Charles C. Cooper v. Louise C. Cooper

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CA00-853

MAY 23, 2001

CHARLES C. COOPER

AN APPEAL FROM THE GARLAND APPELLANT COUNTY CHANCERY COURT

v. [99-1095-1]

LOUISE C. COOPER HONORABLE EDWARD T. APPELLEE SMITHERMAN, CHANCERY JUDGE

AFFIRMED

Appellant, Charles C. Cooper, appeals an order of the Garland County Chancery Court finding him in contempt of the court's prior divorce decree and ordering him to turn certain property over to Ms. Cooper. We find no error and affirm.

On February 4, 2000, the Garland County Chancery Court awarded Ms. Cooper a divorce from appellant. In addition to granting the divorce, the divorce decree provided for a specific division of property between Mr. and Ms. Cooper. Finally, the decree included a provision stating:

All other property not mentioned specifically in this Decree of Divorce has been equitably divided between the parties. and each party shall be entitled to sole ownership of any property in his or her possession at the time of the entry of thisDecree of Divorce. Except as set out below[,] any outstanding liens, indebtedness, taxes, or insurance obligations attached[,] connected[,] associated, or owed shall be the sole responsibility of the party attaining ownership of said personal property under the terms of this paragraph and he or she shall hold the other harmless and free of any claims of liability thereon.

On February 18, 2000, Ms. Cooper filed a Motion for Contempt, alleging that Mr. Cooper had failed to deliver to her many of the items awarded to her in the divorce decree. Among other items, Ms. Cooper alleged that Mr. Cooper had not delivered to her an engagement ring; the monitor, printer and software that should have accompanied the couple's computer; and the hoses to the washing machine. Ms. Cooper also alleged that Mr. Cooper had damaged several of the items that he was ordered to turn over to her.

Mr. Cooper responded, arguing that he should not be found in contempt because he had not violated the divorce decree. He argued that the decree provided that he was to deliver to Ms. Cooper her "wedding ring" and the "computer"and that the engagement ring, monitor, printer, software and hoses were not specifically mentioned in the decree. Therefore, according to Mr. Cooper, he was not ordered to deliver those items to Ms. Cooper.

After a hearing on Ms. Cooper's motion, the court found that Mr. Cooper was in contempt of the divorce decree and ordered him to deliver to Ms. Cooper the engagement ring, all of her personal property, and all of her mother's personal property. The court also ordered Mr. Cooper to repair the damaged items awarded to Ms. Cooper and to allow Ms. Cooper to conduct a walk-through inspection of the parties' marital home in order to preparean inventory list of the marital property not listed in the divorce decree and to agree as to that property's division or prepare it for a sale and division of the proceeds.

In this appeal, Mr. Cooper presents two points for reversal. For his first point, he argues that the trial court denied him due process and equal protection of the laws. We do not reach this argument because it has not been preserved for appeal. From our review of appellant's abstract, it does not appear that this issue was raised before the trial court, and we will not address a constitutional issue if it was not brought to the trial court's attention for a ruling. Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999).

For his second point on appeal, Mr. Cooper alleges that the trial court improperly amended the divorce decree by awarding to Ms. Cooper property not specifically mentioned in the original decree. Under our law, two types of property settlement agreements are recognized. Seaton v. Seaton, 221 Ark. 778, 225 S.W.2d 954 (1953); McGaugh v. McGaugh, 19 Ark. App. 348, 721 S.W.2d 677 (1986). A distinction is made between independent contracts, which do not merge into the decree and are not subject to modification by a trial court, and those less formal agreements which do merge and become part of a decree of divorce. Shipley v. Shipley, 305 Ark. 257, 807 S.W.2d 915 (1991); Seaton v. Seaton, supra; Kennedy v. Kennedy, 53 Ark. App. 22, 918 S.W.2d 197 (1996); Dodson v. Dodson, 37 Ark. App. 86, 825 S.W.2d 608 (1992); Linehan v. Linehan, 8 Ark. App. 177, 649 S.W.2d 837 (1983).

As the party asserting the existence of an independent contract, Mr. Cooper maintained the burden of establishing its existence. Law v. Law, 248 Ark. 894, 455 S.W.2d 854 (1970). In support of his contention that he and Ms. Cooper entered into a separate property settlement agreement, Mr. Cooper cites the initialed corrections on the decree, the appellee's statement in her brief indicating that the divorce was granted as an uncontested matter, and the fact that property rights were determined in the decree which was approved by both parties prior to its submission to the court. Mr. Cooper's proof does not sufficiently establish that he and Ms. Cooper entered into an independent property settlement agreement. In Seaton v. Seaton, supra, our supreme court stated that an independent property settlement will usually be in the form of a separate written agreement. The court has also held that an independent agreement may be in the form of a complete property settlement that is dictated into the record. Shipley v. Shipley, supra. If the parties intend for an agreement that is dictated into the record to constitute an independent agreement, however, they should so state. Id. In the present case, we have been shown no separate written agreement nor does the decree mention any separate agreement. Moreover, it seems clear in this case that the parties were agreeing to the contents of the suggested decree when they signed it and presented it to the chancellor. As the decree did not mention any separate agreement, and there is nothing, written or otherwise, showing that Mr. and Ms. Cooper intended that any agreement be enforceable separately from the decree, we cannot conclude that the chancellor erred in modifying the divorce decree.

Affirmed.

Pittman and Bird, JJ., agree.