Margaret B. Grider v. Grady Pat Grider

Margaret B. GRIDER v. Grady Pat GRIDER

CA 97-803                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions I and II
                 Opinion delivered May 13, 1998


1.   Family law -- property settlement agreement -- chancellor had power to enforce under
     Ark. Code Ann.  9-12-313. -- Where a separation and property
     settlement agreement between the parties indicated that it was
     entered into in contemplation of separation and determined the
     rights and obligations of the parties with respect to their
     marital property during their separation, the chancellor had
     the power to enforce the agreement under Arkansas Code
     Annotated section 9-12-313 (Repl. 1993), which provides that
     courts of equity may enforce the performance of written
     agreements between husband and wife made and entered into in
     contemplation of either separation or divorce.

2.   Family law -- property settlement agreement -- separate-maintenance decree did not
     foreclose chancellor's jurisdiction to enforce. --  Where case law supported
     the proposition that the chancellor had the power to enforce
     the parties' agreement even though no divorce decree was
     entered, entry of a decree of separate maintenance did not
     foreclose the chancellor's exercise of jurisdiction to enforce
     the agreement.

3.   Family law -- chancellor has no authority to dispose of property rights in separate-
     maintenance award. -- Arkansas Code Annotated section 9-12-315(a)
     (Repl. 1993) has been interpreted to mean that marital
     property shall be distributed at the time the divorce decree
     is entered; a chancellor has no authority to dispose of
     property rights in an award of separate maintenance.

4.   Family law -- property settlement agreement -- case law does not prevent chancellor
     from enforcing. -- Although case law indicates that the chancellor
     cannot adjudicate marital property upon an award of separate
     maintenance, it does not prevent the chancellor from enforcing
     the parties' agreement.

5.   Family law -- property settlement agreement -- case reversed and remanded. --
     Emphasizing that its holding did not authorize the chancellor
     to adjudicate property rights, but that, pursuant to Ark. Code
     Ann.  9-12-313, the chancellor is authorized to enforce the
     parties' agreement made and entered into in contemplation of
     separation, the appellate court reversed and remanded for
     further proceedings.


     Appeal from Cleveland Chancery Court; Hamilton H. Singleton,
Chancellor; reversed and remanded.
     The Harper Law Office, by: Kenneth A. Harper, for appellant.
     Hilliard Law Office, by: Zenola M. Hilliard, for appellee.

