James D. Johnson v. Janey R. Johnson

Annotate this Case
ca03-359

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

JAMES D. JOHNSON

APPELLANT

v.

JANEY R. JOHNSON

APPELLEE

CA03-359

MAY 19, 2004

APPEAL FROM BENTON COUNTY CIRCUIT COURT

[NO. E2001-1298-5]

HONORABLE JOHN R. SCOTT, CIRCUIT JUDGE

REVERSED AND REMANDED

Andree Layton Roaf, Judge

Appellant James Johnson appeals from the denial of his request for one-half of the reasonable rental value of the parties' four-acre marital-residence property for the duration of his life estate in the property. Appellee Janey Johnson holds the remainder interest in fee simple in the marital-residence property. The life estate, which had previously been conveyed to both James and Janey by Janey's grandmother prior to their divorce, was awarded equally to both parties as tenants in common pursuant to the trial court's division of property upon their divorce. However, James was denied possession of the property after the divorce by an order of protection and a subsequent restraining order. On appeal, James argues that the trial court erred in denying his motion for one-half of the reasonable rental value of the property. We reverse and remand.

The parties to this appeal were divorced in March 2002 in Benton County. Pursuant to the divorce decree, the trial court divided the parties' real property as follows: The court finds that the residence and four acre parcel of real property is the sole and exclusive property of the plaintiff [Janey Johnson] and that the two acres adjacent to the house, the life estate in the four acre parcel [marital residence property], the Lowell house contract, the 40 acres in Benton County, Arkansas, the Springdale residential rental on Thelma Street, and the Springdale commercial rental property at 210 N. Thompson are marital property and are to be divided by the parties equally. If the parties are unable to agree as to an equal division of these real estate interests and any debt associated with each interest, the clerk of this court shall be appointed commissioner and shall sell the property within 45 days of a written request for such a sale. If, however, the parties are in agreement, they shall remain as tenants in common as to these six property interests. (Emphasis added.)

The decree further divided the parties' personal property and provided that if the parties could not agree on an equal division of those items not specifically awarded to either party, then those items would be sold in the same manner as the real property. The trial court also indicated that it was dividing the personal property unequally and stated its reasons for the unequal division.

In June 2002, Janey filed a motion to sell both the personal and real marital property, stating that the parties had been unable to agree upon the division of the assets. James filed a response objecting to the sale and also filed a counterclaim, in which, in addition to other matters, he requested that the trial court order Janey to pay him one-half of the reasonable rental value of the marital residence property from the date of separation until such time as the life estate terminates. James alleged in this motion that both parties were equally awarded the life estate in this property pursuant to the trial court's division of property in the divorce decree, that each party thus had equal access to the property until termination of the life-estate interest, and that Janey had continually resided on the property since the date of separation. Janey filed a response denying the allegations and stating that the trial court had "awarded" her sole and exclusive possession of the residence property subject to the life estate.

In September 2002, a hearing was held on Janey's motion to sell the marital property and on James's counterclaim. Janey's motion to sell the property was granted, and she also requested at the hearing that the trial court extend a domestic order of protection that was previously entered to keep James off of the marital-residence property. The trial court declined to extend the order of protection, but ordered that both parties were restrained from having any contact with each other. The court then questioned James on whether he understood that he was not supposed to be on the residence property where Janey lived, and James replied that he did. Although James indicated at the hearing that he had no objection to a restraining order excluding him from the residence property, he argued that he was entitled to his request for one-half of the reasonable rental value of that property, which is free of debt, as he was getting no use or enjoyment from his life estate due to his exclusion from the property. The trial court denied James's request, stating that it was the court's intention in dividing the parties' property that the four-acre residence property "subject to the life estate" be the separate property of Janey to the "complete and total exclusion" of James. An order to this effect was entered on December 4, 2002, and James timely appealed from this order.

James argues that the trial court erred in denying his motion for one-half of the reasonable rental value during the life estate that was awarded equally to both parties in the divorce. While domestic cases are reviewed de novo on appeal, the trial court's findings of fact will not be reversed unless they are clearly erroneous. McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Clifton v. Clifton, 34 Ark. App. 280, 810 S.W.2d 51 (1991). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Killough v. Killough, 72 Ark. App. 62, 32 S.W.3d 57 (2000).

James contends, as he did to the trial court, that he was awarded an equal interest in the life estate in the marital-residence property pursuant to the divorce decree. James asserts that Janey's grandmother is still alive and that the life estate is therefore still in effect, even though Janey holds the remainder interest in fee simple. Because Janey has had exclusive possession of the property, rent-free, since the divorce and because he has been excluded from the property due to the order of protection and the restraining order, James asserts the trial court's decision denying him one-half of the rental value "completely ignores his property interest in the life estate" and in effect, begins Janey's fee simple remainder interest in the property immediately.

A life tenant is entitled to possession of the premises to which the estate pertains. Head v. Farnum, 244 Ark. 367, 425 S.W.2d 303 (1968). Also, one of the characteristics of a tenancy in common is that each tenant has the right to occupy the premises, and thus, neither tenant can lawfully exclude the other. Clifton, supra. Because occupation of land by one tenant in common is deemed to be possession by all cotenants, for possession of one tenant to be adverse to that of the other cotenants, the knowledge of the adverse claim must be brought home to them directly or by such acts that notice may be presumed. Graham v. Inlow, 302 Ark. 414, 790 S.W.2d 428 (1990). A tenant in possession who does not exclude his cotenants is not liable for rent. Graham, supra; Lawrence v. Lawrence, 231 Ark. 324, 329 S.W.2d 416 (1959); Clifton, supra.

In this case, the evidence shows that Janey has excluded James, her cotenant in the life estate in the residence property, from possession of the property. She has been in sole possession of the residence and four-acre parcel since the divorce and was initially granted an order of protection against James. When James requested that he be paid one-half of the rental value of the property, Janey responded by arguing that the trial court had awarded her sole and exclusive possession of the property. Although Janey's request for an extension of the order of protection was denied by the trial court, the court did enter a restraining order, again preventing James from entering or taking possession of the property. Thus, because James was excluded from the property, he is entitled to one-half of the rental value. See Graham, supra; Lawrence, supra; Clifton, supra.

In denying James's request for the rental value, the trial court stated, incongruously, that it had intended that Janey be awarded the residence property subject to the life estate as her separate property, "to the complete and total exclusion" of James. While the trial court may have intended this result, the divorce decree also specifically stated that the life estate was marital property and that it should be divided equally between the parties, with the parties being tenants in common as to this property interest. As James argues, the trial court's ruling essentially ignored any life-estate interest in the marital-residence property awarded in the decree and only gave effect to the language in the decree that found the fee-simple interest in the property to be Janey's separate property. We note that the trial court could have made an unequal division of marital property upon the divorce, including the parties' life estate, and that the court could also have entered an order awarding Janey exclusive possession; however, it did not do so in the decree. By awarding James an equal interest in the life estate as a tenant in common with Janey, the divorce decree also gives James an equal right to possession of the premises, or the explicit right to compel a commissioner's sale of the entire life estate. The trial court's statement at the September 2002 hearing that he intended the property subject to the life estate to be the separate property of Janey does not clarify or address the inherent conflict in the decree or in his ruling. The trial court's finding that Janey is entitled to exclusive possession of the property, without paying rent to James, is in direct conflict with its award of the life estate equally to both parties in the decree. Because he has been excluded from the use, benefit, or possession of this property, James is entitled to his request for one-half of the reasonable rental value of the property, and the trial court's decision to the contrary is clearly erroneous. We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

Gladwin and Bird, JJ., agree.