Bennett v. Bennett

2016 Ark. App. 308

496 S.W.3d 409

Danny Bennett, Appellant

v.Sheila Bennett, Appellee

No. CV–15–310

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered June 8, 2016

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

Robert M. Abney, P.A., by: Robert M. Abney, for appellee.

BART F. VIRDEN, Judge

Appellant Danny Bennett appeals from the White County Circuit Court's December 1, 2014 order that divided the parties' marital property and debt, awarded permanent alimony, and awarded attorney's fees.¹ Danny raises four points on appeal: (1) the second circuit court judge misinterpreted the prior judge's temporary order concerning the mortgage payments, and, after the marital home was sold, Danny should not have been ordered to continue making $1600 more each month in payments toward the marital debt than Sheila was required to pay; (2) the circuit court abused its discretion in awarding Sheila the amount of attorney's fees that it did; (3) the circuit court erred in not making Sheila equally liable for the Audio Express debt; and (4) the circuit court abused its discretion in awarding the amount of alimony that it did. We affirm.

I. Facts

In August 2013, Sheila Bennett filed for divorce after thirty years of marriage to Danny Bennett. Danny answered and filed a counterclaim for divorce, citing general indignities, though he eventually withdrew his counterclaim. Sheila requested temporary alimony. On September 17, 2013, the circuit court (at that time Judge Craig Hannah) held a hearing on the matter.

Sheila Bennett testified at the hearing. Sheila stated that her weekly income was about $420 and that her ex-husband made about twice her income. Sheila requested that the circuit court allow her to live in the marital home, that it award her the truck she drove, that it grant her temporary possession of the home's furnishings, and that it grant her spousal support and attorney's fees. Sheila requested that the circuit court order Danny to continue paying the mortgage and other bills. Sheila testified that she gave Danny $200 a week and that he had been using that money to pay bills. Sheila testified that although she could live with her mother temporarily she could not live there long-term.

Danny Bennett also testified. He denied that he had spent any money on his girlfriend, and he denied that she accompanied him on any trips. He also testified that he could make many of the repairs to the marital home that were necessary before selling it. Danny requested that the court allow him to stay in the marital home to make the necessary repairs in order to prepare it for sale. Danny disagreed that Sheila paid him $200 once a week, stating that she actually paid him $400 a month and that he was paying the bulk of the debt. Danny stated that he made either two or three times Sheila's income.

The circuit court made the following statement in response to the testimony presented at the hearing:

It appears that the parties have more debts than they can pay and neither one alone can pay all of these debts. The fair thing to do on some of these bills is to make the minimum payments on each one. Mr. Bennett will pay the first $1600 and then both will be equally obligated to pay their half. By doing that I think that it will get this to where their disposable income is down to about the same amount. On the home, if the parties can't agree within thirty days then both parties will have to move out. The house will go on the market within forty-five days.

Later, at the end of the hearing, the following clarification occurred:

THE COURT : Mr. Bennett will be liable for some sort of alimony, or shifting of the debt, or something, because that is what the law is going to require. On a temporary basis, I think Mr. Bennett can pay the first $1600 of the debt. That gets him fairly close to the same equivalent as paying alimony.

COUNSEL FOR SHEILA : I am trying to make sure I understand what the Court is telling me.

THE COURT : He will pay the first $1600 and then the balance of the debt they are equally responsible for.

COUNSEL FOR SHEILA : So it's up to us to determine what that $1600 is going to be made up of?

THE COURT : Pay the house payment and the second mortgage and that just about eats it right there.

COUNSEL FOR DANNY : Certainly they can work toward listing it while the repairs are being made. Looking at the Affidavit of Financial Means and the supplements provided by the parties, the monthly debt obligation of the parties is $5375, but what this Court is ordering is that Danny Bennett will pay the first $1,600.00 of that sum?

THE COURT : I think the mortgage ...

COUNSEL FOR DANNY : The mortgage and the second mortgage.

THE COURT : The first and the second mortgage gets you right there at that amount. I don't know if these other payments are minimum payments or ...

COUNSEL FOR SHEILA : We really don't either. We haven't received any discovery yet.

