report.
32
A final hearing was held on August 18, 2020, during which Ms. Lammers testified.
Ms. Lammers acknowledged that she was ordered to submit an amended report to include a
summary of revenues for NV International, Winston Cup, and Bass Management. She also
looked for any instances of expenses that were paid by those entities. Although she explained
that she looked at the relevant tax returns, general ledgers, and working trial balances
prepared by the entities’ certified public accountants, she admitted that she did not examine
any supporting documentation used by those accountants to prepare the documents she
reviewed. Her amended report reflected that NV International and Winston Cup both had
net losses from 2008 through 2014 and that no shareholder distributions were made during
that time. Bass Management had a net profit of $10,999,034, and $8,019,017 was
distributed to the shareholders. Ms. Lammers explained that the income was from the
proceeds of the sale of the marina that was later distributed to the parties.
When asked on cross-examination whether she looked to see whether a utility bill was
paid by NV International for personal property instead of a business expense, Ms. Lammers
admitted that she did not look at twenty-one years of utility bills. Instead, Ms. Lammers
explained that if the tax return reflected a “utility expense,” she assumed that the entity’s
accountant had coded the expense properly. Ms. Lammers also answered several questions
regarding the various liabilities, loans, and notes of the entities. Ms. Lammers acknowledged
that she could not answer whether each note owed was “legitimate” as Vicky’s counsel asked.
Instead, Ms. Lammers explained that she could only state that it was “on the books” and that
she examined the tax returns and ledgers.
33
After further inquiry by the circuit court, Ms. Lammers testified that from her
“efforts” and “audits,” she did not think there was “any cash left that needed to be liquidated
out” or any further “positive number that’s owed by anyone to anyone.” Therefore, after
much oral argument and discussion, the circuit court concluded that the calculations made
in Ms. Lammers’s original report as to the marital expenses did not change.
That said, the parties’ counsel stipulated that instead of calling Vicky’s witness, Mr.
Recouper, to testify regarding his objections to Ms. Lammers’s amended report, the exhibit
with his comments that Vicky attached to her previously filed exhibits would be “what he
would testify” at the hearing. Additionally, counsel for both parties discussed several other
pending matters, and it was agreed that after the discussion and the circuit court’s oral
rulings, Ned’s counsel would prepare a draft final order for the circuit court.
After Vicky filed objections to the proposed order drafted by Ned’s counsel, the
circuit court filed an order on September 2, 2020, in which it made the following pertinent
findings:
2. . . . The Special Master presented her Amended Report on January 10, 2020,
detailing her review of the revenue and cash flows of NV International, Inc., Bass
Management, Inc., and Winston Cup, Inc. Based on the Amended Report of the
Special Master, dated January 10, 2020, and further based on the testimony of the
Special Master and considering the objections of the Plaintiff, the Court accepts
the Amended Report of the Special Master and finds that the revenue streams
and cash flows of NV International, Inc., Winston, Cup, Inc., and Bass
Management, Inc., do not effect the May 20, 2015 Report of the Special Master
which was accepted and approved by the Court January 27, 2011, and which is
hereby finally accepted and approved without modification.
3. Calculating pursuant to Paragraphs 7 and 19 of the Court’s Decree of Divorce,
dated January 24, 2014, the Special Master determined that the Defendant is
34
entitled to receive reimbursement of Eight Hundred Fifty Thousand Four
Hundred Sixty Four Dollars Fifty Two Cents, ($850,464.52) from the Plaintiff for
the period of time from December 26, 2007 through August 31, 2014.
4. By this Court’s Order of January 27, 2017, the Court ordered the Plaintiff to begin
paying to the Defendant the sum of Seven Thousand Seventy-Three Dollars
Twenty-One Cents ($7,073.21) per month until the marital property was sold, and
monthly debt service was no longer required. The Court further ordered the
Plaintiff to post a bond in the sum of Seventy-Five Thousand Dollars ($75,000.00)
in order to secure the payment of such debt. For the period of time from February
1, 2017 through August 1,2020, the Plaintiff owes the Defendant under the terms
of the Court’s January 27, 2017 Order, the sum of Three Hundred Four
Thousand One Hundred Forty-Eight Dollars Three Cents ($304,148.03).
