Gina (Cook) Duke v. Mitchell Cook

Annotate this Case









MARCH 16, 2005


[NO. DR-00-264]



Karen R. Baker, Judge

Appellant, Gina Cook Duke, appeals from an order by the White County Circuit Court awarding appellee, Mitchell Cook, a judgment in the amount of $4656.55 for taxes owed on Searcy Home Center. Appellant has three arguments on appeal. First, she argues that the evidence was insufficient to deny relief she sought in her petition and substituted and amended petition for a contempt citation regarding four mobile homes. Second, appellant argues that the evidence was insufficient to award appellee the sum of $4656.55 for taxes paid by appellee to the Arkansas Department of Finance and Administration on appellant's behalf at ten percent per annum. Third, appellant argues that appellee breached the property settlement agreement made between the parties. We affirm.

The parties in this case were divorced on February 15, 2002. The evidence suggests that the parties entered into a property-settlement agreement that was apparently incorporated into the divorce decree. On September 9, 2003, appellant filed a petition for contempt against appellee, alleging that he owed $7456.15 in past-due tax bills. On September 24, 2003, appellee filed a response to the contempt petition and a counter-petition for contempt against appellant. In the counter-petition for contempt, appellee alleged that appellant owed him both $6685.81 and

$4007.11 for reimbursement of monies paid on debts associated with Searcy Home Center and White County Mobile Home Sales, together with any associated debt that appellant allegedly acquired in the property-settlement agreement. Appellant filed a response to the counter-petition on October 2, 2003. On November 21, 2003, appellant filed a substituted and amended petition for contempt alleging that appellee owed $7456.15 in past-due tax liabilities, that appellee had sold four homes belonging to Searcy Home Center, and that he owed her $32,000 for the homes.

On January 14, 2004, a hearing was held on the motions for contempt of both parties. With regard to the tax liabilities that appellant claimed appellee owed her in her original contempt petition, the trial judge found that each party was responsible for the real and personal property taxes on the property they acquired as a result of the property-settlement agreement. The trial judge also found that the four homes that appellee allegedly sold were not mentioned in the divorce decree or the property-settlement agreement. Thus appellant's contempt petition was denied. Appellee's claim that appellant owed him $4007.11 for payment made on appellant's indebtedness was denied by the trial judge because appellee failed to provide any documentation to support his claim. Further, the trial court found that the money appellee paid to the Arkansas Department of Finance and Administration was a debt of Searcy Home Center, which was appellant's responsibility according to the property-settlement agreement; thus, appellant owed appellee half of that amount. As a result, appellee was awarded a judgment for $4656.55. This appeal followed.

In reviewing domestic-relations cases, we consider the evidence de novo, but will not reverse a trial court's findings unless they are clearly erroneous or clearly against the preponderance of evidence. Hass v. Hass, 80 Ark. App. 408, 97 S.W.3d 424 (2003). The record on appeal is limited to that which is abstracted, and it is the appellant's burden to produce a record sufficient to demonstrate error. McAdams v. Auto. Rentals, Inc., 324 Ark. 332, 921 S.W.2d 592 (1996); Burgess v. Burgess, 286 Ark. 497, 696 S.W.2d 312 (1995). We are unable to reach the merits of this case due to the insufficiency of both the record and appellant's abstract.

Pursuant to Arkansas Supreme Court and Court of Appeals Rule 4-2(a)(5) (2004), "appellant's abstract or abridgment of the transcript should consist of an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision." See Davis v. Peebles, 313 Ark. 654, 857 S.W.2d 825 (1993) (decision under prior rule). To be able to determine the rights and duties under a contract or property settlement agreement, and determine whether the trial judge's decision in interpreting such an agreement was correct, we must be able to examine the whole context of the agreement, considering the instrument in its entirety. Continental Cas. Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971); Hartford Ins. Co. v. Brewer, 54 Ark. App. 1, 922 S.W.2d 360 (1996); see also Mills v. Holland, 307 Ark. 418, 820 S.W.2d 63 (1991).

In this case, appellant failed to include the property-settlement agreement in either the abstract or the record. The property settlement is the key document necessary to our review of the issues on appeal. Because we do not have the property settlement agreement before us, we cannot determine whether the trial court erred. See Johnson v. Simes, ___ Ark. ___, ___ S.W.3d ___ (Feb. 24, 2005) (affirming the circuit court's order where Johnson failed to include two motions in the record that were imperative to the court's review, thus, failing to bring before the court a record exhibiting circuit court error). Therefore, we affirm.


Bird and Crabtree, JJ., agree.