Diana M. Maulding v. Elsie E. Heasley

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CA00-989

MARCH 21, 2001

DIANA M. MAULDING

APPELLANT APPEAL FROM THE PULASKI

COUNTY CHANCERY COURT

v. [EQ 98-4078]

ELSIE E. HEASLEY HONORABLE ELLEN BASS

APPELLEE BRANTLEY, CHANCERY JUDGE

AFFIRMED

Diana Maulding appeals from a decision denying her request to force Elsie Heasley to sell to her Elsie's interest in certain property pursuant to a Family Settlement Agreement provision requiring Elsie to sell her interest in the property if she ceased to reside in the residence located on the property. Appellant argues that the chancery court erred in finding that Elsie has not ceased to reside at the residence. Appellant also contends that the trial court erred in finding that Elsie has not violated the terms of the agreement by failing to keep the property insured.

Carl Heasley died on January 4, 1992. His estate was settled by a Family Settlement Agreement ("FSA"). Pursuant to the agreement, Mr. Heasley's widow, Elsie Heasley, tooka 1/3 life estate in property located at 13301 Ironton Road, Little Rock, Arkansas, designated as Tract A in the FSA, with the sole right to reside at the residence located on the property. The FSA provides in relevant part:

In the event Elsie Heasley ceases residing on Tract A, it shall be leased subject to the management of Carol Ann Heasley and the rent and operating expenses shall be divided one-third to Elsie Heasley and two-thirds to Carol Ann Heasley; provided that, at any time after Elsie Heasley so ceases to reside, Carol Ann Heasley shall have the option to purchase Elsie Heasley's one-third life estate in Tract A for the fair market value of her interest at that time.

The FSA also required Elsie to maintain casualty and liability insurance coverage for the property and to pay all taxes on the property. If Elsie failed to perform these duties, the FSA provided Carol Ann Heasley, appellant's aunt, with all legal and equitable rights and remedies allowed to a remainderman.

Carol Ann Heasley died on October 26, 1996, and appellant acquired her interest in the property. Appellant subsequently brought suit seeking to enforce the FSA. She alleged that Elsie, age seventy-eight at the time of the trial, ceased to reside at 13301 Ironton Road, and she sought a forced buy-out of Elsie's 1/3 life estate; alternatively, appellant claimed that Elsie had failed to insure the property.

At trial, appellant testified that during Carol Ann Heasley's lifetime, appellant had written letters to Elsie regarding the condition of the residence. Specifically, appellant stated that she had written letters to Elsie regarding the overgrown condition of the lawn and the presence of a fallen apple tree had remained on the property for an extended period. Appellant also testified that she wrote a letter to Elsie on behalf of Carol Ann regarding the growth of a mimosa under the foundation of the home. After Carol Ann died and appellant acquired her remainder interest in the property, appellant contacted Elsie's attorney regarding a board that had fallen from the roof line of the residence and had not been replaced.

Appellant argued that the physical condition of the residence and surrounding property when viewed in conjunction with other observations proves that Elsie no longer lived at the residence. Appellant testified that beginning in October 1996, she and Carol Ann observed a collection of chairs lining the front walkway of the house. According to appellant, the chairs were not moved until sometime after August 1998. She stated that the chairs blocked the entire walkway and that they left insufficient room to use the walkway for entry to the home. She further testified that the appearance of the home's interior in February 1999, indicated that no one lived there. Appellant testified that before her 1999 visit to the residence she had last visited the house in 1992. According to the appellant, the house was cluttered in 1992, but furniture was in normal positions and one could walk though the house. By 1999, however, appellant testified that there was nothing but a path through the house. According to appellant, the house was packed full of stored furniture and property. She stated that boxes and shelving filled the hallway and that cereal and snack boxes covered the kitchen counters. Appellant also stated that dishes were in the kitchen sink and that one old and one new refrigerator had been placed in the kitchen. Moreover, she testified that the beds were unmade and that a comforter was thrown on boxes stackedin front of the closet. Appellant also stated that she had driven by the home on numerous occasions and seldom saw a light on even as early as 5:30 p.m.

As further evidence that Elsie no longer lived at the residence, appellant introduced Elsie's electricity, gas, and water records. Appellant emphasized Elsie's water usage during the years after Carl's death. Water usage records for 1991, the last year in which both Elsie and Carl lived in the house, show that water consumption ranged from four to seven units per month. In 1992, consumption ranged from two to nine units per month. In 1993, Elsie consumed from three to eleven units of water a month per month, and from January 1994, until August 1994, Elsie consumed between zero and two units of water per month, including zero consumption for the months of May and July 1994. The trial court could not ascertain how much water Elsie used from December 1994, through February 1999, because the records only indicate how much she was charged for water usage. During that period, however, she consistently paid $5.40 for water usage except for the months of July and August 1998 in which she paid $8.73 and $7.62 respectively. From February 1999, through March 2000, the water records indicate that Elsie consistently used two units of water per month, except for the months of June 1999 through August 1999 when she used one unit of water per month and November 1999 when she used three units of water.

With respect to the insurance policy, appellant testified that after Carol Ann died, appellant called Farm Bureau to determine if Elsie had listed her as a beneficiary to the policy. Appellant stated that she learned that she was not listed as a beneficiary and that the address listed for the covered property was 14613 Ironton Road. Elsie owns a home locatedat 14613 Ironton Road where her son, a convicted arsonist, lives. Appellant introduced a "Homeowner Policy Change Request" dated July 16, 1998, showing that she was added as the named insured and that the location address was changed to 13301 Ironton Road. Under comments, the policy change states "This is correct address for the home."