5. The Special Master is ordered to calculate the Plaintiff’s obligation for the period
of time beginning September l, 20l4 through this Court’s Order of January 27,
2017, pursuant to the method and formula utilized in her original Report filed
herein. This calculation shall be completed within twenty (20) days of entry of
this Order. The totals for the three (3) time periods shall be added together and
the total of the three sums shall be paid by the Plaintiff to the Defendant from
the Plaintiff’s share of the auction sale of the parties’ marital property, based on
the Decree of Divorce. Upon receipt by the Court of the Special Master’s final
calculation, the Court shall immediately notify the parties either that it has been
accepted and approved, or the Court shall schedule a hearing on the Special
Master’s final calculation, to be held prior to the sale date, October 7, 2020.
6. The Court hereby orders the sale of the parties’ remaining marital property
consistent with the Decree of Divorce on or before October 7, 2020. The
proceeds shall be held by the Clerk in the Court’s registry pending a specific order
of distribution by this Court. The Special Master’s Original Report and Amended
Report dated January 10, 2020, are hereby specifically approved and accepted.
7. The Motion of the Defendant to strike the objections of the Plaintiff was
withdrawn by agreement of the parties.
....
9. The Special Master, Marla Lammers, is owed the sum of Eleven Thousand Six
Hundred Eighty-Nine Dollars Seventy-Five Cents ($11,689.75), as of January 14,
2020. This sum is to be paid equally by the parties within ten (10) days of the
date of this Order.
35
A notice of commissioner’s sale was filed on September 23, 2020, and the circuit
court filed an order confirming the receiver’s final report as presented on September 24,
2020. The circuit court further ordered the previously ordered sale to take place on October
7, 2020. In an amended order filed on October 16, 2020, the circuit court granted Ms.
Lammers $13,789.75 in fees and ordered each party to pay one-half of the fees within ten
days. After the sale of the marital properties, Ned filed a motion to confirm the sale at public
auction on October 20, 2020, which the circuit court granted on October 28, 2020. The
circuit court found that the real property was sold by the appointed commissioner for
$412,000. The circuit court further made the following relevant findings:
2. The Circuit Clerk of Garland County, Arkansas, acting as Court appointed
Commissioner did further sell all of the stock of the corporation, Winston Cup,
Inc., for the sum of Three Hundred Ten Thousand Dollars ($310,000.00); and,
the said Commissioner did sell certain cattle, for the sum of Eight Thousand
Dollars ($8,000.00), a Massey Ferguson Tractor for the sum of Ten Thousand
Dollars ($10,000.00) and a John Deere Tractor for the sum of Five Thousand
Dollars ($5,000.00).
3. The purchaser at the auction, for the real estate and all personal property was the
Defendant, Benton Ned Bass. According to the Decree of Divorce entered herein,
no bond was required of the Defendant.
4. The Defendant, Benton Ned Bass, does not owe any amount in payment because
the Plaintiff is indebted to the Defendant in the sum of One Million Three
Hundred Fifty One Thousand Six Hundred Seventy Five Dollars Sixty Four Cents
($1,351,675.64) pursuant to the approved Receiver’s report and Order of this
Court entered September 24, 2020. The Decree of Divorce and this Court’s
Order of September 2, 2020, provide that this sum is to be paid to the Defendant
from the Plaintiff’s share of any sale proceeds.
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5. The Court authorizes the Commissioner to issue a Commissioner’s Deed for the
real property and a Commissioner’s Bill of Sale for the personal property, to
Benton Ned Bass.
IT IS THEREFORE ORDERED that the Sale at Public Auction be approved and
confirmed, and that the Commissioner issue a Commissioner’s Deed for the real
property and a Commissioner’s Bills of Sale for the personal property to Benton Ned
Bass. It is further ordered that the Commissioner’s fee and expenses shall be paid
equally by the parties within ten (10) days of this Order.
