Jordan v. Jordan

Cite as 2017 Ark. App. 13
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-16-265
Opinion Delivered JANUARY 18, 2017
CYNTHIA INGRAM JORDAN APPEAL FROM THE OUACHITA
COUNTY CIRCUIT COURT
APPELLANT [NO. 52DR-04-457]
V.
HONORABLE EDWIN KEATON, JUDGE
TIMOTHY ANDERSON JORDAN
AFFIRMED
APPELLEE
DAVID M. GLOVER, Judge
Cynthia and Timothy Jordan were divorced by “Agreed Divorce Decree” entered
on June 17, 2005. In April 2015, Cynthia filed a petition for modification of the divorce
decree, asking that Timothy’s payment of alimony to her be extended beyond the age
designated in their decree (62 1/2) and made permanent. On May 26, 2015, Timothy filed
a motion to dismiss the petition, contending that the court was without jurisdiction to
modify the alimony provision because it was agreed on by the parties as part of an
independent contract that was announced in open court and incorporated into the divorce
decree. Following a hearing on the motion, the trial court granted the motion to dismiss
by order entered on January 11, 2016. On January 29, 2016, Cynthia filed her notice of
appeal. We affirm.
As her sole point of appeal, Cynthia contends the trial court erroneously interpreted
the divorce decree in this case when it ruled the award of alimony could not be modified.
Cite as 2017 Ark. App. 13
She subdivides this point into two subpoints: 1) “the circuit court had no proper basis for
utilizing a docket entry to supplement or vary the findings and orders contained in a properly
entered decree of divorce”; and 2) “the mere fact that the parties announced to the court
they had reached an agreement on what the court should include in the decree is not
tantamount to a separate, enforceable ‘property-settlement agreement’ under Arkansas law.”
We find no error.
The “Agreed Decree of Divorce” provides in part,
Property Settlement Agreement:
....
8. Further based upon the agreement announced in open court, the plaintiff is
ordered to pay permanent alimony to the defendant in the amount of $1,500.00
weekly commencing Friday, May 6, 2005. The first payment shall be reduced by
defendant’s weekly paycheck. The alimony shall be paid each and every week and
shall terminate upon the happening of the first of any of the following events: (1)
the death of either party, (2) the defendant, Cynthia Ingram Jordan, reaching the age
of 62 and ½ years, or (3) the remarriage of the said defendant or the act of the said
defendant cohabiting in the marital residence with a member of the opposite sex.
The parties agree that said alimony is deductible on behalf of the plaintiff/payer and
taxable to the defendant/recipient, and that both parties will report the said alimony
payments as such in filing their individual income tax returns beginning with the tax
year 2005 and continuing until the alimony is terminated under the terms mentioned
hereinabove or by subsequent Order of this Court. In the event plaintiff misses any alimony
payments or is delinquent in excess of thirty (30) days, then defendant may require
that all future payments be made through the Circuit Clerk.
(Emphasis added.) The trial court’s docket entry provides in part,
5/3/2005 FINAL HEARING – P/f appears w/ atty, Tim Womack. Def appears
w/ atty, T. Wineland. Parties reach agreement on certain issues and
read same into record. No minor child at time of divorce. Testimony
taken of parties and p/f’s witness, Mary E. Frey. P/f is granted an
absolute divorce on general indignities. Parties agreement re property
and debt is approved and is adopted as the order of the Court. Each
party acknowledges on the record their acceptance to the agreement
as announced today. Mr. Womack will prepare precedent.
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At the hearing on Cynthia’s motion to modify, she took the position that the alimony
provision in the “Agreed Divorce Decree” was subject to modification because it was not
part of an independent contract signed by the parties but rather a mere stipulation agreed
upon by the parties and merged into the decree. Timothy, on the other hand, contended
that the parties’ property-settlement agreement was a separate and independent contract
between them that was incorporated into the decree but retained its independent,
contractual nature and was not subject to modification. In its order granting Timothy’s
motion to dismiss, the trial court noted that the decree contained a section labeled “Property
Settlement Agreement,” and that the terms of the agreement were set forth in paragraphs
four through thirteen of the decree. The alimony provisions of paragraph eight were thus
only a portion of the overall agreement. The trial court further explained in its order
granting the dismissal,
The Property Settlement Agreement completely addresses all of the rights and
liabilities of the parties. The settlement agreement was announced in Court and each
party indicated that they understood and accepted the agreement as announced. The
attorneys’ statements of the parties’ agreement on alimony, in announcing the same
to the Court, was not a means of dispensing with proof on the alimony issue, but
instead was a complete statement of the terms and conditions of the parties’ complete
Property Settlement Agreement.
