Carol Dora Cochran a/k/a Carol Dora Darnell v. Mickey Alan Cochran

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, CHIEF JUDGE

DIVISION III

CAROL DORA COCHRAN a/k/a

CAROL DORA DARNELL

APPELLANT

V.

MICKEY ALAN COCHRAN

APPELLEE

CA 00-7

SEPTEMBER 20, 2000

APPEAL FROM THE FULTON

COUNTY CHANCERY COURT

[NO. E-87-4]

HONORABLE JOHN NORMAN

HARKEY, CHANCERY JUDGE

AFFIRMED

Appellant Carol Dora Cochran (now Darnell) and appellee Mickey Alan Cochran were divorced on February 12, 1988. At the time of their divorce, the parties entered into a property settlement agreement that was incorporated into the decree. One of the provisions in the agreement dealt with retirement benefits that Mr. Cochran had accumulated prior to the date of divorce. A dispute arose over the interpretation of the language in the agreement and decree, and on August 27, 1998, Ms. Darnell filed a petition asking the chancery court to interpret the disputed language. Specifically, she requested a finding that, upon Mr. Cochran's retirement, she will be entitled to the benefit of stock-value increases and stock splits with respect to the shares of stock in Mr. Cochran's retirement account that occur

after the time of divorce. In his answer, Mr. Cochran alleged that the property settlement agreement is clear on its face and that Ms. Darnell should only be entitled to the value of herstock in the retirement plan at the time of divorce. After a hearing was held and both parties testified, the chancery court agreed with Mr. Cochran that the disputed language is clear on its face, and entered a declaratory judgment that provided that Ms. Darnell is not entitled to any increases realized after the date of divorce. Ms. Darnell now appeals this order, contending that the chancery court erred in interpreting the provision relating to the division of Mr. Cochran's retirement benefit.

The pertinent part of the property settlement agreement provides:

Husband is currently employed with Century Telephone Enterprises, Inc., and as such employee has various stock ownership plans, profit and pension plans as have accumulated through his employment with said company. As to any stock ownership or savings plan which is currently liquid at the time of this agreement, husband agrees to cause same to be surrendered in full and pay wife one-half (1/2) of the profit sharing plans that husband now has through his employment with Century Telephone Enterprises, Inc., the same having been vested prior to separation, and being valued as of the date of the execution of this agreement, the parties agree that this Court shall reserve jurisdiction over this matter until the retirement is achieved by husband and, at such time as it is achieved, divide the interests between husband and wife in accordance to a ratio bearing wife's one-half (1/2) share of the vested retirement now due and owing husband upon such retirement or no longer being employed by the employer, or at such time as husband begins to receive monetary benefits by reason of such retirement plan, in a percentage as same bears to the total retirement plan of husband as such time as he begins to draw same. (I.E., if husband at the time of this agreement is entitled to receive, as retirement or pension benefits, the sum of One Hundred Dollars ($100) per month for the remainder of his life, wife shall receive Fifty Dollars ($50) per month from that sum. If husband thereafter continued to work for his employer, and, at the time of retirement was entitled to receive the sum of Two Hundred Dollars ($200) per month, wife would still receive the sum of Fifty Dollars ($50) per month, as has been fixed by the date of this agreement.)

At the hearing, Ms. Darnell testified that, prior to the divorce, she and Mr. Cochranhad several conversations about the stock arrangement. She stated that they discussed having Mr. Cochran buy her interest in the retirement plan at the time of their divorce, but that he told her she would be better off to leave the stock in the pension plan and that she would be glad that she did. She acknowledged that if he continues to keep working and contribute to the plan, the further contributions are solely his. However, her understanding was that she would be entitled to the benefit of stock splits and value increases relating to her shares of the stock, and she testified that she would never have agreed to leave the stock in place had she known that Mr. Cochran was to receive all of the growth and increase.

Mr. Cochran testified on his own behalf, and he stated that it was his understanding that after the divorce his ex-wife would not share in any increase in the value of the stock. He testified that he is continuing to work and has no plans to retire, and that after the divorce he did not want to continue to make money for someone else.

For reversal, Ms. Darnell contends that the chancery court erred in interpreting the parties' agreement because the agreement provided for an equal distribution of the retirement account. Ms. Darnell submits that equal distribution must necessarily include any increase in value that occurs with regard to the stock she was entitled to and awarded at the time of divorce. She notes that the divorce decree fails to reference an exact amount that she will receive upon her ex-husband's retirement, and asserts that this omission clearly contemplates a future increase in her entitlement. Ms. Darnell further points out that the chancery court stated in the decree that it reserved jurisdiction over the matter until Mr. Cochran's retirement, and argues that such language is inconsistent with the court's ruling that herinterest in the pension is fixed. Alternatively, Ms. Darnell cites Womack v. Womack, 307 Ark. 269, 818 S.W.2d 958 (1991), for the proposition that if a judgment is ambiguous, its legal effect governs, and asserts that the legal effect of the parties' divorce decree dictates an equal distribution of the stock including any subsequent increase in its value.

A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Boatman's Ark., Inc., v. Farmer, 66 Ark. App. 240, 989 S.W.2d 557 (1999). When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court's duty to construe the writing in accordance with the plain meaning of the language employed. Id. Different clauses of a contract must be read together and the contract construed so that all of its parts harmonize, if that is at all possible. Pate v. U.S. Fidelity and Guaranty Co., 14 Ark. App. 133, 685 S.W.2d 530 (1985). The intention of the parties is to be gathered not from particular words and phrases but from the whole context of the agreement. Id.

In the instant case, we find no error in the chancery court's finding that the property settlement agreement signed by the parties is clear on its face and not ambiguous. We further find no error in the chancery court's construction of the agreement in favor of the position advanced by Mr. Cochran.

As Mr. Cochran points out in his brief, the property settlement agreement provides for distribution of the retirement account "being valued as of the date of the execution of this agreement." Moreover, the agreement provides that, upon Mr. Cochran's retirement,Ms. Darnell is to receive her "one-half (1/2) share of the vested retirement now due." Finally, the example given in the relevant portion of the agreement indicates that, if Mr. Cochran continues to be employed, Ms. Darnell's share of the pension upon his retirement will not increase in that it "has been fixed by the date of this agreement." We hold that, in light of these terms in the agreement, the chancery court correctly determined as a matter of law that the parties' agreement did not provide for an increase in Ms. Darnell's share of the pension based on any future stock splits or value increases. The fact that the decree fails to calculate the exact amount owed to Ms. Darnell upon Mr. Cochran's retirement, but instead delays the calculation and distribution until that time, does not alter the plain meaning of the agreement.

A chancery court's finding will not be disturbed unless clearly erroneous. Thomas v. Thomas, 68 Ark. App. 196, 4 S.W.3d 517 (1999). In the case at bar the chancery court did not clearly err in finding that Ms. Darnell was not entitled, by the terms of the property settlement agreement, to the relief requested in her petition. Therefore, we affirm the declaratory judgment issued by the chancery court.

Affirmed.

Crabtree and Meads, JJ., agree