Seju Goellner Oh v. Joseph Goellner
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
LARRY D. VAUGHT, JUDGE
DIVISION I
CA06-1202
October 10, 2007
SEJU GOELLNER OH
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
[DR-04-3889]
HON. ELLEN BASS BRANTLEY,
CIRCUIT JUDGE
V.
JOSEPH GOELLNER
APPELLEE
AFFIRMED IN PART; REVERSED
AND DISMISSED IN PART
In this divorce case, appellant Seju Oh moved for contempt against appellee Joseph
Goellner, alleging that he failed to provide her an executed Qualified Domestic Relations
Order authorization. Goellner answered the motion for contempt and filed a counter motion
for contempt, claiming that Oh failed to timely vacate the marital property in violation of the
property settlement, that she failed to pay him one-half of the parties’ 2004 tax refund, and
that she failed to pay him one-half of the proceeds from the sale of the parties’ boat. The trial
court entered an order1 finding that Oh was not in contempt for failing to vacate the marital
property and that Goellner was not in contempt for failing to provide Oh an executed
1
While the trial court orally ruled that Goellner should receive one-half of the 2004
tax refund and one-half of the proceeds from the sale of the smaller boat, the written order
transposes the parties’s names and actually states that Goellner is ordered to pay Oh those
amounts. Neither party addressed this mistake at the trial court level or on appeal.
QDRO authorization. The order concluded that Oh must pay Goellner one-half of the
proceeds from the sale of the parties’ boat and that Oh must pay Goellner one-half of the
parties’ 2004 tax refund. Oh appeals from the trial court’s order. We affirm in part and reverse
in part.
Oh and Goellner’s divorce decree was entered February 28, 2005. Incorporated into
the divorce decree was the parties’ property-settlement agreement. Pertinent provisions of the
agreement are as follows:
3. PERSONAL PROPERTY.
(a)
(b)
(c)
Except as otherwise provided in this Property Settlement Agreement, Wife
shall receive and retain as her sole and separate property all personal property
in her possession.
Except as otherwise provided in this Property Settlement Agreement, Husband
shall receive and retain as his sole and separate property all personal property in
his possession.
Husband shall have ownership of the boat.
...
5. RETIREMENT ACCOUNTS AND FUNDS.
...
(f) Husband shall bear all expenses, including any attorney’s fees, incurred by Wife
with regard to the drafting and approval of and Qualified Domestic Relations Orders
or other post-divorce orders which may be obtained dividing retirement or other
investment pensions or accounts.
...
13. INSTRUMENTS. Each of the parties, from time to time, at the request of the
other, shall execute, acknowledge and deliver to the other any and all further
instruments and take such steps as may be reasonably required to give full force and
effect to the provisions of this Agreement.
...
16. WAIVER AND MODIFICATION. No modification or waiver of any of the
terms of this Agreement will be valid unless made in writing and signed by both
parties.
2
At the hearing on the competing motions for contempt, Oh testified that she filed the
motion because Goellner refused to provide her an executed QDRO authorization as
required in paragraph 13 of the property-settlement agreement. Oh further testified that she
had requested the authorization on ten occasions. Oh conceded that in 2005 she knew of (and
had received) different packages of QDROs from Goellner’s prior attorney.
Oh then testified that Goellner mailed her the parties’ 2004 tax refund, which was
made payable to both parties and totaled $2880. She testified that she had not paid Goellner
any portion of the refund and that the tax refund was not mentioned in the propertysettlement agreement. Oh recalled that the day after she received the refund check from
Goellner, he came over to her house and offered to pay her $6000 and to let her retain the
entire refund check, in exchange for the title to the parties’ Infiniti SUV.
Oh also testified that the parties had two boats. There was a larger boat that Oh and
Goellner lived on for several years and that Goellner owned prior to their marriage. She
testified that the smaller boat was in her possession at the time of the divorce and that she sold
it for $7000. She admitted that she did not pay Goellner any of the proceeds of that sale and
denied agreeing to divide the proceeds from the sale of the boat with him.
Goellner testified that it was his belief that he had complied with the requirements of
the property settlement in 2005 when he hired a specialist to prepare the QDROs and that
they were turned over to Oh’s attorney at that time. Goellner denied reaching an agreement
with Oh that he would pay her $6000 plus let her keep the 2004 tax refund check in
exchange for the SUV. He testified that they agreed that he would only pay her $6000 for the
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vehicle.
On the issue of the boat, Goellner testified that he understood that paragraph 3 of the
divorce decree gave him the smaller boat, because the larger boat was non-marital property.
He testified that Oh later told him that the decree gave him ownership of the larger boat, not
the smaller boat, and so Goellner agreed to sell the smaller boat and split the proceeds with
her. He testified that he cleaned the boat and towed it from the marina to Oh’s house in
January of 2005 for that purpose. He also testified about, and offered into evidence, e-mails
that he received from Oh wherein she agreed to sell the “little boat” and give him half of the
proceeds.
