Malian E. Fletcher v. Patricia E. Fletcher

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

MALIAN E. FLETCHER

APPELLANT

V.

PATRICIA E. FLETCHER

APPELLEE

CA 03-444

December 10, 2003

APPEAL FROM THE SALINE

COUNTY CIRCUIT COURT

[DR01-1139-1]

HONORABLE ROBERT W.

GARRETT, CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

Appellant, Malian Fletcher, and appellee, Patricia Fletcher, were divorced by a decree entered on August 14, 2002. Appellant appeals from a February 12, 2003, post-divorce order, which found that he was to pay appellee $140,561.80 as her portion of his IRA account. We affirm.

The standard of review in equity cases is de novo. Tyson Foods, Inc. v. Conagra, Inc., 349 Ark. 469, 79 S.W.3d 326 (2002). The appellate court reviews both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sifts the evidence to determine what the finding of the trial court should have been and renders a decree upon the record made in the trial court. Id. The trial court's findings of fact will not be reversed unless they are clearly erroneous. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Gray v. Gray, 352 Ark. 443, 101 S.W.3d 816 (2003). We do not, however, defer to a trial court's conclusion on a question of law. Oliver v. Oliver, 70 Ark. App. 403, 19 S.W.3d 630 (2000). If the trial court erroneously applied the law and the appellant suffered prejudice as a result, we will reverse the trial court's erroneous ruling on the legal issue. Id.

The facts of this case are essentially undisputed. The property-settlement agreement between the parties was read into the record of their divorce proceedings on May 15, 2002. It provided that appellant's IRA account was to be divided with seventy percent going to appellant and thirty percent going to appellee. The total value of the account on that date was $468,539.34. Thirty percent of that amount was specified as $140,561.80 in the agreement. The agreement as drafted also contained a contested provision regarding whether the payments that appellee had received during the separation would be treated as alimony, and appellee refused to sign the agreement without it specifying that the payments would not be treated as alimony. A hearing was set for August 14, 2002, to resolve that issue. At the conclusion of the hearing, the trial court determined that the "non-alimony" provisions of the agreement should be deleted. Although appellant was not physically present at this August hearing, his attorney was present, and the property-settlement agreement was executed at that time, with appellant's counsel signing for appellant. The divorce decree was also entered on that date.

The only portion of the agreement that was in dispute prior to the August hearing concerned the treatment of the "alimony" payments. Appellant remained in full control of the IRA account during the period between May 15 and August 14, 2002, and the account dropped in value from approximately $468,539.34 to $406,906.69. During that period, appellant withdrew approximately $18,332.17, but the remaining reduction in value was the result of a sharp drop in the stock market.

A dispute subsequently arose concerning the amount of money that was owed to appellee with respect to the IRA account because of its loss in value between May and August 2002. Appellant contended that appellee's thirty percent share of the account should be determined using the lower number, and appellee contended that the higher number should be used. Appellant filed a petition for distribution of funds to resolve the issue, and a hearing was held on January 24, 2003. On February 12, 2003, the trial court entered its order, finding that appellee should receive the $140,561.80 amount that was specified in the agreement, which represented thirty percent of the value of the account as of May 15, 2002. It is from this order that appellant brings this appeal.

For his first point of appeal, appellant contends that the "trial court erred in finding that the appellant should pay to the appellee thirty percent of his retirement account as of May 15, 2002, rather than August 14, 2002 because the agreement of the parties was for a seventy/thirty percent distribution." He argues that the parties intended that appellee receive thirty percent of the value of the account at the time of division and that the provision in the agreement establishing the exact sum of $140,561.80 was merely the calculation that had been made as of May 15, 2002. We find no error.

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, 771 S.W.2d 791 (1989). It has long been established that the first rule of interpretation is to give to the language employed by the parties to a contract the meaning they intended. Id. When contracting parties express their intention in a written instrument in clear and unambiguous language, it is our duty to construe the written agreement according to the plain meaning of the language employed. Coble v. Sexton, 71 Ark. App. 122, 27 S.W.3d 759 (2000). However, where the meaning of a written contract is ambiguous, parol evidence is admissible to explain the writing. Id.

Here, the settlement agreement between the parties provided in pertinent part:

(f) Husband agrees to pay to Wife the sum of $140,561.80, said sum to be rolled over into the IRA account of the Wife, said sum representing her agreed upon interest, namely thirty percent (30%) of the total IRA of Husband, in accordance with Arkansas law and by agreement and settlement and compromise between the parties hereto.

The settlement agreement was signed on August 14, 2002, after the market value had dropped and after a hearing in which, presumably, the effect of the market drop could have been addressed by the parties. The agreement clearly specifies the exact amount that appellee was to receive, and we find no error in the trial court's interpretation of the parties' agreement.

Appellant's second and third points of appeal can best be addressed together. Under points II and III, appellant contends that the trial court erred (1) because appellee caused the delay in obtaining a divorce decree and distribution of retirement funds, and (2) because appellee should not be rewarded for her own wrongdoing. He argues that there would not have been a problem with the drop in market value if appellee had not refused to sign the property agreement on May 15, 2002; that her refusal to sign was wrongful; and that she should not be allowed to benefit from her wrongdoing. We find no error.

Appellant cites cases for the proposition that "a party has an implied obligation not to do anything that would prevent, hinder, or delay performance." The problem with his argument, however, is that appellee was not doing anything improper in the first place by refusing to sign the agreement because of her disagreement with the treatment of support money as alimony under the terms of the agreement.

For his fourth point of appeal, appellant contends that the agreement in question was prepared by appellee's counsel; that the provision at issue here is ambiguous; and that ambiguities must be strictly construed against the drafter. Appellee counters this argument by noting that appellant did not make it below. We agree. Appellant replies that he "made the argument of potential ambiguity in his Brief in the event the Court had difficulty in determining whether or not the agreement between the parties was that Appellee was to receive thirty percent(30%) of the retirement account or whether Appellee was to receive $140,561.80." We find no evidence of appellant making that argument to the trial court. Accordingly, if the ambiguity argument was not made to the trial court, it cannot be made on appeal. Our supreme court has clearly held that arguments, even constitutional arguments, are improperly raised for the first time on appeal. Utley v. City of Dover, 352 Ark. 212, 101 S.W.3d 191 (2003).

Moreover, the language, on the face of the agreement, is not ambiguous. Again, the pertinent portion of the settlement agreement provides:

(f) Husband agrees to pay to Wife the sum of $140,561.80, said sum to be rolled over into the IRA account of the Wife, said sum representing her agreed upon interest, namely thirty percent (30%) of the total IRA of Husband, in accordance with Arkansas law and by agreement and settlement and compromise between the parties hereto.

The only way that the language could possibly be considered ambiguous is if it is determined to be a latent ambiguity, which would have had to be brought to the trial court's attention by reference to the August 15, 2002 decreased value of the account. It was not.

For his final point, appellant contends that the "trial court erred because equity and justice control the case." He argues that the court is not bound by a property-settlement agreement entered into by the parties, i.e., that it is within the trial court's sound discretion to approve, disapprove, or modify the agreement. While this statement of the law is correct, it is not helpful to appellant. Again, this precise argument was not made to the trial court at the January hearing. Moreover, there was no dispute about subsection (f) of the agreement when the parties appeared before the trial court in August, and the market had already dropped.

Affirmed.

Gladwin and Baker, JJ., agree.