Ronald E. Grover v. Valarie K. Grover
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
WENDELL L. GRIFFEN, JUDGE
DIVISION IV
CA06-118
September 27, 2006
RONALD E. GROVER
APPELLANT
AN APPEAL FROM JOHNSON
COUNTY CIRCUIT COURT
[DR2004-9]
V.
HON. DENNIS C. SUTTERFIELD, JUDGE
VALARIE K. GROVER
APPELLEE
REVERSED AND REMANDED WITH
INSTRUCTIONS IN PART;
AFFIRMED IN PART
Appellant Ronald Grover and appellee Valarie Grover1 were divorced by decree of
the Johnson County Circuit Court on August 10, 2005. Appellant appeals from portions of
the decree. He argues that the circuit court erred in invalidating a previous reconciliation
agreement between the parties. He also argues that the circuit court erred in awarding
custody of the parties’ minor son to appellee in light of testimony that the child wished to live
with appellant. Because the circuit court misapplied the law when it set aside the parties’
reconciliation agreement, we reverse that portion of the decree and remand this case for entry
of an order consistent with this opinion. We affirm the circuit court’s custody determination.
Factual and Procedural History
The parties were married on December 26, 1990. Two children were born of the
marriage: Kyle (born October 12, 1989), and Madison (born September 7, 1996). Appellant
1
Some documents refer to appellee as “Valarie Grover,” while others refer to her as
“Valerie Grover.” Both the complaint for divorce (filed by appellee) and appellee’s brief
refers to her as “Valarie Grover.” Accordingly, we refer to appellee as “Valarie Grover.”
is also the father of a third child, Jessica (born February 6, 1987). According to testimony
at trial, the parties met while appellant was stationed at Little Rock Air Force Base in
December 1987 or January 1988. Appellant was later transferred to Germany, and appellee
followed in May 1989 while pregnant with Kyle. The parties later moved to Florida and
were married. The parties separated in July 1993, and appellant filed for divorce. However,
the parties decided not to pursue the divorce. On March 28, 1994, they signed the following
agreement:
WHEREAS, the parties, [Appellant and appellee], have reconciled their marital
differences and no longer desire to proceed with the dissolution of marriage action.
1.
2.
3.
4.
NOW, THEREFORE, it is agreed and stipulated as follows:
[Appellee] hereby waives any right, title or interest she may have to
[appellant’s] military retirement, now or in the future.2
[Appellee] hereby agrees to quit-claim her interest in the parties’ marital home
. . . to [appellant].
[Appellant] hereby agrees to hold [appellee] harmless for any and all debts and
liabilities associated with the marital home.
This Agreement constitutes the entire agreement between [appellee and
appellant] and supersedes any prior understandings or written or oral
agreements or representations between the parties respecting the within subject
matter. It shall not be amended, altered, or changed except by a written
agreement signed by the parties hereto.
Appellee testified that she moved back to Arkansas when appellant filed for the first
divorce.
During that time, she had custody of Kyle, while Jessica moved to her
grandmother’s residence in St. Petersburg, Florida. She stated that when she returned to
Florida, she and appellant went to appellant’s attorney’s office, where she signed the
agreement. She testified that appellant conditioned the reconciliation upon her signing the
agreement and that had she not signed the agreement, she would have been forced to return
to Arkansas. Appellee also testified that she agreed to sign the reconciliation agreement only
after appellant agreed to get counseling and move back to Arkansas. She stated that her
2
The emphasized portion was handwritten and initialed by appellee.
2
attorney never saw the agreement and that appellant did not give her a list of his assets or tell
her the approximate value of his military retirement. The parties moved from Fort Walton
Beach, Florida, in 1997, and appellee reminded appellant about his agreement to move to
Arkansas and to participate in counseling. Appellee testified that appellant might have
attended a couple of counseling sessions with Kyle, but that he otherwise did not attend any
counseling. After the reconciliation, Jessica returned to live with the parties.
Appellee testified that she attended dental hygiene school in Pensacola, Florida, and
that the family moved to England 3 in 1997 due to a military transfer. She stated that she
could have worked but that she chose not to do so because Madison was young. The family
moved to Travis Air Force Base in California in the summer of 2000 and remained until
November 2000, when appellee’s father was in an accident. Appellee testified that she
returned to Arkansas in January 2002. The military was not allowing anyone to retire at that
time due to the September 11 attacks; therefore, appellant stayed in California while appellee
and the children returned to Arkansas. Appellant retired from the military in October 2002,
but he took a government contract job in the Middle East in December 2002. He returned
to the United States in December 2003. Appellee testified that, when appellant returned, he
went to his mother’s house in Florida and did not contact appellee for four days. She stated
that appellant came back to the parties’ home in Arkansas but left again January 5, 2004,
stating that he was going to get a divorce. She stated that appellant left Arkansas again but
returned the following March to get Jessica.
