Stanley McTigrit v. Lisa Kay McTigrit Wright

ca05-428

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

STANLEY MCTIGRIT

APPELLANT

V.

LISA KAY MCTIGRIT WRIGHT

APPELLEE

CA05-428

January 25, 2006

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT, NORTHERN DISTRICT,

[NO. E-00-199]

HON. DAVID G. HENRY, JUDGE

AFFIRMED

Sam Bird, Judge

Stanley and Lisa McTigrit (now Wright) were divorced in October 2000 by decree of the Arkansas County Chancery Court. Ms. McTigrit was represented by an attorney at the divorce proceeding, but Mr. McTigrit was not. The trial court approved and incorporated into the divorce decree a "Separation and Property Settlement Agreement" between the parties that provided for Mr. McTigrit to pay monthly spousal support to Ms. McTigrit for ten years, with the last payment being due on November 15, 2010. On July 4, 2004, shortly after the remarriage of his ex-wife, Mr. McTigrit filed a motion to terminate spousal support. The bases of his motion were, first, that Ms. McTigrit's attorney had represented to him that spousal support would terminate upon her remarriage and, second, that the order was subject to modification and should be terminated because the purpose of spousal support is rehabilitation.

A hearing was conducted on September 3, 2004, and the motion was denied by the trial court in an order of September 21, 2004. A letter opinion that was incorporated into the final order included the following:

Ark. Code Ann. § 9-12-312 states that the liability for alimony terminates upon the remarriage of the person to whom the alimony was awarded "unless otherwise ordered by the court or agreed to by the parties." [Emphasis added.] In this case, both the agreement and the decree specifically provided that the spousal support would continue until November 2010. There was no reference to Ms. Wright's remarriage. The agreement in this case is an independent contract between the parties. The law is well settled that an independent agreement, if approved by the court and incorporated into the decree, may not be subsequently modified by the court. Such agreements may, however, be subject to interpretation by the court. However, no interpretation is required here because the alimony provision is not at all ambiguous.

(Internal citations omitted.)

Mr. McTigrit raises two points on appeal from the denial of his motion to terminate support. He contends (1) that the trial court erred in denying his petition because Ms. Wright's attorney misrepresented to him that the alimony would terminate at Ms. Wright's remarriage and (2) that Ms. Wright had unclean hands. We affirm the decision of the trial court.

The separation and property settlement agreement was prepared by Ms. McTigrit's then attorney, Christina Boyd. It included the following provisions:

8. Husband shall pay the sum of $600.00 ... per month for spousal support to be paid into the registry of this Court. Payment shall be made by the 15th day of each month with the first payment due in November of 2000. It is further agreed and understood that such support obligation shall cease after a period of ten (10) years with the last payment due by the 15th day of November, 2010. Husband shall continue said payments regardless of the status of his employment.

. . . .

10. This Agreement constitutes the entire agreement between the parties; and there are no representations, warranties, covenants or undertakings between the parties other than those expressly set forth herein. The parties agree that this Agreement shall be submitted to the Court for its action and approval and may be incorporated in, attached to, and filed with any decree of divorce hereinafter entered in the divorce action now pending between the parties. Provided, however, notwithstanding such incorporation, this Agreement is hereby acknowledged by husband and wife to be an independent contract of the parties and shall not be merged into any degree of divorce, but shall survive and be binding and conclusive upon husband and wife and shall not be modified, altered or changed except by the mutual written consent of husband and wife.

11. Husband and wife acknowledge that this Agreement is entered into only after considerable negotiation and as a result of much thought and deliberation by each of the parties, with each of the parties having a full understanding of all facts and rights involved herein. Both husband and wife acknowledge that they have sought and obtained such advice as either have desired in the negotiation and execution of this Agreement, and they have each had the opportunity to be represented by separate, independent attorneys of their choice. The parties further represent that this Agreement is entered into freely, voluntarily, and without undue influence by the other party or by any other person.

. . . .

