Zimmer v. Wright
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Cite as 2011 Ark. App. 343
ARKANSAS COURT OF APPEALS
DIVISIONS I AND II
No. CA10-709
Opinion Delivered
May 11, 2011
ROBBIE FAYE ZIMMER
APPELLANT
APPEAL FROM THE SCOTT
COUNTY CIRCUIT COURT
[NO. DR-2006-132-II]
V.
HONORABLE DAVID H.
MCCORMICK, JUDGE
THOMAS RAY WRIGHT
APPELLEE
AFFIRMED
JOHN MAUZY PITTMAN, Judge
This is an appeal from two orders arising out of the trial court’s enforcement of its prior
divorce decree. Appellant raises several arguments on appeal, all of them turning on her
assertion that the trial court lacked jurisdiction to modify the divorce decree. We affirm.
The parties were married in 1998 and were divorced by a decree entered on June 11,
2009. The status of five certificates of deposit had been contested at trial, and the decree
contained a finding that the certificates of deposit bearing both of the parties’ names were
marital property. On July 23, 2009, appellee filed a motion asserting that appellant was in
contempt of court for failing to give him one-half of the value of the certificates of deposit.
Appellee requested that the trial court award him $26,469.96 as his share of the value of the
certificates of deposit, as well as interest accrued on the certificates from the day of separation.
Appellant filed a response denying that she had violated any court orders because none of the
Cite as 2011 Ark. App. 343
certificates of deposit were ever titled in appellee’s name. Appellant presented proof of this
assertion at the contempt hearing, and, on March 11, 2010, the trial court entered an order
finding that all five certificates of deposit were marital property and awarding appellee half of
the interest on the certificates.
Rule 60(a) of the Arkansas Rules of Civil Procedure generally prohibits the trial court
from modifying a judgment, decree, or order more than ninety days after entry; Rule 60(c)
allows modification of a decree after the expiration of ninety days for certain enumerated
reasons. Appellant argues that the trial court lacked jurisdiction to enter these orders on March
11, 2010, more than ninety days from the original decree of June 11, 2009, because the orders
appealed from constituted modifications of the original decree. We hold that the ninety-day
limitation of Rule 60 is inapplicable because the March 11 orders did not modify the original
decree but instead interpreted and enforced it.
The trial court retains jurisdiction beyond ninety days to interpret its decree to resolve
any ambiguity and clarify what the court actually intended. York v. York, 2010 Ark. App. 343;
Abbott v. Abbott, 79 Ark. App. 413, 90 S.W.3d 10 (2002). Appellant argues that there were
no ambiguities because the court’s order was clear: divide the certificates of deposit that were
held in the names of both of the parties. We do not agree. At the contempt hearing, a bank
official testified that appellee’s name did not appear as co-owner on any of the five certificates
in question. This evidence, which was not before the court at the time of the divorce hearing,
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Cite as 2011 Ark. App. 343
gave rise to a latent ambiguity 1 in the divorce decree, which clearly contemplated based on
the evidence presented at the original hearing that there were in existence certificates of
deposit in the joint names of the parties. The trial court had jurisdiction to resolve this
ambiguity and clarify its actual intent.
Finally, appellant argues that the trial court erred in failing to consider documents that
she proffered at the contempt hearing to determine ownership of the certificates of deposit.
We find no error. The issue at the contempt hearing was not the ownership of the accounts
but instead the interpretation and enforcement of the decree that the trial court had actually
entered. The documents in question were Chambers Bank records that were available to
appellant at the time of the divorce hearing but were not offered by her as evidence at that
time. The issue of ownership was fully litigated and decided in the original hearing, and
appellant was barred from relitigating that issue in the contempt hearing. See McAdams v.
McAdams, 357 Ark. 591, 184 S.W.3d 24 (2004). We note, too, that these latter documents
were prepared after the documents that were considered at the original hearing, which were
sent by Chambers Bank before the parties separated. Given that appellant was employed as
a loan officer at Chambers Bank, we cannot say that the pre-separation records were not more
accurate, or that the trial court erred in refusing to consider the later records proffered by her
at the contempt hearing to show ownership of the accounts.
1
A latent ambiguity arises when a written instrument on its face appears clear and
unambiguous but collateral facts exist that make its meaning uncertain. Countryside Casualty
Co. v. Grant, 269 Ark. 526, 601 S.W.2d 875 (1980).