Regarding custody of Kyle, appellee testified that he would be better off living with
her because he finally had a chance to stabilize. She noted that Kyle had been in Arkansas
since the seventh grade and that he earned good grades, while he had not in the past.
Appellee also thought that Kyle should stay in a small school, which would not happen if he
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The country, not the city in Lonoke County, Arkansas.
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moved to Panama City, Florida, to live with his father. She noted that Kyle had two years
left in school and was a “reserved young man.” Appellee also did not want Kyle separated
from Madison.
Appellant testified that he was in the military from September 1980 to December
2002. He noted that he had been taking classes at Embry Riddle near Panama City, Florida,
since January 2004 and that he takes classes whenever he can afford them. Regarding the
marital home in Florida, appellant testified that he thought his attorney took care of the
paperwork to quitclaim appellee’s interest to him. He did not know whether appellee’s name
was still on the home. He noted that the agreement between the parties asserted that the two
“[had] reconciled their marital differences.” Appellant testified that appellee had not moved
from Arkansas when she signed the agreement. He stated that when appellee would visit,
she would stay in his house, the two would sleep in the same bed, and they would go out
together. He testified that appellant had been in Florida for one day prior to signing the
agreement and that her belongings were still in Arkansas at the time.
Appellant testified that he last had the children during the previous spring break,
Thanksgiving, and summer, and that the visits went well. Appellant stated that he worked
during the day and that when he worked at night, his girlfriend watched the children. While
the children visited him, they would go bowling, go to the beach, carnivals, and the fair.
On cross-examination, appellant testified that Jessica came to live with him after he
came to Arkansas for a court date. He stated that he was in a hotel in Memphis, ready to
leave the next morning, when he received a phone call from appellee, stating, “I don’t care
where you’re at, but you better come back here and pick up your daughter.” He stated that
appellee met him in the middle of the school day with her vehicle full of garbage bags.
Appellant testified that Jessica had been in Florida since then, had graduated from high
school, and was about to move into an apartment with her friends.
4
Regarding the
reconciliation agreement, he stated that the agreement was a safeguard that he and appellee
put together in his attorney’s office. He stated that appellee’s attorney was involved in the
meeting through telephone contact. Appellant testified that appellee had not moved to
Florida at that point and that she had to return to Arkansas to pick up some of her things. He
also stated that there is nothing written in the agreement regarding counseling or moving
away from Fort Walton. Appellant also testified that he wanted custody of Kyle because he
would get a stable household. He stated that Kyle was generally depressed but that Kyle was
happy around him.
Kyle testified that he had recently completed the tenth grade and had been living in
Arkansas since the seventh grade. He said that he wanted to stay with appellant because he
wanted to spend more time with him. He also testified that while he was with appellant over
spring break, appellant worked during the day and went to school at night. When appellant
was away, either appellant’s girlfriend or Jessica would watch him and Madison. Kyle also
said that Madison would stay with appellee and that, while the two fight, he would miss her.
When examined by the court, Kyle acknowledged that he was not far from his high school
graduation and that, if he moved, he would not be able to graduate with the students he knew
in Arkansas. He stated that if he had to remain in Arkansas, he would not want to do
anything and would stay to himself because he would feel bad. He also noted that he would
be both happy and sad if the court awarded custody of him to appellant. He said that he
would be sad because he would not get to see his sister. Kyle told the court that there would
be a downside to either decision made by the court, but the worse situation would be staying
in Arkansas.
In a letter opinion dated June 15, 2005, the circuit court awarded appellee custody of
Kyle. The trial court noted Kyle’s preference to live with appellant; however, it concluded
that the preference was not strongly held. It found that Kyle’s reasons for wanting to be with
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appellant were not convincing reasons for removing him from the physical custody of
appellee, who had been his primary caretaker since his birth. Finally, the court noted that
appellee had provided Kyle with stability and that his education and emotional needs were
being met. Regarding the reconciliation agreement, the court observed that at first glance the
agreement appears to be valid; however, it stated that Florida law allows the court to set aside
such an agreement if it is “patently unfair,” and declared the agreement to be “so unfair as
to be shocking.” It opined that the agreement was executed more in contemplation of divorce
rather than in encouragement of reconciliation and that the agreement was so one-sided as
to make it patently unfair. Accordingly, the court awarded appellee an undivided one-half
interest in the marital home in Florida and one-half of 12/22 interest in appellant’s military
account. The court’s findings were incorporated into an order entered August 10, 2005.