16. A modification or waiver of any of the provisions of this agreement shall be effective only if made in writing and executed by both husband and wife.

The agreement was signed by both parties.

Police officer Lt. Dean Mannis testified that when he served papers on Ms. Wright, she stated that she did not know why Mr. McTigrit spent money for a lawyer because she thought "it was over with ... when she got married." Mannis agreed that she did not say, "Well, we all understood that spousal support was going to stop if I got remarried."

Mr. McTigrit testified that he filed for divorce, Ms. McTigrit hired an attorney, and the parties agreed to use only one attorney. He testified that he understood from a conversation with attorney Boyd that spousal support would end if Ms. McTigrit remarried. He stated that he understood that Ms. McTigrit thought the same thing. Mr. McTigrit said that he was high-school educated, could read and write, and had opportunity to read the agreement, provisions of which he read aloud during his testimony. He testified that he was not threatened or forced to sign, and that he read the agreement without voicing objections or asking that it be changed. He stated, "I did sign the agreement, I'm not a lawyer."

Attorney Boyd testified that she had represented Ms. McTigrit in the divorce and had prepared the settlement agreement based upon her understanding of the parties' agreement, communicated to her by her client. She denied telling Mr. McTigrit that he could disregard the agreement, in spite of what it said, should Ms. McTigrit remarry. Boyd stated that she advised Mr. McTigrit of his right to seek other counsel. She testified that, had either party questioned the agreement, she would not have had them execute it and would not have presented it to the court. She said that she was not uncomfortable about Mr. McTigrit's understanding the document and would not have had him execute it if she had any questions of his ability to understand. She said that she did not recall any discussion with him about remarriage, that she had no notes of any conversation with him, and that her agreement for attorney fees was with Ms. McTigrit only.

The trial court noted the contrasting testimony by Mr. McTigrit and Ms. Boyd as to whether she had told him that alimony would terminate upon Ms. McTigrit's remarriage. The court further noted Mr. McTigrit's testimony that he had no difficulty understanding the agreement, which he knew did not refer to a termination based upon remarriage. Finally, the court noted provisions of the agreement regarding its completeness and finality. Finding that the evidence did not support Mr. McTigrit's assertion that he was misled into signing the agreement, the court concluded that the agreement could not be modified to terminate the alimony obligation.

Whether the trial court erred in denying termination of spousal support

Mr. McTigrit contends that the court erred by not terminating alimony because "appellee's attorney misrepresented this interpretation of Ark. Code Ann. § 9-12-312 and the appellee manifested ... that alimony would cease if she remarried," and he asserts that the parties were in agreement that alimony would end upon her remarriage. He argues that, based upon his discussions with Ms. McTigrit and her attorney, he relied upon the provision of Ark. Code Ann. § 9-12-312(a)(1)(A) that liability for alimony terminates upon the remarriage of the person who was awarded the alimony unless otherwise agreed to by the parties. Mr. McTigrit argues that the attorney's misrepresentation to him constituted fraudulent inducement causing him to believe that the agreement contained a limitation of the alimony. He complains that the attorney should have included in the agreement a statement of limitation for remarriage, which both he and Ms. McTigrit thought was a condition of the alimony.

As his sole authority for his first point on appeal, McTigrit relies upon Joplin v. Joplin, ___ Ark. App. ___, ___ S.W.3d ___ (Oct. 27, 2004). In that case, we addressed the issue of fraud with regard to an integrated property settlement in a decree of divorce:

Rule 60(c)(4) [of the Arkansas Rules of Civil Procedure] allows a trial court to vacate or modify a judgment after ninety days in the case of "misrepresentation or fraud whether heretofore denominated intrinsic or extrinsic) by an adverse party." Our courts have particularly noted that a divorce decree containing an integrated property-settlement agreement may not be judicially modified in the absence of fraudulent inducement in executing the agreement. See Helms v. Helms, 317 Ark. 143, 875 S.W.2d 849 (1994); Anding v. Anders, 249 Ark. 413, 459 S.W.2d 416 (1970). See also McGinnis v. McGinnis, 268 Ark. 889, 597 S.W.2d 831 (Ark. App.1980) (recognizing that property-settlement agreements in divorce cases are highly favored under the law and, in the absence of fraud, they should not be modified by judicial action).