     D. Franklin Arey, III, Judge.
     The Cleveland County Chancery Court granted appellant Margaret
B. Grider a decree of separate maintenance on her counterclaim
against the appellee, Grady Pat Grider.  However, the chancellor
declined appellant's request that he enforce the separation and
property settlement agreement previously entered into by the
parties.  On appeal, appellant contends the chancellor erred in
failing to enforce this agreement.  We agree that the chancellor
had the power to enforce the agreement, so we reverse and remand
this matter for further proceedings consistent with this opinion. 
     Appellant and appellee entered into a "Separation and Property
Settlement Agreement" in February of 1996.  The agreement noted the
parties' intent to live separate and apart for the rest of their
lives, and purported to determine their rights and obligations
during their separation.  It divided the parties' personal property
and allowed appellant the use of the marital home.  It specifically
stated that it constituted an independent contract of the parties
that would constitute a stipulation between them in any divorce
action.
     Appellee filed for divorce two months after the parties
entered into the agreement.  Appellant filed a counterclaim for
separate maintenance.  At trial, appellee failed to provide
corroboration of the alleged grounds for divorce, so the chancellor
granted a directed verdict against him.  Since appellant proved her
case, the chancellor entered a separate maintenance decree on her
counterclaim.
     Despite appellant's request, the chancellor did not enforce
the parties' agreement.  He believed that a decision on the
agreement's enforceability would be premature and inappropriate
because no decree of divorce had yet been awarded in the
proceeding.  
     We are asked to determine whether the chancellor has the power
to enforce an agreement that divides the parties' marital property
in the course of a proceeding that results in a decree of separate
maintenance.  Appellee contends that the chancellor lacked
jurisdiction to absolutely divide the parties' property in the
decree of separate maintenance.  In her own words, appellant
responds that she "is appealing the trial court's decision that it
lacked the power to enforce the [a]greement between the parties,
not its failure to proactively divide the property in its legal
separation order."
     The chancellor did have the power to enforce the parties'
agreement, even though no decree of divorce was entered.  "Courts
of equity may enforce the performance of written agreements between
husband and wife made and entered into in contemplation of either
separation or divorce...."  Ark. Code Ann.  9-12-313 (Repl. 1993). 
The agreement at issue indicates that it was "entered into in
contemplation of... separation"; it determined the rights and
obligations of the parties as to their marital property during
their separation.  Thus, section 9-12-313 provides the chancellor
with the power to enforce the agreement.
     This conclusion is supported by Strasner v. Strasner, 232 Ark.
478, 338 S.W.2d 679 (1960).  In that case, no action for divorce
was instituted by either party prior to our supreme court's
decision.  At issue was an agreement between the husband and wife
that divided their marital property, among other things.  The wife
brought an action in chancery court seeking specific performance of
the agreement.  The chancellor found that the agreement was valid,
decreed specific performance of the property settlement agreement,
and awarded the wife judgment for delinquent payments.  Id. at 480,
338 S.W.2d  at 680.  On appeal, the husband argued that the
chancellor lacked subject matter jurisdiction to enforce the
agreement because the wife had an adequate remedy at law for breach
of contract.  Our supreme court affirmed the chancellor's
jurisdiction, noting "that the Legislature settled the matter of
jurisdiction by the passage of Act 290 of 1941...."  Id. at 481,
338 S.W.2d  at 681.  Act 290 of 1941 is now codified as section 9-
12-313.
     Similarly, the enforcement of a separation and property
settlement agreement was at issue in Rucks v. Taylor, 282 Ark. 200,
667 S.W.2d 365 (1984).  The husband died after the parties entered
into an agreement, but before a divorce decree was granted.  The
supreme court found that the language of the agreement at issue
demonstrated an intent to terminate all property rights between the
parties with the signing of the agreement.
     While the agreement was to be incorporated into a divorce
     decree, if any, it was not contingent upon their
     obtaining a divorce.  The chancellor has jurisdiction
     over such agreements even in the absence of a divorce
     action.

Rucks, 282 Ark. at 202, 667 S.W.2d  at 366.  The deceased husband's
widow sought to take a piece of property by virtue of her
survivorship of an estate by the entirety with the deceased
husband; our supreme court affirmed the chancellor's enforcement of
a provision of the agreement requiring a sale of the property and
equal division of the proceeds.  Id.  
     This line of cases supports the proposition that the
chancellor had the power to enforce the parties' agreement even
though no divorce decree was entered.  Therefore, entry of a decree
of separate maintenance did not foreclose the chancellor's exercise
of jurisdiction to enforce the agreement.
     The chancellor relied upon another line of cases for the
proposition that marital property can only be distributed at the
time a divorce decree is entered.  See Kesterson v. Kesterson, 21
Ark. App. 287, 731 S.W.2d 786 (1987); Moore v. Moore, 21 Ark. App.
165, 731 S.W.2d 215 (1987); Coleman v. Coleman, 7 Ark. App. 280,
648 S.W.2d 75 (1983).  The cases cited by the chancellor articulate
the following rule:
     We have been unable to find any case holding that
     property rights are to be adjudicated upon the rendition
     of a decree of separate maintenance.  We held in the
     recent case of Mooney v. Mooney, 265 Ark. 253, 578 S.W.2d 195 (1979), that the property belonging to the parties
     could not be divided unless a divorce was granted.

Spencer v. Spencer, 275 Ark. 112, 114, 627 S.W.2d 550, 551 (1982). 
Similarly, we have read Arkansas Code Annotated section 9-12-315(a)
(Repl. 1993) to mean "that marital property shall be distributed at
the time the divorce decree is entered.  A chancellor has no
authority to dispose of property rights in an award of separate
maintenance."  Moore, 21 Ark. App. at 169, 731 S.W.2d  at 218.
     These cases are distinguishable and do not prevent the
chancellor's exercise of power in this instance.  They indicate
that the chancellor cannot adjudicate marital property upon an
award of separate maintenance.  However, they do not prevent the
chancellor from enforcing the parties' agreement.  Compare Ark.
Code Ann.  9-12-313 and Strasner, supra, with Moore, supra.  Our
holding in this case does not authorize the chancellor to
adjudicate property rights; rather, pursuant to the statute, the
chancellor is authorized to enforce the parties' agreement "made
and entered into in contemplation of... separation...."  See Ark.
Code Ann.  9-12-313.
     Reversed and remanded for further proceedings consistent with
this opinion.
     Robbins, C.J., and Bird, Neal, and Meads, JJ., agree.
     Griffen, J., dissents.