This appeal followed.
IV. Standard of Review
On appeal, this court reviews divorce cases de novo on the record. Taylor v. Taylor,
369 Ark. 31, 250 S.W.3d 232 (2007). Moreover, we will not reverse a circuit court’s finding
of fact in a divorce case unless it is clearly erroneous. Id. A finding is clearly erroneous when
the reviewing court, on the entire evidence, is left with a definite and firm conviction that a
mistake has been made. Chekuri v. Nekkalapudi, 2020 Ark. 74, 593 S.W.3d 467. We also
give due deference to the circuit court’s determination of the credibility of the witnesses and
the weight to be given to their testimony. Id.V. The Validity of the Postnuptial Agreement
In her first point on appeal, Vicky seeks reversal of the circuit court’s finding in the
divorce decree that the postnuptial agreement was valid and enforceable. Vicky argues that
even though “one of her attorneys attempted to withdraw” her challenge, she had challenged
the validity of the postnuptial agreement both before the final hearing and in her motions
after the final hearing. Vicky further claims that she was “stopped from challenging” the
postnuptial agreement at the final hearing “based upon an alleged finding by the prior judge”
37
that the postnuptial agreement was valid. She explains that the sitting judge’s determination
was in error and that the record does not reflect any prior order finding that the postnuptial
agreement valid. Finally, Vicky argues that the postnuptial agreement was invalid for the
following three reasons: (1) there was no mutual agreement to stay married as contemplated
in the postnuptial agreement; (2) there was a lack of consideration; and (3) Ned had failed
to fully disclose all financial information. In summary, Vicky complains that she was “denied
the opportunity to challenge” the validity of the postnuptial agreement and that she would
have shown that the postnuptial agreement was invalid. We disagree.
It is undisputed that the parties in this case entered into a postnuptial agreement that
can be held to be valid and binding. A postnuptial agreement is an agreement entered into
during marriage to define each spouse’s property rights in the event of death or divorce and
is analyzed under contract law. Stewart v. Combs, 368 Ark. 121, 243 S.W.3d 294 (2006);
Simmons v. Simmons, 98 Ark. App. 12, 249 S.W.3d 843 (2007). In fact, Vicky and her
attorneys drafted the postnuptial agreement.
In this case, Vicky changed her legal position as to whether the postnuptial agreement
was enforceable or unenforceable in various pleadings and at various hearings as set forth
above. However, at trial, Vicky introduced the postnuptial agreement without limitation or
reservation as her own exhibit despite her earlier protestation in her second amended
complaint. Each party testified extensively regarding the terms of the postnuptial agreement
and introduced evidence regarding the value and ownership of certain properties specifically
addressed in the postnuptial agreement. Regardless of whether a previous judge may have
38
stated in a previous hearing that the parties had agreed to “abide” by the postnuptial
agreement, it is clear from the record that each party had the opportunity to present evidence
and to be heard on the issue of whether the postnuptial agreement was valid and enforceable.
An appellant cannot complain on appeal that the circuit court erred if the appellant induced,
consented to, or acquiesced in the court’s position. Colquitt v. Colquitt, 2013 Ark. App. 733,
431 S.W.3d 316. From the evidence introduced and arguments presented, the circuit court
specifically held that the postnuptial agreement was valid and enforceable. Paragraph 4 of
the decree of divorce states the following:
The parties executed a document titled “Post Nuptial or After Marriage Agreement”
(“the agreement”) in December of 2007. The parties were each represented by
counsel who also signed and approved the agreement and the agreement was
witnessed and acknowledged. The agreement was admitted into evidence as
Plaintiff’s Exhibit No. 1. At Trial, neither party contested the validity of the
agreement. Both parties seek to enforce the agreement according to their post-trial
briefs, and the Court finds and Orders that the agreement is valid and enforceable
with respect to the property and other matters set out in the agreement.
