Mark Fisher v. Lori Fisher

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

MARGARET MEADS, JUDGE

DIVISION II

MARK FISHER

APPELLANT

V.

LORI FISHER

APPELLEE

CA00-400

November 15, 2000

APPEAL FROM THE YELL COUNTY CHANCERY COURT, SOUTHERN DISTRICT [NO. E-99-9]

HON. VAN B. TAYLOR,

CHANCERY JUDGE

REVERSED

This is an appeal from an Order to Sell Real Property. The parties in this case were divorced by decree entered March 2, 1999, which incorporated a property-settlement agreement entered into by the parties. The agreement, which was signed by the parties and notarized, provided that:

[I]t is the desire and intention of the parties that all rights, interest, liabilities and relations, with respect to property and financial matter [sic] be finally and conclusively fixed and determined by this agreement in order to settle and determine in all respects and for all purposes their respective present and future property rights, claims and demands in such a manner that any action with respect to the rights and obligations, past, present and future, of either party, with respect to the other, be finally and conclusively settled and determined by this agreement.

Paragraph VIII of the agreement provided that appellant, Mark Fisher, should have the parties' home located at Rt. 1, Box 234, Havana, Arkansas, which is subject to indebtedness owed to Leslie Fisher and Danville State Bank, as his own separate property and that he

"shall make his best efforts to re-finance and/or remove the wife's name from the above mentioned mortgage." There was a similar provision awarding property located at Rt. 1, Box 234A, which is subject to indebtedness owed to Principal Residential Mortgage Company, to appellee Lori Fisher. Ms. Fisher was also to "make her best efforts to re-finance and/or remove the husband's name from the above mentioned mortgage."

On August 20, 1999, appellee filed a petition for contempt in which she alleged among other things that appellant had not removed her name from the mortgage at Danville State Bank. In October 1999, the court ordered appellant to attempt to refinance the house or the court would consider a judicial sale. On November 24, 1999, appellee filed a Petition to Sell Real Property alleging that appellant had not taken her name off the property; that appellant is unable or unwilling to follow through with the agreement he made and the orders of the court; and that there is an impossibility of performance of the property-settlement agreement. Appellant asked that the agreement be set aside and that all real property be sold at judicial sale. On December 30, 1999, the chancellor entered an Order to Sell Real Property granting appellee's petition on the finding that it is impossible for the parties to carry out the terms and conditions of the property-settlement agreement.

At the hearing on appellee's petition, appellant testified that he made attempts to refinance the property through Danville State Bank, Transamerica, Ditech and First State Bank, but was unable to do so. Appellee testified that she wanted the court to divide everything up.

Appellee's counsel conceded that the trial court could not modify the property-settlement agreement, but argued that appellant could not do what he agreed to do and that this amounted to an impossibility of performance. Appellee asked the court to modify the agreement, because it was impossible to perform. Appellant's counsel argued that appellant only agreed to make his best efforts to refinance the property and to remove appellee from the debts; that he attempted to refinance in good faith; and that he lacked the ability to do so. Further, counsel argued that appellant had complied with both the property-settlement agreement and the court's October 1999 order. In an order entered December 30, 1999, the trial court granted appellee's petition to sell the property on the finding that it was impossible for the parties to carry out the terms and conditions of the property-settlement agreement.

Appellant's only argument on appeal is that the trial court erred in modifying the parties' property-settlement agreement. We agree.

The burden of proving impossibility of performance rests on the party alleging it; it must be shown that the thing to be done cannot be effected by any means. Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979). Under the terms of the parties' agreement appellant was required only to "make his best efforts to re-finance and/or remove the wife's name" from the mortgage; nothing more was required of him in this regard. Appellant testified that he made attempts to refinance the property through four different institutions, but was unable to do so. Appellant did what he agreed to do, and the trial court erred in finding that it was impossible for the parties to carry out the terms and conditions of the property-settlement agreement.

When parties to a divorce execute an independent property settlement agreement that is incorporated into a decree of divorce, it cannot be subsequently altered or modified by the court. Gentry v. Gentry, 327 Ark. 266, 938 S.W.2d 231 (1997). An exception not applicable here is in child custody and support matters, where it has been held that provisions in such independent contracts dealing with child custody and support are not binding. Warren v. Kordsmeier, 56 Ark. App. 52, 938 S.W.2d 237 (1997).

Here, the agreement does not require that appellant be successful in his efforts or that the property be sold if he were unsuccessful, only that he make his best efforts. The fact that appellee entered into an agreement which later appeared improvident to her is no ground for relief. Helms v. Helms, 317 Ark. 143, 875 S.W.2d 849 (1994).

Reversed.

Hart and Pittman, JJ., agree.