Standard of Review
We review traditional cases of equity, such as domestic relations proceedings, de
novo. Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003). We review the lower court’s
findings of fact and affirm unless those findings are clearly erroneous or clearly against the
preponderance of the evidence. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629
(2003); Powell v. Powell, 82 Ark. App. 17, 110 S.W.3d 290 (2003). A finding of fact is
clearly erroneous when the reviewing court is left with a definite and firm conviction that a
mistake has been committed. Cole v. Cole, supra. In reviewing the lower court’s findings,
we give due deference to the circuit judge’s superior position to determine the credibility of
the witnesses and the weight to be accorded to their testimony. Hunt v. Hunt, 341 Ark. 173,
15 S.W.3d 334 (2000).
Our deference to the circuit court is greater in custody-
determinations, as a circuit court charged with deciding a question of child custody must
utilize to the fullest extent all of its powers of perception in evaluating the witnesses, their
testimony, and the child’s best interest. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422
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(2001).
Reconciliation Agreement
First, appellant argues that the circuit court erred in voiding the reconciliation
agreement between the parties. He contends that the agreement was valid and that appellee
failed to prove any of the grounds required to set aside the agreement and urges this court to
reverse the circuit court’s decision. Appellee argues that the agreement was entered into
through fraud, was patently unfair, and was abandoned by the parties.
Both parties agree that Florida law should govern the validity of the agreement. They
cite Ducharme v. Ducharme, 316 Ark. 482, 872 S.W.2d 392 (1994), which states that in
choice-of-law matters for contract disputes, the law of the state with the most significant
relationship to the issue at hand should apply. Here, the first divorce was filed in Florida, the
agreement was signed in Florida, and at least appellant was living in Florida.4
Both the circuit court and appellee start their analysis of the issue by looking at Cox
v. Cox, 659 So. 2d 1051 (Fla. 1995); however, Cox is inapplicable to the present case. In
Cox, the Florida Supreme Court addressed the effect that reconciliation or remarriage has on
a previous property settlement agreement or separation agreement. The court held that
reconciliation or remarriage abrogates executory provisions of the previous agreement, but
that executed provisions of the agreement are unaffected. Both the circuit court and appellee
cite Cox for the proposition that a reconciliation agreement may be set aside on one of two
bases: (1) fraud, duress, misrepresentation, undue influence, coercion, concealment, or lack
of knowledge in its procurement; or (2) the agreement is patently unfair. However, these
caveats have nothing to do with the Florida court’s final ruling.
Rather, they were
recommendations made by one of the parties as to what caveats should be placed on the
4
We note the conflicting testimony regarding whether appellee had moved to Florida
or was merely visiting appellant in Florida when the parties signed the agreement.
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enforceability of a prior marital settlement agreement. The Cox court never addressed
reconciliation agreements entered into after parties agree not to pursue a divorce.
By misapplying Cox, the circuit court erred when it set aside the parties’ reconciliation
agreement solely based upon a finding that it was “patently unfair.” Under Florida law, even
unfair agreements may be valid and enforceable.
A correct statement of Florida law regarding setting aside postnuptial agreements is
found in Casto v. Casto, 508 So. 2d 330 (Fla. 1987). Under Florida law, a spouse may set
aside or modify a postnuptial agreement by establishing that it was reached under fraud,
deceit, duress, coercion, misrepresentation, or overreaching. Id. Overreaching is defined as
“that which results from an inequality of bargaining power or other circumstances in which
there is an absence of meaningful choice on the part of one of the parties.” Schreiber v.
Schreiber, 795 So. 2d 1054, 1057 n.3 (Fla. Ct. App. 2001) (citing Black’s Law Dictionary
1104 (6th ed. 1990)). Even though an agreement is one-sided and unfair, that alone does not
make it the result of overreaching absent a showing that the agreement resulted from an
inequality of bargaining power or other circumstances such that there was no meaningful
choice on the part of the disadvantaged party. Id. “[O]verreaching involves the situation
where one party, having the ability to force the other into an unfair agreement, does so.” Id.
at 1057.
In the alternative, the spouse may seek to set aside a postnuptial agreement on the
basis that the agreement is unfair or unreasonable, given the circumstances of the parties.