Further, while Vicky argued on appeal that the postnuptial agreement was invalid for
the following three reasons: (1) there was no mutual agreement to stay married as
contemplated in the postnuptial agreement; (2) there was a lack of consideration; and (3)
Ned had failed to fully disclose all financial information, Vicky did not raise these specific
issues until her posttrial brief. Because Vicky’s arguments are untimely, we summarily
dispose of these arguments. See, e.g., Switzer v. Shelter Mut. Ins. Co., 362 Ark. 419, 208 S.W.3d
792 (2005); Tate-Smith v. Cupples, 355 Ark. 230, 134 S.W.3d 535 (2003); Lee v. Daniel, 350
Ark. 466, 91 S.W.3d 464 (2002).
39
Therefore, contrary to Vicky’s arguments, Vicky was not prohibited from challenging
the validity of the postnuptial agreement as she argues, and there is no indication that the
circuit court clearly erred in its finding that the postnuptial agreement was “valid and
enforceable with respect to the property and other matters set out in the agreement.” As
such, we affirm on this point.
VI. Property Division
Next, Vicky argues that, assuming the postnuptial agreement is valid, the circuit court
failed to follow the agreement. She specifically takes issue with numerous distributions and
findings made in the divorce decree. Generally, she argues that the circuit court failed to
equally divide the marital property as “intended by the postnuptial agreement and the law.”
We disagree and address each of her arguments individually.
A. Marital Residence, Adjacent Acreage, and NV International
Vicky’s first argument is that the court erred in finding that the marital residence and
adjacent tracts of land were not addressed in the postnuptial agreement. Vicky is correct in
her assertion; however, despite the factual misstatement by the court, we conclude that such
misstatement did not lead to clear error as explained below.
The court made the following misstatement in paragraph 5 of the divorce decree:
“There is certain marital property of the parties which is not addressed in the agreement of
the parties and which is subject to division by the Court, as follows: . . .” (Emphasis added.)
The court thereafter listed the following property: (a) the marital residence located at 368
North Pearcy Road in Garland County, Arkansas, and adjacent 37.82 acres jointly owned
40
by the parties; (b) 19.86 acres adjacent to the marital property and jointly owned by the
parties; and (c) 115.09 acres adjacent to the marital residence owned by NV International.
That statement is partially incorrect. The marital residence and the adjacent 37.82 acres and
19.86 acres were addressed in the postnuptial agreement. However, the 115.09 acres
adjacent to the marital residence owned by NV International arguably was not specifically
addressed in the postnuptial agreement.14
1. The marital residence and jointly owned adjacent land
The parties jointly owned the marital residence located at 368 North Pearcy Road,
Hot Springs, Arkansas. There were three tracts of land adjacent to the residence. The parties
jointly owned the adjacent 37.82-acre tract and the adjacent 19.86-acre tract. A company
jointly owned by the parties, NV International, owned the 115.09-acre tract. Paragraph 8 of
the postnuptial agreement provides that “HUSBAND and WIFE shall equally divide all net
proceeds from the sale of the marital residence and land located at 368 North Pearcy Road. . . .”
(Emphasis added.) It is unclear from the agreement whether the phrase “the sale of the
marital residence and land” includes the 37.82-acre tract and the 19.86-acre tract jointly
owned by the parties and the 115.09-acre tract owned by NV International. Further, the
agreement does not define “net proceeds” nor the manner in which to calculate the “net
proceeds.”
14
This can be construed as a factual error in the decree; however, it was harmless error
and is not grounds for reversing the circuit court’s disposition of the marital residence and
adjacent property. See Keathley v. Yates, 232 Ark. 473, 338 S.W.2d 335 (1960).
41
On the other hand, the circuit court clearly determined the sale to include the marital
residence and all three tracts of land adjacent to the marital residence in its order for division,
as follows:
5. There is certain marital property of the parties which is not addressed
in the agreement of the parties and which is subject to division by the Court, as
follows:
(a) The marital residence [and the adjacent 37.82-acre tract,] . . .
(b) [The adjacent 19.86-acre tract, and] . . .
(c) [The 115.09-acre tract titled in NV International.]