     Wendell L. Griffen, Judge, dissenting.  I disagree with the refusal
to follow our long line of cases holding that a chancellor lacks
the power to divide marital property absent a divorce decree.    In
Mooney v. Mooney, 265 Ark. 253, 578 S.W.2d 195 (1979), our supreme
court affirmed a chancellorþs refusal to divide marital property
where the appellantþs counterclaim for divorce was dismissed for
failure to prove grounds, and stated:
     The appellant asked the trial court to grant him a divorce and
     divide the property according to law. On appeal, the appellant
     asks us to do the same.  The property, of course, cannot be
     divided unless a divorce is granted.  

Id. at 256-57, 578 S.W.2d  at 197. 

     Likewise, in Spencer v. Spencer, 275 Ark. 112, 627 S.W.2d 550
(1982), the supreme court followed its decision in Mooney in a
divorce case where the appellant amended her original divorce
action to ask for separate maintenance.  The chancery court
rejected the appelleeþs complaint for divorce, and granted a decree
on appellantþs amended complaint for separate maintenance.  The
chancellor then divided the marital property, acting under Arkansas
Statute Annotated  34-1214 (Supp. 1979).  The supreme court
reversed and remanded the case with directions that the chancellor
enter an appropriate order, stating:
     Prior to Act 705 of 1979, Ark. Stat. Ann.  34-1214 provided:
     þIn every final judgment for divorce from the bonds of
     matrimony . . .þ the property rights were to be disposed of by
     the court.  The present act as amended states: þAt the time a
     divorce decree is entered . . .þ the property shall be divided
     in accordance with the formula set forth therein.  We have
     been unable to find any case holding that property rights are
     to be adjudicated upon the rendition of a decree of separate
     maintenance. (Emphasis added.)

Spencer, supra, 275 Ark. at 114, 627 S.W.2d  at 551.

     This court has followed the Mooney and Spencer holdings.  In
Coleman v. Coleman, 7 Ark. App. 280, 648 S.W.2d 75 (1983), we
reversed a chancellorþs action in distributing a certificate of
deposit to the appellee who was awarded a decree of separate
maintenance, and termed the order awarding the CD þan improper
final award of property.þ  In Moore v. Moore, 21 Ark. App. 165, 731 S.W.2d 215 (1987), we held that a chancellor had no authority to
divide stock owned by a husband to his estranged wife, even though
the couple was separated and a divorce action was pending, because
they had not been divorced.  In Kesterson v. Kesterson, 21 Ark.
App. 287, 731 S.W.2d 786 (1987), we stated: þThe appellant
correctly argues that the chancellor cannot enter an order
absolutely dividing the marital property in an order granting legal
separation.þ Id. at 291-92, 731 S.W.2d  at 789.
     The majority dismisses this line of cases from our supreme
court and our court by drawing a distinction between instances
where a chancellor adjudicates marital property upon an award of
separate maintenance and those cases where a chancellor enforces an
agreement by the parties to divide their property.  Perhaps this
distinction would matter if the law held that parties may contract
to vest jurisdiction in a court to engage in action that is
otherwise beyond its powers.  But no such rule has been cited by
the majority for good reason--it has never existed.  
     There is an obvious difference between having the power to
enforce an agreement that is within the power of the court to
adjudicate and having the power to engage in an  ultra vires act. 
Chancellors may enforce legally enforceable agreements because they
can enforce them.  They can enforce them because they have the
authority to enforce them.  They have the authority to enforce them
because the subject matter of the agreements falls within the scope
of the powers vested upon chancellors by the people of Arkansas,
from whom judicial power is obtained to do anything.  But the
people of Arkansas have never delegated to individual litigants the
authority to vest chancellors with power to distribute marital
property absent a divorce decree.  If that was the case, then
chancellors would be empowered to do whatever litigants agreed,
even if the agreements contravene public policy.
     The majority arrives at its remarkable conclusion by reading
Arkansas Code Annotated  9-12-313, as if the words of its final
clause do not exist.  That statute reads as follows:
     Courts of equity may enforce the performance of written
     agreements between husband and wife made and entered into in
     contemplation of either separation or divorce and decrees or
     orders for alimony and maintenance by sequestration of the
     property of either party, or that of his or her sureties, or
     by such other lawful ways and means, including equitable
     garnishments or contempt proceedings, as are in conformity
     with rules and practices of courts of equity.

