Alfred Loring v. Cathy Loring

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

ALFRED LORING

APPELLANT

V.

CATHY LORING

APPELLEE

CA 01-998

March 20, 2002

APPEAL FROM THE PULASKI

COUNTY CHANCERY COURT,

SIXTH DIVISION,

[ESM 99-2531]

HONORABLE MACKIE M.

PIERCE, JUDGE

AFFIRMED

Appellant, Alfred Loring, and appellee, Cathy Loring, were divorced in 1999. In the decree, among other things, Cathy was awarded possession of the marital home, and beginning in October 1999, Alfred was ordered to pay one-half of the mortgage payment as spousal support.

Cathy filed a motion for contempt against Alfred in March 2000. One of the allegations in her motion was that Alfred had failed to pay one-half of the mortgage payment on the marital home. A hearing on this motion was held on April 28, 2000, and the chancellor refused to hold Alfred in contempt. However, Alfred was instructed to pay his portion of the mortgage payment to Cathy no later than the tenth of the month so that the payment could be mailed in a timely manner. The chancellor ordered Cathy, acting pro se, to draft an order based upon his findings at the hearing. An order was drafted, but the

chancellor refused to sign it, stating that it did not correctly reflect his ruling from the April hearing.

In May 2000, Alfred filed a motion for contempt against Cathy, alleging that she had failed to pay her one-half of the mortgage on the marital home and that the property was now in foreclosure. A hearing on Alfred's motion was held on June 20, 2000. At that hearing, Alfred testified that he had received a letter from the mortgage company informing him that the house was in foreclosure. He said that Cathy had not been paying the mortgage, including the money he gave her for his part of the mortgage. Cathy testified that she had contacted the mortgage company, but because her name was not on the mortgage she could not get any information. Cathy testified that Alfred had given her two payments, but when she talked to the mortgage company she was told not to send any money because the house was in foreclosure. She told the chancellor that she did have the money Alfred had given her and would give it back to him. Cathy testified that she thought the monthly mortgage was $513, if she was not mistaken. She said that she had $1,026 that she was prepared to pay toward her share of the mortgage, not including the money that Alfred had given her. At the close of the hearing, the chancellor refused to hold Cathy in contempt for failure to make the mortgage payments, finding that both parties had contributed to the nonpayment of the mortgage. He also ordered Cathy to give Alfred the money he had given her that she had not applied toward the mortgage, and he ordered Alfred to make whatever arrangements necessary to reinstate the mortgage and get the house out of foreclosure. He directed that when the mortgage was reinstated, Cathy was to give Alfred $1,500 toward the mortgage. The chancellor instructed Alfred, acting pro se, to draft an order; however, an order was never presented to the chancellor.

On August 17, 2000, Cathy filed another motion for contempt, alleging, among other things, that Alfred had failed to pay one-half of the $534 monthly mortgage payments, thus causing the house to be foreclosed and sold to a third party. A hearing on this motion was held on September 6, 2000. At that hearing, Cathy testified that she had attempted to speak to someone about the foreclosure after the previous hearing, but that she could not get any information because her name was not on the mortgage. She said that the house was foreclosed and sold to a third party on August 1, 2000. When the new owner learned that Cathy was still living in the house, he agreed to let her repurchase the house. Cathy testified that although she could not buy the house, her mother was going to buy the house and allow her to live in it. Cathy also testified that she had two payments from Alfred that totaled $534 that she had not applied toward the mortgage.1

At the close of the third hearing, the chancellor stated that he was going to have to review the testimony from the previous hearings. He also stated from the bench that he had ordered that Alfred pay one-half of the mortgage payment as spousal support so that the debt could not be erased in bankruptcy and so that Cathy had recourse against Alfred if the obligation was not paid. The chancellor further stated:

Well, at this point, all I'm going to say is that spousal support will continue, whether he's making the mortgage payment or not. And since the house is not there for a mortgage payment, the Court is still going to expect Mr. Loring to pay spousal support at this point in time, so that will be something for the defendant to consider as to whether or not he wishes to pay that or not, but I would suggest strongly that he do so.

In his order, filed April 12, 2001, the chancellor made no mention of the $534 that Cathy admitted at the third hearing that Alfred had given her but that she had not applied toward the mortgage. In his order, the chancellor directed, among other things, that Alfred was responsible for any and all costs associated with the foreclosure. Alfred now appeals, arguing that the chancellor abused his discretion by failing to incorporate all of his findings into the final order and by granting judgment against him for foreclosure costs.

The appellate courts review chancery cases de novo and will not reverse a finding of fact by the chancery court unless it is clearly erroneous. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. O'Fallon v. O'Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000). Alfred's first argument is that the "chancellor abused his discretion when he failed to incorporate all of his findings into the final order." Alfred states that the chancellor failed to include in his April 12, 2001, order the ruling from the second hearing that Cathy was to refund the $513 that Alfred had given her but that Cathy had not applied toward the mortgage. Alfred also argues that the chancellor failed to include that Cathy was to pay her portion of the mortgage payments that were outstanding at the time of foreclosure. Hecontends that he is entitled to a credit of $1,602 against the foreclosure costs for Cathy's one-half of the mortgage payments from March to August 2000 and a credit of $513 against foreclosure costs for payments made to Cathy that were not used to pay the mortgage. Otherwise, he contends, he would in effect be required to pay all of the mortgage payments from March to August 2000.

There is no basis for the argument that Alfred is entitled to a credit of $1,602 for Cathy's portion of the mortgage payments that were not made from March to August 2000. The record contains no evidence that Alfred made any mortgage payments after the house went into foreclosure, and there was no evidence presented to the chancellor that there was a deficiency judgment for which Alfred was held responsible when the house was sold. Alfred has failed to show that he was held responsible for the mortgage payments from March to August 2000.

Likewise, we cannot say that the chancellor erred in not including in his April 12, 2001, order a directive that Cathy was to pay Alfred the sum of $513, which represented the amount that Alfred had given Cathy that she admitted had not been applied to the mortgage. Although the chancellor did order from the bench at the second hearing that Cathy give that money back to Alfred, we are unable to tell from the record before us why this was omitted from the April 12 order. It is possible that the money has been repaid; any reason we could derive would be mere speculation. However, if the omission was truly an oversight on the part of the chancellor, that issue should have been brought to the attention of the chancellor instead of being raised for the first time on appeal.

Alfred's last argument is that the chancellor erred in granting judgment against him for foreclosure costs. In his April 12, 2001 order, the chancellor found, "Mr. Loring was also previously ordered to pay any and all costs associated with the foreclosure on the parties' marital residence and that order of the Court will also stand." There was no error on the part of the chancellor with respect to this issue. The third paragraph of section eight of the parties' divorce decree states, "If there is a foreclosure on the mortgage of the marital home, the defendant [Alfred] shall be responsible for any and all costs associated with the foreclosure, including attorney fees." Although we are unable to ascertain from the record if there were costs associated with the foreclosure, if any costs were incurred, such expenses are Alfred's responsibility.

Affirmed.

Jennings and Griffen, JJ., agree.

1 Although Cathy testified at the second hearing that the mortgage payment was $513, the testimony at the third hearing indicated that the payment was $534. However, in his argument, Alfred uses the amount of $513.