6. The parties shall be allowed a period of six (6) months from the date of
this decree to sell the above described real property privately. However, in the event
that the property remains unsold after six (6) months, it shall be sold at auction to
the highest bidder. . . .
7. The property identified in Paragraphs 5(a) through 5(c) shall be sold. From
the proceeds of the sale, the expenses of sale and mortgage indebtedness shall be paid
and the balance of the proceeds paid into the Registry of the Court. From such
proceeds, [Ned] shall be compensated for one half (1/2) of the debt service paid by
him during the pendency of this divorce and up to the date of the distribution of
final sale proceeds, and shall also be compensated for one half (1/2) of the insurance,
taxes and maintenance paid during such time. The court hereby appoints Marla
Lammers as receiver for the purpose of receiving information and documentation of
[Ned] in order to verify debt service, insurance, taxes and maintenance paid by [Ned].
. . . The remaining balance shall be divided equally between [Vicky] and [Ned].
While a court has no authority to modify a couple’s independent contract, the
contract is still subject to judicial interpretation. Klenakis v. Klenakis, 2017 Ark. App. 36,
510 S.W.3d 821. When reviewing the circuit court’s interpretation of the agreement, the
first rule is to give to the language employed the meaning that the parties intended. Rowan
v. Rowan, 2022 Ark. App. 143, 643 S.W.3d 62. In construing any contract, we must consider
42
the sense and meaning of the words used by the parties as they are taken and understood in
their plain and ordinary meaning. Id. Ambiguities in a written contract are construed strictly
against the drafter. Yepez v. Yepez, 2022 Ark. App. 31; Emis v. Emis, 2017 Ark. App. 372,
524 S.W.3d 444. Here, Vicky’s attorney drafted the postnuptial agreement; therefore, any
ambiguity in the agreement is to be strictly construed against Vicky. Finally, circuit courts
are charged with achieving equity in divorce cases. See Jones v. Jones, 2014 Ark. 96, 432
S.W.3d 36.
The heart of Vicky’s argument is that the circuit court erred in allowing Ned to be
compensated for his one-half of expenses incurred in maintaining the marital residence and
land during the pendency of the divorce. Vicky argues that such compensation “is nothing
more than temporary alimony.” In essence, the postnuptial agreement provided that the
marital residence and land should be sold with the net proceeds divided equally between the
parties. That is contrasted with the decree of divorce that provided that the marital residence
and land should be sold and the remaining balance divided equally between the parties. The
only significant difference between the postnuptial-agreement distribution and the decree-
of-divorce distribution is that in the decree of divorce, the court allowed Ned to be
compensated from the sales proceeds in the amount of one-half of any costs he expended in
maintaining the residence and land during the multiyear pendency of the divorce. Further,
to remain objective, the circuit court appointed a receiver to review the documentation of
the amounts paid by Ned and present a report to the court. That is precisely what occurred.
The court appointed Marla Lammers as the receiver. She requested that each party provide
43
her with any evidence of funds expended during the pendency of the divorce to maintain
this property so that she could determine each party’s contributions and compensation, if
any. Ned submitted evidence of certain expenses he funded. Vicky did not. Ms. Lammers
testified that she had sent a letter to both Vicky and Vicky’s attorney requesting information
about any debts Vicky may have paid for purposes of one-half compensation. Ms. Lammers
testified that she did not receive a response to her letter. Ms. Lammers then stated she
followed up the letter with a phone call but that she never received any records from Vicky
or her attorney. Accordingly, from the evidence submitted, the receiver generated a report
that was ultimately relied on by the court. As such, the circuit court’s ultimate division of
the marital residence and the 37.82-acre tract, the 19.86-acre tract, and the 115.09-acre tract
was not clearly erroneous.15
2. NV International
Vicky next argues that the court erred in its division of NV International. This is
essentially the same argument set forth in the preceding section. NV International was
jointly owned by Vicky and Ned, and it owned the 115.09-acre tract adjacent to the marital
residence. The postnuptial agreement did provide, “Likewise, upon the sale of NV
INTERNATIONAL INVESTMENTS, all funds or money or consideration given for said
sale shall be divided equally between HUSBAND and WIFE[.] . . .” Again, the agreement
15
Vicky also contends that the postnuptial agreement implies that any sale of the
property was to be accomplished only by private sale. We disagree. A reading of the
postnuptial agreement shows that it does not provide for, or imply, any required method of
sale.