From the bench, the trial court found that Goellner prepared the QDROs and was not
in contempt. The trial court found that there was ambiguity in the property-settlement
agreement on the issue of the boat because the agreement only referenced one boat when
there were two. The trial court also found that the parties, subsequent to the decree, did not
follow the language of the decree in disposing of their personal property. The trial court
ordered Oh to pay Goellner one-half of the proceeds of the boat sale and one-half of the 2004
tax refund. Each party was ordered to pay their own attorney’s fees. Thereafter, the trial court
entered an order that not only included its oral findings, but also found that Oh was not in
contempt for failing to vacate the marital property.
Oh’s first point on appeal is that the trial court erred in finding the property-settlement
agreement ambiguous, modifying the agreement, and awarding Goellner one-half of the
proceeds of the boat and one-half of the 2004 tax refund. Oh contends that Goellner waived
his right to these proceeds by failing to assert these rights in the original divorce proceeding.
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This is a jurisdictional argument.
Our court has held that a trial court does not have jurisdiction to modify a propertysettlement agreement that purports to be a complete and final settlement of all marital
property and that is incorporated into a divorce decree, if the modification is sought more
than ninety-days after the divorce decree was entered and does not otherwise comply with
Rule 60 of the Arkansas Rules of Civil Procedure,2 or fall within the general reservation of
jurisdiction provision in the decree. Linn v. Miller, ___ Ark. App. ___, ___ S.W.3d ___ (Sept.
5, 2007); Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988); Harrison v. Bradford, 9 Ark.
App. 156, 655 S.W.2d 466 (1983).
In Jones, supra, the wife filed a motion, four months after the divorce had been entered,
asking the court to distribute $66,000 of the husband’s corporate stock and profit-sharing
account. The trial court, relying on Missouri law, found that these assets were marital property
2
Rule 60 provides in pertinent part:
(a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage
of justice, the court may modify or vacate a judgment, order or decree on motion fo
the court or any party, with prior notice to all parties, within ninety days of its having
been filed with the clerk.
...
(c) Grounds for Setting Aside Judgment, Other Than Default Judgment, After Ninety
Days. The court in which a judgment, other than a default judgment...has been
rendered or order made shall have the power, after the expiration of ninety (90) days
of the filing of said judgment with the clerk of the court, to vacate or modify such
judgment or order:
...
(3) For misprisons of the clerk.
(4) For misrepresentation or fraud...by an adverse party.
...
Ark R. Civ. P. 60(a), (c).
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not accounted for in the property-settlement agreement or divorce decree and thus divided
the undistributed marital property.3 Jones, 26 Ark. App. at 3, 759 S.W.2d at 43. The husband
appealed, arguing that the distribution of the corporate stock and profit-sharing account was
an impermissible modification of the property-settlement agreement. Id. at 3, 759 S.W.2d at
43.
On review, we stated that although the rationale under Missouri’s law had some appeal
“at first blush,” it was not in accord with Arkansas statutory or case law.4 For example,
Arkansas Code Annotated section 9-12-315 (Repl. 2002) requires that marital property be
divided at the time the divorce is granted. Moreover, our court has held that “the chancellor
loses the authority to distribute property not mentioned in the original decree after the decree
has become final.” Jones, 26 Ark. App. at 6, 759 S.W.2d at 45. Therefore, we declined to
adopt Missouri’s position on this issue:
Because this claim was not advanced at trial [precluding the application of the general
reservation of jurisdiction], no appeal was brought from the chancellor’s failure to
divide the property, and no grounds for modifying the decree after 90 days have been
established, we hold that the appellee waived any rights she may have had in the stock
and profit sharing account, and that the chancellor erred in amending the decree to
3
The trial court relied upon the Missouri case of Schulz v. Schulz, 612 S.W.2d 380
(Mo. App.1980), which held that, under the Missouri statute governing the disposition of
property in divorce, the trial court is obliged to determine and divide marital property, and
the jurisdiction of the trial court is not exhausted until it has done so. 612 S.W.2d at 382. The
Missouri appellate court also held that, although a divorce decree is final and not subject to
modification as to property distributed by the decree, the trial court nevertheless has
jurisdiction in a subsequent or ancillary proceeding to distribute the remaining undistributed
property.
4
The Missouri statute discussed in Schulz, Mo. Ann. Stat. § 452.330 (1986), does not
specify when the trial court must distribute the marital property; Arkansas’s statute does. See
Ark. Code Ann. § 9-12-315 (Repl. 2002).
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distribute this property. Mitchell v. Meisch, supra.
Jones, at 5–6, 759 S.W.2d at 45–46. See also Harrison, supra (holding that trial court was
without jurisdiction to modify the divorce decree where the property-settlement agreement
did not mention a tract of land owned by parties; modification took place after the expiration
of ninety days as per Arkansas Rule of Civil Procedure 60(b), and there was no clerical
correction to make under Rule 60(a)); Linn, supra (holding that the trial court had no
jurisdiction to enter an amended order to the original divorce decree directing the husband
to pay the wife his share of the mortgage payoff and awarding a tract of land to the wife,
where the amendment did not comply with Rule 60’s time constraints or other Rule 60
requirements; general reservation of jurisdiction did not apply because the matters dealt with
in the amended order were not issues brought before the trial court in the original action).
