Janice K. Fredericks v. Thomas W. Fredericks

DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

CA02-891

April 23, 2003

JANICE K. FREDERICKS AN APPEAL FROM BENTON COUNTY

APPELLANT CIRCUIT COURT

[D-93-1321-4]

v.

HONORABLE XOLLIE DUNCAN,

THOMAS W. FREDERICKS CIRCUIT JUDGE

APPELLEE

AFFIRMED

This is an appeal from the trial court's denial of appellant Janice Fredericks's post-divorce motion to set aside a 1995 decree under Ark. R. Civ. P 60(c). We affirm.

Appellant filed her petition seeking to set aside the 1995 decree on January 7, 1999, alleging that appellee committed fraud concerning the waiver she signed and that appellee did not present grounds for divorce. Appellant amended her petition to include as further fraud that appellee promised her lifetime support, and to also seek alimony. Appellee Thomas Fredericks answered, denying that fraud was practiced in obtaining the divorce or that appellant was entitled to relief.

The parties were married in 1967 and raised two children. Appellant testified that it was appellee's idea to separate and divorce. The parties consulted attorney Kim Lashlee, the attorney for their business, concerning the divorce in April 1992. Appellant testified that Lashlee made it clear that he would represent only appellee in the divorce, and appellant admitted that she signed a letter acknowledging that fact. She admitted that Lashlee advised her to seek legal counsel but that she did not do so. She also testified that the parties lived together as husband and wife from January 1993 through July 1993.

The complaint for divorce was filed on July 28, 1993, seeking a divorce on the grounds of general indignities and a division of marital property. Appellant signed a "Waiver and Entry of Appearance" (waiver) in which she waived service of process, entered her appearance, and waived notice of further proceedings. The waiver was signed on July 23, 1993, and filed on July 28, 1993, with the complaint. Appellant testified that Lashlee sent her a letter dated September 8, 1993, containing the complaint and waiver. Appellant testified that the parties "got back together" after she received this letter. Appellant testified that Lashlee sent her another letter dated September 12, 1994, containing the complaint, a property settlement agreement, and a second waiver. Appellant did not sign this second waiver. Appellant testified that she and appellee spent the last weekend in September 1994 together, with appellant thinking that this was a reconciliation and the divorce would not proceed. Appellant admitted that she never told anyone that she wanted to withdraw her entry of appearance.

Appellant was served with a summons and complaint on December 8, 1994. She testified that she read the summons but did not understand that she had to take further action. She testified that she did not appear or file a pleading. The divorce decree was entered on January 20, 1995. The decree granted appellee a divorce and approved and incorporated a property settlement agreement dated April 15, 1994.

Appellee testified that it was hard for him to remember the events from 1992 to 1994. He testified that he did not recall having a conversation with appellant about the secondwaiver. Appellee testified that he did not recall testifying as to grounds for divorce in the original proceedings. He also did not recall telling the trial court about the waiver. Appellee further also testified that, prior to the April 15, 1994, execution of the agreement, he twice moved out of the marital home. He testified that he did not attempt to reconcile after April 1994.

Attorney Kim Lashlee testified by deposition that he had an on-going attorney-client relationship with the parties from 1981 until 1998. This included legal work for Fredericks Construction Company, tax and estate planning, and legal work for the children. He testified that he was concerned that appellant should have legal counsel and that he urged her to seek counsel. He testified that he prepared the complaint for divorce and waiver for appellant to sign. He stated that appellant signed the waiver in his office on July 23, 1993, five days prior to the complaint being filed. He stated that he talked with appellant regularly because she still worked for the construction company. Lashlee testified that he sent the September 1994 letter to appellant to remind her that the divorce was still proceeding. He also testified that he had appellant served with the summons and complaint after a conversation with Judge Oliver Adams. He testified that appellant never informed him that she wanted to withdraw the entry of appearance, that she objected to the divorce being finalized, or that she did not agree to the terms of the property settlement agreement. He stated that appellant never discussed alimony or spousal support with him. Lashlee testified that the parties never told him that they attempted to reconcile or that they had marital relations. He also testified that he did not recall appellee testifying as to grounds or how the questions were asked.

After a hearing, the trial court found that the first waiver gave the trial court jurisdiction in the original divorce proceeding. The trial court also found that the request for a second waiver did not invalidate the original waiver because it was in the nature of a request that appellant take some action if she wanted to contest the divorce. Further, the court found that condonation was an affirmative defense which was not raised at trial and could not be raised now, that it was too late to seek alimony, and that there was no fraud. It thereafter denied the petition to set aside the decree. This appeal followed.

Appellant raises four points: (1) that the trial court erred in not setting aside the decree because the second request for a waiver invalidated the first waiver and therefore the trial court lacked personal jurisdiction; (2) that the trial court erred in not setting aside the decree because appellee committed fraud by not testifying as to grounds for divorce and by not informing the original trial court of the parties' attempted reconciliation; (3) that the trial court erred in not setting aside the decree because appellant was not served with process within 120 days after the complaint was filed; and (4) the trial court abused its discretion in not awarding alimony where the original decree was silent on alimony.

This court reviews equity cases de novo but does not reverse the trial judge's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Oliver v. Oliver, 70 Ark. App. 403, 19 S.W.3d 630 (2000). This court will defer to the trial court's superior position to evaluate and judge the credibility of the witnesses. Hamilton v. Burnett, 337 Ark. 460, 989 S.W.2d 520 (1999). Further, appellant had the burden of showing fraud by clear, cogent and convincing evidence. Ward v. McCord, 61 Ark. App. 271, 966 S.W.2d 925 (1998).