44
did not define the assets of NV International, nor did it define the manner in which the sale
of any assets should occur. Accordingly, the circuit court distributed the sales proceeds from
this adjacent tract in the same manner as it distributed the sales proceeds from the marital
residence and the adjacent 37.82- and 19.86-acre tracts, and we cannot find that the court
clearly erred in its division of NV International.
B. Debt Service
Vicky next seeks reversal on the basis of the circuit court’s decision to order the
proceeds from the sale of real property to first be placed in the registry of the court to allow
Ned to deduct the amount he expended toward debt service on their property during the
pendency of the divorce with the remaining proceeds to be divided equally between the
parties. She emphasizes that the postnuptial agreement merely provides that the proceeds of
the sales would be equally divided between the parties. Again, this is yet another slant on
the court’s decision to allow Ned compensation for funds he expended during this multiyear
litigation in maintaining the marital property, which we have previously analyzed and
affirmed.
In this case, the postnuptial agreement did not specifically address how the debt
service of the property would be handled. It is highly unusual for divorces to remain pending
for as many years as this case has, and under the circumstances here, we affirm the circuit
court’s interpretation of the postnuptial agreement. The net proceeds of any sale are
necessarily affected by the amount of debt the parties reduced during the pendency of the
divorce. Thus, it was not an error to give Ned credit for this debt service.
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C. Attorney’s Fees and Costs
Vicky also argues that the circuit court erred when it ordered both parties to pay their
own costs and fees in the divorce decree. Vicky argues that the postnuptial agreement clearly
provided that Bass Management (a company jointly owned by the parties) would pay all
attorney’s fees in the event of divorce “unless each agree that such fees are excessive.” Again,
we find no clear error under the circumstances. Bass Management originally owned Brady
Mountain Resort and Brady Mountain One Stop. However, those properties had been sold
and the proceeds distributed to the parties before trial. At trial, Ned testified that Bass
Management did not have any money and that Bass Management no longer had a bank
account. Moreover, the court-appointed receiver, Ms. Lammers, later testified that from her
“efforts” and “audits,” she did not think Bass Management had “any cash left that needed
to be liquidated out.” In the decree, the circuit court found that “[n]othing more remains
to be done with respect to . . . Bass Management, Inc.” Therefore, under the circumstances,
Bass Management no longer had any funds from which the circuit court could order it to
pay Vicky’s attorney’s fees. As such, we cannot find clear error and affirm.
D. Collierville Residence (Not the Marital Residence)
Another point of contention raised by Vicky is that the circuit court ordered that her
Collierville, Tennessee, residence be sold in violation of the postnuptial agreement. We
agree that the postnuptial agreement provided that the Collierville residence would be her
“sole and separate property.” However, the postnuptial agreement did not require Ned to
pay the mortgage or any other expenses for the Collierville residence, which was to be
46
“purchased by WIFE.”16 The court’s order requiring the sale and Vicky’s failure to profit
from the sale of the Collierville residence did not contravene the postnuptial agreement.
Instead, the circuit court had previously ordered Vicky to make the note and mortgage
payments on the Collierville residence. However, Vicky failed to make the payments as
ordered. In its September 10, 2013, order, the circuit court found Vicky in contempt for
failing to pay the note and mortgage on her residence in Collierville in the amount of
$51,000, which Ned had paid. It also found that she was in contempt of court for accessing
a line of credit through the parties’ joint bank account in the amount of $4,000. The court
allowed her the opportunity to purge herself of contempt by paying Ned $55,000. Vicky
failed to pay the money as ordered, and the circuit court ordered the Collierville residence
sold as a result of her inaction. The circuit court filed a revised order appointing a receiver
to sell the property on December 20, 2013, and an order confirming the sale of the
Collierville residence on January 30, 2014. Unfortunately, the sale did not result in any
additional funds that the circuit court could have then awarded Vicky, and Ned, in fact, had
to pay the outstanding debt after the funds from the sale were applied. Under these
circumstances, we find no clear error and affirm.