THE COURT : I am going to say that you all are equally responsible. If we come back to court and somebody needs to pay more than the other, then it will be balanced out at the final.

...

THE COURT : Both of them are going to have to find a place to live and nothing will change because they will both have new expenses. Mr. Bennett will still be responsible for—

COUNSEL FOR DANNY : The first and second—

THE COURT : —paying the first and second mortgage and if—

COUNSEL FOR DANNY : They'll—

THE COURT : —they're fortunate and the house sells quick, then he'll pay $1600 on something else.

On the same day, the circuit court entered a temporary order in which it found that the parties had agreed to sell their home to help pay down marital debt. The circuit court also found that “Danny Bennett will pay the first $1600 of marital debt which would be the first and second mortgage on the parties' marital home. The parties will each be responsible for payments of one-half the remaining monthly payments on the parties' marital debt on a temporary basis.” The court awarded temporary spousal support to Sheila and deferred making a ruling on her request for temporary attorney's fees until the final hearing.

Judge Thomas Hughes was later assigned the case, and he entered the decree of divorce on October 2, 2014, which set forth that a property-settlement agreement would be entered at a later date. On December 1, 2014, the circuit court entered the order settling the property issues. The circuit court found that the April 2014 sale of the parties' marital home resulted in a net profit of $22,157.96. The circuit court also found that the original temporary order ordered Danny to pay $1600 per month “toward the payment of the parties' marital debts. This would be the first and second mortgage on the parties' marital home.” In its order, the circuit court noted that Danny had admitted not making all of those payments since the entry of the temporary order; therefore, Danny's share of the $22,157.96 would be reduced by the amount of the outstanding mortgage payments, which totalled $2,096.21. The circuit court found that Danny spent $4,541.25 getting the house ready to sell, and Sheila owed him half of that amount, totaling $2,270.63. The circuit court found that each party was equally responsible for the remaining marital debt.

The order also settled the issues surrounding the stock in Danny's business. The circuit court found that Danny had obtained 40% of the stock in Audio Express, and had given a promissory note for $90,000 for this stock and that he had also given another promissory note for $24,000 for capital for the business. The circuit court ordered that Sheila would receive one-half of the stock, “subject to the outstanding debt for the purchase of the stock in the amount of $114,000.” The circuit court also found that each party would receive half of the proceeds of the marital IRA accounts.

On the issue of permanent alimony, the circuit court awarded $1500 per month in alimony to Sheila in light of the length of the marriage, in order to allow her to maintain a similar lifestyle, and in order to fairly divide the equities. In support of its award, the circuit court made the following findings: during the thirty-year marriage, Danny was the primary income earner; during the last five years, Danny earned 73% of the income, and Sheila earned 27%; Danny had been able to pay his girlfriend's household expenses and had moved in with her; Danny had the ability to pay alimony based on his current salary; and Sheila must obtain medical insurance and housing.

Sheila was awarded $6,641.10 in attorney's fees, and the circuit court awarded her costs of $165. Both parties were held in contempt-Sheila for failing to pay costs associated with preparing the house for sale, and Danny for destroying personal property that had been claimed by Sheila and for not paying certain marital debt-but neither party was sanctioned.

On December 12, 2014, Danny filed a motion for reconsideration. In the motion he asserted that the court's adoption of Sheila's proposed findings of fact and conclusions of law was not supported by the evidence. In his motion, Danny disputed the circuit court's decision to reimburse Sheila for outstanding mortgage payments from the net amount garnered from the sale of the marital home, that the circuit court erred in continuing the order to pay $1600 per month toward the marital debt after the home sold, that Sheila was not entitled to attorney's fees or, alternatively, she should not have been awarded attorney's fees in the amount awarded, and that the amount of alimony awarded was unfair in light of their current financial status. The motion was denied, and Danny filed a timely notice of appeal.

II. Points on Appeal

A. The $1600 Monthly Payments

As a general rule, judgments are construed like any other instruments; the determinative factor is the intention of the court, as gathered from the judgment itself and the record. Chester v. Pilcher, 2013 Ark. App. 571, at 8, 430 S.W.3d 130, 135...