The elements of fraud are: (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; (5) damage suffered as a result of the reliance. Riley v. Hoisington, 80 Ark. App. 346, 96 S.W.3d 743 (2003). The party seeking to set a judgment aside for fraud has the burden of proving fraud by clear, cogent, and convincing evidence or, as our courts have sometimes said, clear, strong, and satisfactory proof. See McAdams v. McAdams, 353 Ark. 494, 109 S.W.3d 649 (2003); Grubbs v. Hall, supra; Mow v. Mow, 66 Ark. App. 374, 990 S.W.2d 578 (1999); Ward v. McCord, 61 Ark. App. 271, 966 S.W.2d 925 (1998). We review a trial court's decision under Rule 60 for an abuse of discretion. Fritzinger v. Beene, 80 Ark.App. 416, 97 S .W.3d 440 (2003); Grubbs v. Hall, supra.

__ Ark. App. at ____, ___ S.W.3d at ____.

Unlike Joplin, there was no pleading of fraud in the present case. The trial court here noted that there was no pleading of mutual mistake of fact, and it found that the evidence did not support Mr. McTigrit's assertion that he was misled into signing the agreement.

We agree with Ms. McTigrit that this first point on appeal is a matter of credibility of witnesses as to whether any misrepresentation existed. The trial court resolved that issue in favor of Ms. McTigrit. The trial court is in a superior position to determine the credibility of the witnesses, and we will not reverse its ruling on appeal. See Skokos v. Skokos, 333 Ark. 396, 968 S.W.2d 26 (1998). Furthermore, the express written agreement of the parties set forth the exact date and time for termination of spousal support. See Farmers Coop. Ass'n, Inc. v. Garrison, 248 Ark. 948, 454 S.W.2d 644 (1970) (in the absence of fraud, accident or mistake, a written contract merges, and thereby extinguishes, all prior and contemporaneous negotiations, understandings and verbal agreements on the same subject). The first point on appeal is affirmed.

Whether Ms. McTigrit had unclean hands

Mr. McTigrit contends that Ms. McTigrit had unclean hands because she was granted the opportunity "to make changes to the agreement after the signing of the divorce decree," but he was not given the same opportunity. He points to a hand-written line on the final page of the divorce that states, "The plaintiff is hereby restored to her maiden name of Stocks."

Ms. McTigrit objected at trial to Mr. McTigrit's testimony regarding this handwritten statement. The trial court ruled:

Traditionally, matters relating to child support, property, those sorts of things, go into settlement agreements. The changing of one's maiden name, or the restoration of a maiden name, is not something that would, in my experience, ever be in a property settlement agreement. So, I can't find that just because the decree was so modified that it would have any bearing whatsoever on the agreement.

Mr. McTigrit now asserts that Ms. McTigrit and her attorney are "playing fast and loose with the court" in that she could make changes to the agreement but, despite assurance by Ms. McTigrit and her attorney that the alimony was conditioned on remarriage, Mr. McTigrit could not make changes. Ms. McTigrit responds that the assertion that she was given the opportunity in chambers to modify the agreement is not supported by the evidence and that the settlement agreement is silent as to whether she would retain her married name or would be restored to her maiden name.

We find no error in the trial court's ruling that the restoration of Ms. McTigrit's maiden name, ordered by a modification of the divorce decree, had no bearing on the property settlement agreement. We agree with Ms. McTigrit that Mr. McTigrit's argument is convoluted at best and is not supported by the facts. Therefore, there is no merit to the contention that Ms. McTigrit had unclean hands.

Affirmed.

Gladwin and Vaught, JJ., agree.