16
The postnuptial agreement actually provided that Ned would pay $15,000 a month
and “be solely responsible for the Tennessee residence note . . . until the closing and actual
receipt of the funds from the sale of Brady Mountain Resort . . . .” The distribution of the
sales proceeds from Brady Mountain Resort occurred on April 8, 2008, when the circuit
court filed an order equally distributing to Ned and Vicky $2,734,270.36 each from the sales
proceeds. As such, Ned had no responsibility to make the mortgage payments after April 8,
2008, per the postnuptial agreement.
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E. Brady Mountain One Stop
Vicky also seeks reversal of the circuit court’s findings in the divorce decree that
“[n]othing more remains to be done with respect to Brady Mountain One Stop[.]” Vicky
contends that Ned ultimately was allowed to repurchase Brady Mountain One Stop for less
than fair market value using assets from NV International. She alleges that there was no
confirmation of sale to Ned and that the records did not reveal a mortgage on Brady
Mountain One Stop that needed to be satisfied upon the sale in the first place. She basically
argues that Ned manipulated the evidence to receive Brady Mountain One Stop as his sole
property without benefit to her. She therefore argues that Brady Mountain One Stop is still
marital property that should be disposed of by the circuit court. Vicky misstates the facts,
and we decline to reverse on this basis.
Recall that Brady Mountain One Stop was not producing sufficient income to pay its
expenses, and Ned petitioned the court to sell the property. In the decree, the circuit court
found that Brady Mountain One Stop had been sold and that the court had confirmed its
sale. The record reflects that the circuit court ordered Brady Mountain One Stop to be sold
at public auction to the highest bidder. At auction, the bidding did not reach the stated
reserve, which was the approximate amount of the mortgage debt owed First National Bank.
However, Ned individually was the highest successful bidder and offered to purchase the
property subject to the current mortgage in anticipation of paying it off or refinancing.
Therefore, the circuit court filed an order confirming the public sale on August 19, 2013,
and Ned took the property subject to the mortgage free and clear of Bass Management’s
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interest. At trial, Ned introduced a copy of the original mortgage with First National Bank
that he had signed on behalf of Bass Management in 2004. Before he subsequently sold the
property to a third party, Ned admitted at trial that he had to substitute collateral because
he did not have the funds to satisfy the mortgage at that time. He testified that because he
did not want to encumber anything Vicky would have an interest in under the postnuptial
agreement, he mortgaged the 62 acres that the children were to receive under the postnuptial
agreement and told both children before he did so. He testified that he also told his children
that he would pay it off as soon as he could afford to do so. Importantly, the divorce decree
states that the 62 acres he mortgaged “shall remain subject to the [postnuptial] agreement”
in paragraph 8. In light of this evidence, Vicky’s arguments on appeal lack merit, and we
cannot conclude that the circuit court’s finding that “[n]othing more remains to be done
with respect to Brady Mountain One Stop” was clearly erroneous. As such, we affirm.
F. Log Cabin Liquor
Vicky next challenges the disposition of Log Cabin Liquor. Vicky sold her interest
in the business for $125,000 before she signed the postnuptial agreement. However, she
argued at trial that Ned’s interest in the corporation was not fully disclosed to her, and she
seeks reversal of the finding that she was aware of Ned’s interest in the corporation. Again,
the circuit court heard extensive evidence on this point. Contrary to her assertions, the
circuit court found that her contention that Ned’s interest in “Log Cabin Liquor, Inc. was
‘undisclosed or hidden’ is clearly wrong.” It further found that Vicky “was fully aware of Log
Cabin Liquor, Inc. at the time of the agreement; she sold her interest in the business months
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before signing the agreement and received One Hundred Twenty-Five Thousand Dollars
($125,000.00) as shown by the undisputed evidence.” On the record before us, the court’s
findings are not clearly erroneous.