As previously indicated, Arkansas has never recognized a power in
courts of equity to divide marital property except upon a decree of
divorce.  In fact, Arkansas Code Annotated  9-12-315(a)(1)(A)
(Repl. 1993) provides that all marital property shall be
distributed þat the time a divorce decree is entered.þ  (Emphasis
added.)  If parties to divorce actions could vest chancellors to
distribute marital property absent a divorce decree, then the
language of  9-2-315 makes no sense, and the final clause of  9-
12-313 that speaks of conformity with rules and practices of courts
of equity is useless verbiage.  
     It is also worth noting that the appellee in this case did not
agree to a division of the marital property in any event other than
a divorce decree.  The pertinent language of the separation and
property settlement agreement that the parties signed reads:
     It is clearly understood that this Agreement constitutes the
     independent contract of the parties, merger and incorporation
     by reference into any divorce decree notwithstanding, and the
     same may not be modified, altered, or changed, except by the
     mutual written consent of the parties.  The sole purpose of
     this Separation and Property Settlement Agreement with the
     decree is to confer jurisdiction upon the Chancery Court of
     Jefferson County (sic), Arkansas, for the purpose of
     enforceability through contempt proceedings.

     This agreement shall constitute a stipulation between the
     parties in any divorce action.  This is an independent
     contract to be merged into a chancery decree.  (Emphasis
     added.)

The chancellor was absolutely correct in his letter opinion when he
stated that the agreement contemplated a divorce proceeding rather
than a decree of separate maintenance, and that he could not enter
an order absolutely dividing property in a decree granting legal
separation.  Appellee did not agree to vest the chancellor with
jurisdiction to divide the marital property in the event of a
decree granting legal separation, and the agreement explicitly
provides that it may not be þmodified, altered, or changed, except
by the mutual written consent of the parties.þ  Even if the
majority is right about the chancellor having the power to enforce
agreements between the parties, it does not follow that a
chancellor has the power to enforce a non-agreement.  
     Arkansas law has never held that a chancellor has the power to
distribute marital property absent a divorce decree.  The only
issue presented to the supreme court in Strasner v. Strasner, 232
Ark. 478, 338 S.W.2d 679 (1960), was whether a written property
settlement agreement was amenable to an action for specific
performance where an alleged nonbreaching party had a complete and
adequate remedy at law.  The supreme court did not hold that a
chancery court has the power to distribute marital property into a
separate maintenance action simply because the parties entered into
a written property settlement agreement. 
     I refuse to engage in the amazing notion whereby the plain
language of an agreement that contemplates a þdivorce decreeþ is
construed to mean a decree for separate maintenance.   I also will
not pervert the meaning of the agreement and the plain language
that prohibits it from modification, alteration, or changing
þexcept by the written consent of the partiesþ by a conclusion that
the agreement can be modified, altered, or changed without that
consent, not to mention over the objection of a party.  A court of
equity, of all entities, has no power to compel a party to
specifically perform what he never agreed to do, especially when
the explicit condition relative to his performance is lacking.
     Public policy shapes the rules followed by courts of equity
and defines the practices and prescribes the powers of chancellors,
not private contracts.  Litigants may not constitute a law unto
themselves for their private convenience and in the face of a
settled body of case and statutory law.  Before today, our court
appeared to understand this reality; it now appears to have
forgotten it.  Perhaps the supreme court will issue a reminder if
it chooses to grant a petition for review of the majority decision. 
Meanwhile, I dissent.