We discuss appellant's first and third points together because they both deal with the validity of the waiver of service signed by appellant. Appellant argues that the decree of divorce was void because the waiver she signed was invalid and, citing Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001), that the divorce action should have been dismissed because she was not served with process within 120 days of the filing of the complaint. In the first part of her argument, appellant argues that, because appellee's attorney requested that she sign a second waiver, the original waiver was invalid. However, appellant does not explain how the request for a second waiver invalidated the first waiver or cite any authority for that proposition. Assignments of error unsupported by convincing argument or apposite authority will not be considered on appeal. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). Raymond, supra, does not have any application to the present case because appellant entered her appearance in the case contemporaneously with the filing of the original complaint. "A general or voluntary appearance is equivalent to service of process, and confers jurisdiction of the person on the court. Hence a defendant is estopped to object to want of such jurisdiction where he has appeared generally...." Foohs v. Bilby, 95 Ark. 302, 307, 129 S.W. 1104, 1106 (1910). Ordinarily, any defect in the process, the return thereon, or the service thereof is cured or waived by the appearance of the defendant without raising an objection, and he is precluded from thereafter taking advantage of the defect. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Mercer v. Motor Wheel Corp., 178 Ark. 383, 10 S.W.2d 852 (1928); Burrell v. Arkansas Dep't of Human Servs., 41 Ark. App. 140, 850 S.W.2d 8 (1993). A defendant may sign and permit the filing of aninstrument entering his appearance in a suit about to be filed. Kirk v. Bonner, 186 Ark. 1063, 57 S.W.2d 802 (1933). See also Ark. R. Civ. P. 4(d)(8)(B).

For her second point, appellant argues that the trial court erred in not setting aside the decree because appellee committed fraud by not specifying the conduct that amounted to "general indignities" and in not advising the trial court of condonation and an inaccurate date of separation. Appellant argues that appellee failed to prove his grounds for divorce. Appellee testified that he did not recall testifying to his grounds for divorce at the original divorce trial. He stated that he answered a couple of questions with "yes" or "no" answers. The trial court found that appellant failed to prove that appellee committed fraud with respect to the grounds for divorce. We agree with the trial court.

First, the decree states appellee's allegations are "sustained by proof." Where a decree recites that evidence was heard but that evidence is not preserved in the record, there is a conclusive presumption that the omitted evidence supports the trial court's finding on this issue. See, e.g., Phillips v. Arkansas Real Estate Comm'n, 244 Ark. 577, 426 S.W.2d 412 (1968); Wagh v. Wagh, 7 Ark. App. 122, 644 S.W.2d 630 (1983). We do not believe that the testimony presented was sufficient to overcome this presumption. Second,

Condonation is a conditional rather than an absolute defense. Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954). Cohabitation after marital misconduct is evidence of condonation but standing alone is not conclusive. Elerson v. Elerson, 6 Ark. App. 255, 640 S.W.2d 460 (1982). "[M]arital relations between litigants does not create a jurisdictional deficit, but merely creates an affirmative defense in the hands of either party which must be raised." Ford v. Ford, 270 Ark. 349, 605 S.W.2d 756 (Ct. App. 1980) (emphasis in original). Appellant neither pled the affirmative defense, nor raised it before the trial court.

Hodges v. Hodges, 27 Ark. App. 250, 255, 770 S.W.2d 164, 167 (1989). We find no error on this point.

For her fourth point, appellant argues that the trial court erred in not awarding her alimony because the original decree did not make reference to alimony. A trial court's decision whether to award alimony is a matter that lies within the trial court's sound discretion and will not be reversed on appeal absent an abuse of that discretion. Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002). In Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988), the supreme court stated:

[I]f either spouse is entitled to alimony, the trial court must comply with [Arkansas Code Annotated § 9-12-312 (2002)] by making that decision when the decree is entered. If circumstances prevent the spouse who is to pay the alimony from being able to do so, then the court may recite that fact and decline to award a specific amount. Thereafter, if circumstances change in a way that will permit the payment of alimony, the party who has been entitled to it may petition the court.

Id. at 100, 747 S.W.2d at 80. An exception to the doctrine of res judicata that ordinarily applies exists where the original divorce court lacks jurisdiction to grant alimony, such as lack of personal jurisdiction over one spouse, and an independent action for alimony will lie after entry of the decree. Woods v. Woods, 285 Ark. 175, 686 S.W.2d 387 (1985). See also Miller v. Miller, 209 Ark. 505, 190 S.W.2d 991 (1945). Here, appellant did not file a pleading requesting alimony in the original divorce proceeding. The purpose of pleadings is to notify the court and other parties of the issues to be tried. Urban Renewal Agency v. Hefley, 237 Ark. 39, 371 S.W.2d 141 (1963). In the absence of such a request, it was not error to not award alimony. Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439 (1950); Hodge v. Briggs, 7 Ark. App. 16, 643 S.W.2d 576 (1982). Under these circumstances, thetrial court did not err in "failing to address the equities involved" in the original divorce proceedings. Means v. Means, 58 Ark. App. 42, 49, 946 S.W.2d 188, 191 (1997).

Affirmed.

Pittman and Neal, JJ., agree.