G. Unfair Division of Property
Finally, under this point, Vicky argues that the division of property was unfair and
ignored the spirit of the parties’ agreement. In support, she emphasizes that there were
documents to indicate that Ned had a net worth of $15,722,900 and that Vicky received a
distribution of only $4,925,681 in the divorce. However, her argument lacks merit. The
document on which Vicky relies indicating Ned’s net worth was unsworn, dated in 2007,
and first introduced in the disposition of Vicky’s motion for new trial. Moreover, Ned
responded that the 2007 document did not consider the difference between fair market value
and liquidation value of the assets and that the document also included assets that had been
subsequently sold. Again, on this record, we find no reversible error and affirm the circuit
court’s findings.
VII. Expenses
As discussed above, the divorce decree required Vicky to pay Ned one-half of the
expenses he incurred “keeping things afloat” during the pendency of the litigation. Ms.
Lammers was appointed to determine the amount Vicky owed Ned. Ms. Lammers issued
her report and amended reports, Vicky objected to them, and after extensive testimony, the
circuit court reached a final figure that Vicky was required to pay Ned.
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In her final point on appeal, Vicky challenges, in general, the sum reached by Ms.
Lammers and adopted by the circuit court. Her arguments for reversal can be classified as
complaints that the court’s findings were clearly erroneous because they were based on Ms.
Lammers’s reports, which were unreliable and biased. She emphasized that Ms. Lammers’s
report was based primarily on information from Ned and that it was unclear whether Ned
actually paid certain expenses himself—instead, it appeared as though certain corporate
entities paid some expenses. She also argued that Ned must have removed cash and other
assets. She alleges that Ned had been removing cash from Brady Mountain Resort, and she
also points to her testimony that she thought more cattle should have been on the marital
property than Ned testified remained. Vicky criticizes Ms. Lammers’s methodology and
calculations and alleges that Ms. Lammers “jumped to a conclusion that favored” Ned
without complete information. As support for her arguments, she calls attention to the
testimony of her own expert, Mr. Goldstein, and requests that we reverse and remand. We
decline to do so.
Ms. Lammers submitted her initial report on or about May 20, 2015. Subsequent to
that initial report, the court held at least four hearings at Vicky’s request: July 1, 2016;
December 13, 2016; May 8, 2019; and August 18, 2020. Ms. Lammers either testified or
was available for testimony in each of the hearings and was subject to cross-examination by
Vicky’s then attorney. Further, in addition to disagreeing with some of Ms. Lammers’s
conclusions, Vicky retained her own expert witness, Mr. Goldstein, who presented testimony
that was contradictory to Ms. Lammers’s testimony. At the conclusion of the four posttrial
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hearings, after having the benefit of hearing testimony from Ms. Lammers and Mr. Goldstein
and being able to review the voluminous number of financial records that were admitted
and discussed at the multiple hearings, the circuit court ultimately agreed with Ms.
Lammers’s reports and credited her testimony.
Our appellate courts have reiterated that we give due deference to the circuit court’s
superior position to determine the credibility of witnesses and the weight to be given their
testimony. See Brave v. Brave, 2014 Ark. 175, 433 S.W.3d 227; Wilcox v. Wilcox, 2022 Ark.
App. 18, 640 S.W.3d 408; Atherton v. Atherton, 2018 Ark. App. 245, 547 S.W.3d 759. As
such, the circuit court was free to credit and give greater weight to Ms. Lammers’s testimony
over Mr. Goldstein’s testimony. On this record, we cannot hold that the circuit court clearly
erred and committed reversible error. Thus, we affirm the circuit court’s findings.
In conclusion, after reviewing each argument that appellant makes on appeal, we are
not left with a definite and firm conviction that a mistake has been made, and we affirm the
circuit court’s orders.
Affirmed.
GLADWIN and BARRETT, JJ., agree.
Richard E. Worsham, for appellant.
Legacy Law Group, by: Bryan J. Reis, Michelle Strause, and Philip B. Montgomery, for
appellee.
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