Appellant's mother, Velma McWilliams, also testified regarding Elsie's occupancy of the residence. Mrs. McWilliams testified that she lives in a house at the rear of the residence. Mrs. McWilliams stated that in February 1996, her husband repaired a portion of the roof at the residence at the request of Carol Ann. Carol Ann paid for the repairs. Mrs. McWilliams also testified that in the years after 1992, she has not seen any sign that anyone lives at the residence. Mrs. McWilliams testified that nothing is ever moved outside and that she never sees anyone outside the house. She also testified that the grass is often a foot tall or taller before the lawn is mowed. She did admit, however, that she occasionally sees a light shining in the living room.

Elsie Heasley testified that she still lives at the house. She stated that she watches a lot of television but that she seldom turns on the lights. Elsie also testified to being away from the house for extended periods on at least three occasions because of illness. Kathy Edwards, Elsie's daughter, testified that Elsie stayed with her in 1998 for about six months because of depression. Elsie also stayed with Ms. Edwards for an extended period in 1999 as she recovered from eye surgery and on one other occasion while suffering from heart problems. When asked about the repairs performed on the house in 1996, Elsie testified that she never thought the roof needed repair and that she never paid Carol Ann any moneybecause Carol Ann never asked. With regard to the insurance coverage, Elsie testified that Farm Bureau made a mistake on the address of the home and that she had the mistake corrected as soon as she learned of it. Ms. Edwards testified that Elsie owned the house at 14613 Ironton Road prior to marrying Carl. According to Ms. Edwards, the home at 14613 Ironton Road was originally insured with Allstate Insurance, but that Carl convinced Elsie that they should use the same insurance company for all their property. At some point, Ms. Edwards observed that the insurance policy described the residence at 13301 Ironton Road as a sided home. Ms. Edwards testified that she became concerned that the home at 14613 Ironton Road was not covered and that she called the insurance company to inform it that the home at 13301 Ironton Road was brick and that the home at 14613 Ironton Road was sided. Ms. Edwards and Elsie both testified that they never intended to have coverage moved from 13301 Ironton to 14613 Ironton and did not believe that that had happened.

Elsie also testified about an incident in which an intruder broke into her home. Elsie testified that she was sitting on the couch in the middle of the day with the television and lights off when she heard glass breaking. She testified that she then saw someone standing in her house. She stated that she yelled and the intruder ran. Elsie attempted to introduce the police report memorializing this incident, but the court ruled that the report was inadmissible hearsay.

At the conclusion of the trial, the court observed that the house did not have a real kempt look, and stated that it believed that the appellant and her witnesses gave truthful testimony. The court noted that the water bills do not show much usage, but noted that Elsieconsistently paid $20.00 to $30.00 per month for water both before and after Carl died. The court concluded that the bills were not totally out of line and that the bills were not enough to refute the direct testimony of Elsie and her daughter that Elsie continued to live at the residence. The court also explicitly stated that it believed Elsie's testimony regarding the intruder in the home. Finally, the court noted that the decreased level of utility usage could be attributed to the time Elsie spent at her daughter's home while recovering from several illnesses rather than a desire to stop living at the home. The court also concluded that it could not find that the house was not insured.

Although we review chancery cases de novo on the record, we do not reverse unless we determine that the chancery court's findings were clearly erroneous. Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999). A chancery court's finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). In reviewing a chancery court's findings, we defer to the chancellor's superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).

For her first point on appeal, appellant argues that the trial court erred in finding that Elsie had not ceased to reside at the residence. "[T]he first rule of interpretation is to give to the language employed by the parties to a contract the meaning they intended." Koppers Co. v. Missouri Pacific R.R. Co, 34 Ark. App. 273, 277, 809 S.W.2d 830, 832 (1991). Appellantargues that when the agreement is read as a whole, it is clear that the parties intended that if Elsie Heasley moved out of the house, the house would be rented or sold to Carol Ann Heasley. She argues that Elsie admitted to being away from the house for extended periods on at least three occasions and that the utility records show that Elsie is not living at the residence. Thus, appellant argues that Elsie has ceased to reside at the home.

Appellant's argument that Elsie's stays with her daughter proves that appellant ceased to reside at the residence taken to its logical conclusion would require a finding that she ceased to reside at the residence even if she were admitted to a hospital. We cannot agree with this argument. In this case, the chancery court, in its superior position to determine credibility, explicitly stated that it believed Elsie and her daughter regarding Elsie's illnesses and Elsie's testimony regarding her confrontation with an intruder in the residence. Moreover, that Elsie continued to maintain electricity, water, and gas service at the home indicates her desire to continue to live there. Based on the record in this case, we are not left with the definite and firm conviction that the trial court committed a mistake in finding that Elsie has not ceased to reside at the residence.

Similarly, we cannot conclude the chancellor clearly erred when she found that the home remained insured. The only evidence that supports appellant's claim that the home was not insured at any time consists of her testimony regarding her conversations with persons from the insurance company and the policy change form. The court, however, also heard testimony indicating that the home was always insured and that the policy change form was necessitated by the insurance company's mistaken description of other property thatElsie also insured with Farm Bureau. Again, in light of the deference owed to the chancellor on credibility determinations, we cannot conclude that the chancellor was clearly erroneous.

Affirmed.

Stroud, C.J., and Jennings, J., agree.