Applying the above law to the facts of this case we hold that the trial court erred in
modifying the property-settlement agreement by ordering the parties to equally divide the
2004 tax-refund check. The divorce decree was entered February 28, 2005. Goellner’s motion
to distribute the refund, filed January 11, 2006, came long after Rule 60's ninety-day period
expired. No other grounds for the application of Rule 60 were pled or proven, and therefore
Rule 60 did not give the trial court jurisdiction to modify the property-settlement agreement.
The general reservation of jurisdiction, which is included in the parties’ divorce decree,5 does
not give the trial court jurisdiction because the parties never mentioned the refund at the time
5
The general reservation of jurisdiction provides: “This Court doth retain jurisdiction
for this cause for such further orders and actions as may be necessary and proper.”
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of the divorce, and the tax refund was not included in the property-settlement agreement. As
such, the trial court had no jurisdiction to distribute the refund check, and we reverse on this
issue.
The same jurisdictional analysis is required when reviewing the trial court’s
modification of the property-settlement agreement with regard to the boat. However, we
hold that the trial court did have jurisdiction to modify the agreement to include the division
of the proceeds from the sale of the boat under the general reservation of jurisdiction found
in the decree. The general reservation of jurisdiction applies in this instance because the parties
discussed the boat at the time of the divorce, and the property-settlement agreement addressed
a boat and the personal property of the parties. Therefore, we hold that the general reservation
of jurisdiction extended jurisdiction to the trial court to address this issue even though the
modification came after Rule 60's time constraints.
The trial court found that the reference in the property-settlement agreement to “the
boat” was ambiguous. 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. Pittman v. Pittman, 4
Ark. App. 293, 139 S.W.3d 134 (2003). Where the meaning of the words is ambiguous, parol
evidence is admissible to explain the writing. Id. The initial determination of the existence
of an ambiguity in a written contract rests with the trial court and, if an ambiguity exists, then
parol evidence is admissible and the meaning of the term becomes a question for the fact
finder. Id. On appeal, we do not set aside a trial court’s finding of fact unless it is clearly
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erroneous.
Oh argues on appeal that the property-settlement agreement was not ambiguous,
specifically, that the reference to “the boat” in paragraph 3 refers to the boat that Goellner was
living in at the time of the divorce. She claims that all other personal property, including the
boats and vehicles, were to be given to whomever had possession of them at the time of the
divorce. Based on her interpretation, the smaller boat was hers because she had possession of
it at the time of the divorce. She also argues that, while there may have been conversations
and e-mails exchanged between the parties post-decree, there were no written agreements
executed that modified the property-settlement agreement. Goellner testified that he thought
the boat that was given to him in the agreement was the small boat, because the larger boat
was non-marital property and would not have been discussed in the agreement.
We agree with the trial court that the reference to “the boat” in the propertysettlement agreement is ambiguous. In that agreement, the parties agreed that Goellner was
to receive “the boat,” but there were two boats. Because it cannot be determined to which
boat the property-settlement agreement referred, the agreement is ambiguous, and the trial
court properly considered parole evidence to explain it. However, because the parol evidence
was essentially a swearing match between the parties, the trial court relied on the e-mails
exchanged by the parties to ascertain their intent. Based on the e-mails, the trial court found
that Oh agreed that they should sell the small boat and split the proceeds. Because this factual
finding was not clearly against the preponderance of the evidence, we affirm on this point.
Finally, Oh argues that the trial court erred in finding that Goellner was not in
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contempt for failing to timely execute the QDRO authorization and in not assessing her
attorney’s fees against him. Our standard of review for civil contempt is whether the finding
of the circuit court is clearly against the preponderance of the evidence. See Gatlin v. Gatlin,
306 Ark. 146, 811 S.W.2d 761 (1991). A finding is clearly erroneous when, although there
is evidence to support it, the reviewing court on the entire evidence is left with a firm
conviction that an error has been committed. Omni Holding & Dev. Corp. v. C.A.G. Inv., Inc.,
___ Ark. ___, ___ S.W.3d ___ (June 7, 2007). Facts in dispute and determinations of
credibility are within the province of the fact-finder. Id.
In the instant case, Oh testified that she requested, ten times, an executed QDRO
authorization from Goellner and that she did not receive the authorization until after she filed
the contempt motion. However, the trial court heard testimony from Goellner that he hired
a specialist in 2005 to prepare the QDROs and that those were forwarded to Oh’s attorney
in May of 2005. Oh testified that she was aware that those QDROs were prepared at that
time. Goellner further testified that he thought by doing this, he complied with the propertysettlement agreement. The trial court believed Goellner and found that he acted in accordance
with the divorce decree/property-settlement agreement and that he was not in contempt. As
such, the trial court did not order him to pay Oh’s attorney’s fees. We cannot say that the trial
court was clearly erroneous in making these findings, and we affirm.
Affirmed in part; reversed and dismissed in part.
G LOVER and H EFFLEY, JJ., agree.
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