In Linehan v. Linehan, 8 Ark. App. 177, 179-80, 649 S.W.2d 837, 838-39(1983), our
court quoted the supreme court in explaining that there are two major types of alimony
agreements and describing the differences between them:
In Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954 (1953), the Arkansas
Supreme Court distinguished between the two major types of agreements for the
payment of alimony, stating:
Our decisions have recognized two different types of agreement for
the payment of alimony. One is an independent contract, usually in writing,
by which the husband, in contemplation of the divorce, binds himself to pay
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a fixed amount or fixed installments for his wife’s support. Even though such
a contract is approved by the chancellor and incorporated in the decree, as in
the Bachus [v. Bachus, 216 Ark. 802, 227 S.W.2d 439] case, it does not merge
into the court’s award of alimony, and consequently, as we pointed out in
that opinion, the wife has a remedy at law on the contract in the event the
chancellor has reason not to enforce his decretal award by contempt
proceedings.
The second type of agreement is that by which the parties, without
making a contract that is meant to confer upon the wife an independent cause
of action, merely agree upon “the amount the court by its decree should fix
as alimony”. . . A contract of the latter character is usually less formal than an
independent property settlement; it may be intended merely as a means of
dispensing with the proof upon an issue not in dispute, and by its nature it
merges in the divorce decree.
In analyzing the facts before it in Linehan, our court rejected the husband’s argument that
the stipulated agreement could not qualify as an independent contract because it was not in
writing and was not signed by the parties. Our court reasoned,
Oral stipulations made in open court which are taken down by the reporter and acted
upon by the parties and court are valid and binding. Such stipulations are in the
nature of a contract. It is not necessary that an agreed statement of facts, admitted
by the parties to be true in open court, should be signed by the parties or their
attorneys. Contractual stipulations affect the subject matter of the lawsuit. They deal
with the rights or property at issue and are styled stipulations only because they occur
in connection with the litigation.
Id. at 180, 649 S.W.2d at 839 (citations omitted).
We have reviewed the cases cited by both parties, and agree with Timothy that the
facts here are very similar to those in Linehan. There is no separate written agreement signed
by the parties, as was true in Linehan, but the “Agreed Divorce Decree,” “approved as to
form and substance” by counsel for both parties, states in its first paragraph that
the parties announced to the Court, through their respective attorneys, that a
settlement of all issues to be presented in this case had been reached, and based upon
the same, and otherwise being well and sufficiently advised in the premises, and
further based upon both parties announcing to the Court, individually, that he/she
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understood all of the terms of the settlement agreement, THIS COURT DOTH
FIND AND ORDER[.]
The decree designates with a separate heading the parties’ “Property Settlement
Agreement,” with paragraphs four through thirteen contained in that section. Paragraph
eight, as quoted previously, addresses alimony. The language throughout emphasizes the
parties’ agreement.
While the trial court’s order granting dismissal does reference and quote from the
docket sheet, we find no significant conflict between the docket entry and what is expressed
in the decree itself, which was approved by both sides as to form and substance. With
respect to Cynthia’s contention that “the mere fact the parties announced to the court they
had reached an agreement on what the court should include in the decree is not tantamount
to a separate, enforceable ‘property settlement agreement’ under Arkansas law,” we note
the parties’ handling of their agreement in the instant case goes much further than Cynthia
describes. Here, the parties’ settlement of property issues is more clearly a negotiated
settlement of issues—set forth in a designated “property-settlement agreement” that the
parties intended to be binding—than a mere agreement to stipulate to some issues to avoid
putting on proof.
Affirmed.
WHITEAKER and BROWN, JJ., agree.
Ronald L. Griggs, for appellant.
Tripcony, May & Associates, by: James L. Tripcony, for appellee.
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