Casto v. Casto, supra. To establish unreasonableness, the party seeking to set aside the
agreement must show that the agreement does not adequately provide for the challenging
spouse and, consequently, is unreasonable. Id. However, this does not end the court’s
inquiry. Once the challenging spouse establishes that the agreement is unreasonable, a
presumption arises that there was either concealment by the defending spouse or a presumed
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lack of knowledge by the challenging spouse of the defending spouse’s finances at the time
the agreement was reached. Id. This presumption may be rebutted by the defending spouse
by showing that (a) a full, frank disclosure to the challenging spouse by the defending spouse
before the signing of the agreement relative to the value of all the marital property and the
income of the parties, or (b) a general and approximate knowledge by the challenging spouse
of the character and extent of the marital property sufficient to obtain a value by reasonable
means, as well as a general knowledge of the income of the parties. Id. The Casto court
recognized that parties to a marriage are not dealing at arm’s length and that they may enter
into bad fiscal agreements for any reason; however, “[i]f an agreement that is unreasonable
is freely entered into, it is enforceable.” Id. at 334; see also Waton v. Waton, 887 So. 2d 419
(Fla. Ct. App. 2004).
Further, in Macar v. Macar, 803 So. 2d 707 (Fla. 2001), the Florida Supreme Court
announced that, when challenging a settlement agreement entered into after the
commencement of litigation and the utilization of discovery procedures, a party seeking to
set aside a settlement agreement must challenge the settlement under Fla. R. Civ. P. 1.540
(similar to Fed. R. Civ. P. 60), which would only allow for the agreement to be set aside in
light of evidence of fraud or in light of newly discovered evidence that by due diligence
could not have been discovered in time to move for a new trial or rehearing. If Macar
governs, the Casto framework is inapplicable.
While this court performs a de novo review of the record, it is sometimes necessary
to remand a case to the circuit court for a determination of the parties’ rights. Rigsby v.
Rigsby, 346 Ark. 337, 57 S.W.3d 206 (2001). This is particularly the case “when the [circuit]
court has tried the case on the wrong legal theory and where we cannot plainly see what the
rights and equities of the parties are.” Id. at 343, 57 S.W.3d at 211 (quoting Henslee v.
Kennedy, 262 Ark. 198, 210, 555 S.W.2d 937, 943 (1977)). This is one of those cases where
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the equities are unclear, warranting remand. If appellant’s testimony is fully believed,
appellee entered into the reconciliation agreement while represented by counsel, and the
agreement, as one-sided as it is, may be enforceable. If appellee’s testimony is fully
believed, appellee was presented the agreement under circumstances possibly constituting
duress. Accord Hjortaas v. McCabe, 656 So. 2d 168 (Fla. Ct. App. 1995) (setting aside a
prenuptial agreement on the grounds of duress when the wife was presented with document
for first time two days before the wedding, the actual terms of the agreement were previously
unknown to her, and the agreement contained no information about the husband’s finances).5
Accordingly, we reverse the circuit court’s order to the extent that it set aside the
reconciliation agreement and remand this case for entry of an order consistent with this
opinion.6
Custody of Kyle
Next, appellant argues that the circuit court erred in awarding custody of Kyle to
appellee. He contends that the circuit court should have awarded him custody of Kyle in
light of Kyle’s stated preference to live with appellant. It is well-settled that trial courts are
to award custody “solely in accordance with the welfare and best interest of the child,” with
all other considerations secondary. Ark. Code Ann. § 9-13-101(a)(1)(A) (Supp. 2003); see
also Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001); Hickman v. Culberson, 78 Ark.
App. 96, 78 S.W.3d 738 (2002). The attitudes and wishes of the child, although not
controlling, are proper for the consideration of the court in making an award of custody.
Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999); Hepp v. Hepp, 61 Ark. App.
240, 968 S.W.2d 62 (1998). Further, it is proper for the circuit court to consider the goal of
5
For the same reason, we cannot determine the validity of appellee’s argument that the
parties essentially abandoned the reconciliation agreement.
6
The facts regarding the execution of the reconciliation agreement were sufficiently
developed at trial.
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keeping siblings together. Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998).
However, an award of custody based solely upon the presumption that siblings should remain
together is contrary to the law. Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2000).
Finally, the fact that a parent has been the primary caretaker, while not determinative, is also
relevant and worthy of consideration. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d
494 (1998). The circuit court can consider several factors in making a custody determination,
as long as the polestar of that decision remains the best interests of the child.
We affirm the circuit court’s decision to award custody of Kyle to appellee. True,
appellant presented evidence that would support an award of custody to him: Kyle stated a
preference toward appellant, and appellant has maintained contact with his children.
However, to reverse the award of custody in this case would be to completely disregard the
evidence in this case supporting the award: Kyle’s living situation is stable and has been for
the previous four years, and an award of custody would separate him from his little sister and
from his mother, who has been Kyle’s primary caretaker his entire life. Finally, the record
indicates that the circuit court fully considered Kyle’s preference and, as Kyle noted in his
testimony, he will experience negatives no matter which parent has custody. The circuit
court’s award of custody to appellee, despite Kyle’s stated preference, is not clearly
erroneous.
Reversed and remanded with instructions in part; affirmed in part.
V AUGHT and R OAF, JJ., agree.
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