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Cite as 2011 Ark. App. 343
Appellant’s request for reimbursement of the cost of the supplemental record
designated by appellee, consisting of the testimony and exhibits submitted at the hearing on
the motion for contempt, is denied. Those materials were necessary for our understanding of
the issues presented on appeal. Likewise, appellee’s motion for attorney’s fees for abstracting
the necessary supplemental record is granted in the amount of $1000. Other costs will be
assessed in the mandate.
Affirmed.
G LADWIN, M ARTIN, and H OOFMAN , JJ., agree.
H ART and B ROWN, JJ., dissent.
JOSEPPHINE L INKER H ART, Judge, dissenting. In the majority’s extraordinarily brief
opinion, it glosses over or completely omits key facts in this case that I believe are essential
to a proper discussion and understanding of the matter that we have before us. In Wright’s
fourteen-page contempt petition, he alleges that Zimmer was in contempt because she failed
to surrender to him his marital share of five certificates of deposit, as required by the June 11,
2009 divorce decree. Significantly, these certificates of deposit were not specifically identified
in the divorce decree. The provision in the decree that Wright claimed that Zimmer violated
stated:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all certificates
of deposit which contain the name of both Mr. and Mrs. Wright are marital property.
Although Ms. Wright testified that some of these certificates were purchased with
excess proceeds of the City Lake property, (Zimmer’s non-marital property) the Court
finds that by placing Mrs. Wright’s name on them, the proceeds lost their status as
non-marital property and became marital property.
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In the petition, Wright acknowledges that he discovered that Zimmer had removed his name
from the certificates of deposit “on or about May 7, 2007.” That was more than two years
before the divorce decree was entered. Most of the rest of the fourteen-page petition argues
that the certificates of deposit should have been considered marital property—a tacit admission
that, as it was currently written, the divorce decree failed to award the funds to Wright.
In defending herself against Wright’s contempt petition, Zimmer presented proof that
the certificates of deposit that Wright sought did not “contain the name of both Mr. and Mrs.
Wright.” This proof included copies of the certificates of deposit that were faxed to Wright’s
attorney. These certificates of deposit listed Zimmer as the owner and showed that Wright
had previously been listed as a pay-on-death beneficiary, but his name had been removed by
Zimmer. The majority correctly notes that the trial court disregarded this evidence. I agree
with Zimmer that it was error to do so.
Instead, the trial court relied on monthly Chambers Bank statements that were mailed
to Wright and Zimmer when they were living together as husband and wife. These statements
did not disclose how the certificates of deposit were titled, but did include them as a line item
on the statement. How the trial court could conclude that these statements and not the
certificates of deposit themselves were the best proof of whether they “contain the name of
both Mr. and Mrs. Wright” is disturbing. In the order appealed from, the trial court even goes
so far as to recite that the evidence in question “might have resulted in a different decision
being reached in the Decree of Divorce.” Simply stated, the trial court is compelling Zimmer
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to relinquish half ownership in funds that she proved in the contempt hearing, but not in the
divorce hearing, were not marital property. The majority’s conclusion that “the issue at the
contempt hearing was not the ownership of the accounts but instead the interpretation and
enforcement of the decree” is mystifying.
I also find merit in Zimmer’s argument that the trial court erred by modifying the
divorce decree more than 90 days after it was entered. I agree with Zimmer that under Rule
60(a) of the Arkansas Rules of Civil Procedure, the trial court was without jurisdiction to
modify the decree. As noted previously, the certificates of deposit that are at issue were not
specifically identified in the divorce decree. In the order appealed from, the trial court accepts
Wright’s argument that it should have found the certificates of deposit were marital property
and specifically identifies the certificates of deposit that Wright sought in his petition. To
reach this result, the trial court allowed Wright to relitigate this issue, as he prayed to do in
his fourteen-page contempt petition. Significantly, the trial court completely abandons its
previous means of identifying which certificates of deposit were marital property, that is, those
that had Wright’s name on them. I do not disagree that Wright’s counsel did a better job with
his second bite at the apple, although I hasten to add that his success was in no small part due
to the trial court’s refusal to consider evidence that would make its ruling untenable. Should
Zimmer have been required to prove that the certificates of deposit were not marital property?
I decline to speculate. I do know that Wright presented inadequate proof whereby the specific
certificates of deposit could be found to be marital property under the divorce decree. Rule
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60 does not allow Wright a second opportunity. I would reverse and dismiss this case.
B ROWN, J., joins.
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