David C. Jacks v. Sandra J. Jacks

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION I

DAVID C. JACKS

APPELLANT

V.

SANDRA J. JACKS

APPELLEE

CA00-930

May 23, 2001

APPEAL FROM THE JEFFERSON COUNTY CHANCERY COURT

[NO. E99-525-2]

HONORABLE LEON N. JAMISON,

CHANCELLOR

AFFIRMED

Appellant, David C. Jacks, appeals the chancellor's decision ordering him to pay appellee, Sandra J. Jacks, alimony for her education pursuant to a settlement agreement entered into between the parties. On appeal, appellant contends the chancellor's decision was clearly erroneous because his obligation to pay alimony ceased as a result of appellee's failure to comply with the terms of the agreement. We affirm the chancellor's decision.

The parties did not reduce their settlement agreement to a formal, written document but instead orally presented the agreement to the chancellor. Thus, it was the record of stipulations made before the chancellor that memorialized the parties' agreement and now forms the basis of this action. In the divorce decree filed November 17, 1997, the parties acknowledged that the agreement was an independent agreement that was not subject to modification by the chancellor.

Appellant's attorney stated for the record that "the parties have agreed that [appellee]

will receive $5,000 per month in support up to five years ... with the ... idea that she is to proceed in the nurse-practitioner program, which I understand to be a master's nursing degree." Appellant's attorney noted that "there are certain preliminary courses she will need to take on an undergraduate level to get her prepared for that." According to appellant's attorney, appellee had to be a "full-time student," that is, for undergraduate courses, "at least twelve hours per semester." Further, once appellee entered the master's degree program, she would have to be a full-time student making passing grades, "and otherwise proceed in a normal manner ... academically in completing that program." Appellant's attorney further noted that if appellee failed to complete the program, appellant's support would terminate.

The attorney for appellee then stated that, as he understood it, "normal academic progress and making passing grades would mean as long as the school allows her to stay in school, then she's meeting those qualifications." Appellant's attorney sought to clarify the point, stating that "if she is unable to complete a semester, then she's not proceeding in a normal, academic manner ...." Appellant's attorney further stated, "We want it flexible, but then, again, we want to make sure that if [appellee] is simply not cutting it in the program, we're not continuing to fund her endeavor in a program she's not going to be able to complete ...." Appellee's attorney replied that he did not "see it as a big downside for [appellant] to say that as long as she's in school, making progress, and they're allowing her to be a full-time student, that that's good enough." The parties agreed that appellee would begin school in January 1998.

Appellant paid alimony under the agreement from September 1997 to January 1998,when appellee began school, but failed to pay from February 1998 to December 1998, even though appellee was enrolled during the spring and fall semesters of 1998. In November of 1998, appellee filed a petition to hold appellant in contempt for failing to make payments pursuant to the agreement. Appellant asserted in reply that he was not obligated to make payments because, although appellee was attending school, she failed to comply with the conditions precedent to receiving the payments by being a full-time nursing student making a normal progression to obtain a master's degree in nursing within five years.

During the hearing on appellant's petition for contempt, appellee presented the testimony of Irene Henderson, the Director of Nursing at the University of Arkansas at Pine Bluff, who testified that appellee is a full-time student, taking twelve or more hours each semester, and further, is taking the courses recommended by the faculty to obtain her baccalaureate degree in nursing. Appellee also presented the testimony of Karen Chapman, a recruiter for the College of Nursing at the University of Arkansas for Medical Sciences, who testified that appellee had to obtain a baccalaureate degree in nursing before she could obtain a master's degree. Chapman testified that appellee "is on track taking the courses I advised her to take." According to Chapman, "[Appellee] is most definitely headed in the direction for which she sought my advice." Chapman, however, further testified that assuming a "best case scenario" and assuming appellee continued her present course of study, she would need six and one-half years to obtain a master's degree in nursing.

The chancellor did not find appellant in contempt but did order appellant to make the $5,000 alimony payments along with the accrued arrearages. In his findings of fact andconclusions of law, the chancellor concluded that the "settlement agreement provides that [appellee] is to receive $5,000 per month in alimony for five years, provided [appellee] is a full time student working toward" the master's degree and carrying twelve credit hours. The chancellor concluded that appellee was complying with the terms of the agreement. In his motion for reconsideration, appellant argued that the chancellor clearly erred in concluding that appellee was proceeding in a normal academic manner to obtain a master's degree because appellee could not do so within five years. Appellant then filed this appeal.

For reversal, appellant argues that the chancellor erred in finding that appellee was proceeding in a normal academic manner to obtain a master's degree in nursing because the parties contemplated that it would not take more than five years for appellee to obtain a master's degree. He further argues that appellee was not a "full-time student" and did not proceed in a "normal academic manner" as those phrases are otherwise defined by the agreement. We disagree with appellant on these points.

"Questions relating to the construction, operation, and effect of separation agreements between husband and wife are governed, in general, by the rules and provisions applicable in the case of other contracts generally." Sutton v. Sutton, 28 Ark. App. 165, 167, 771 S.W.2d 791, 792 (1989). "When parties execute an independent property-settlement agreement that is incorporated into a decree of divorce, it cannot subsequently be modified by the court." Houston v. Houston, 67 Ark. App. 286, 287, 999 S.W.2d 204, 205 (1999). "When a contract is unambiguous, its construction is a question of law for the court." Id. "Though we review chancery cases de novo on appeal, we will not reverse the findings offact of a chancellor unless the decision was clearly erroneous." Riley v. Riley, 61 Ark. App. 74, 76, 964 S.W.2d 400, 401 (1998).

We conclude that there is no ambiguity in the settlement agreement. Nothing in the transcript of the oral agreement suggests that appellee must complete the master's degree within five years. Under the terms of the agreement, appellant was to provide appellee with "$5,000 per month in support up to five years" to obtain a master's degree in nursing. Clearly, the five-year limitation defined the period during which appellant was obligated to provide support; the agreement did not obligate appellee to complete the program within that period. Appellee further presented testimony that she was, as defined by the agreement, a full-time student by taking a minimum of twelve hours each semester. The chancellor's finding of fact that she was a full-time student was not clearly erroneous. Furthermore, nothing in the agreement suggests that appellee is a full-time student only if all twelve hours are, as described by appellant, "prerequisite courses." Instead, the agreement anticipated appellee taking certain preliminary courses, and Henderson testified that appellee is taking the courses recommended by the faculty to obtain her baccalaureate degree in nursing. Moreover, she was proceeding in a "normal academic manner," as defined by the agreement, by remaining in school. Again, the chancellor's finding of fact that she was working toward the master's degree was not clearly erroneous.

While appellant further contends that Chapman's testimony that appellant was "on track" is not to be believed because of what he considers contradicting testimony from Chapman, we defer to the chancellor's determination of the credibility of witnesses and theweight to be accorded to their testimony. See, e.g., Oliver v. Oliver, 70 Ark. App. 403, 405, 19 S.W.3d 630, 632 (2000). Thus, we affirm.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.