Conley v. Conley

2019 Ark. App. 424

587 S.W.3d 241

Samuel L. CONLEY, Appellant

v.Althea T. CONLEY, Appellee

No. CV-18-748

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: October 2, 2019

J.F. Valley Esq., P.A., by: James F. Valley, Helena, for appellant.

Ronald L. Griggs, El Dorado, for appellee.

RITA W. GRUBER, Chief Judge

The sole issue on appeal in this case is whether the circuit court's award of attorney's fees in a postdivorce-decree order constitutes an abuse of discretion. We recognize that appellant has presented four additional points¹ on appeal concerning the court's divorce decree, but we have no jurisdiction to address them. Accordingly, we grant appellee's motion to dismiss a previous appeal from the divorce decree (CV-18-603), we grant appellee's motion to limit the appeal in this case to the issue of attorney's fees, and we affirm the award.

Althea and Samuel Conley were married in 1988 and divorced by decree entered on December 30, 2016. During their marriage, both parties pursued advanced degrees with Althea obtaining a Ph.D. in clinical psychology and an M.D. She completed her education in 2004 and has been a practicing psychiatrist in South Arkansas since that time. Samuel has a B.S. in engineering, a master's degree in statistics, and several years of coursework for a Ph.D. in biostatistics. He did not work outside the home during their marriage but stayed home to care for their four daughters² and oversee the parties' rental properties. Althea filed a complaint for divorce on September 30, 2015. Both parties asked the court for primary custody; Samuel also asked for alimony.

The circuit court entered a temporary order in January 2016 awarding primary custody to Althea and directing that she and the children remain in the family home on Ridgewood Drive in El Dorado. The court awarded exclusive possession of the parties' West Little Rock home on Quercus Circle to Samuel.

The circuit court held a final hearing in December 2016 and entered a divorce decree on December 30, 2016. The court granted a divorce to Althea and awarded her custody of the three minor children with visitation to Samuel "as agreed between the parties" or pursuant to the court's standard visitation guidelines if they could not agree. The court ordered Samuel to pay weekly child support of $119. The court considered that Samuel was unemployed but noted the testimony of a qualified rehabilitation counselor confirming he had the education and physical ability to earn a substantial wage but lacked the desire to work. The court imputed minimum wage so that Samuel could prepare to get a job but ordered him to "immediately present proof of income" upon obtaining employment and stated that child support would be modified at that time. The court also ordered Althea to pay alimony in the amount of $2000 a month for twenty-four months. Finally, the court specifically divided the parties' personal property and made the following division of their real property:

a. [Althea] shall receive the residence and contents therein located at ... Ridgewood Drive, El Dorado, Arkansas. [Samuel] shall receive as his own property the four duplexes in North Little Rock, Arkansas, and their contents.

b. There are two houses that are owned by the family LLC in Little Rock, Arkansas. Each party shall receive one of the houses and contents. If the parties cannot agree as to the ownership of these two houses, they shall be sold and the proceeds of the sale divided evenly between them.

c. The home at ... Quercus Circle, Little Rock, Arkansas, and contents shall be sold and the proceeds divided evenly after payment of the debt presently owed for said property and costs of sale. A sale may be avoided by agreement between the parties made within thirty (30) days of the decree.^[3]

Samuel filed a notice of appeal from the decree on January 27, 2017. An order to extend the time to lodge the record on appeal was entered on April 25, extending the time to lodge the record with our supreme court to August 28. Samuel did not lodge the record by August 28.

On October 10, 2017, Althea filed a motion for increase in child support and petition to sell real estate. She contended that Samuel had failed to gain appropriate employment and asked the court to impute income based on his earning ability and standard of living. She also alleged that she had paid the mortgage on Quercus Circle while Samuel continued to live there. She claimed that they had not been able to agree about the sale of the property and asked the court to order the property sold and to provide that she be reimbursed for her payments. She also asked the court to order the two Little Rock homes owned by the family LLC to be sold and the proceeds divided because the parties had been unable to agree on a division of ownership. Samuel responded to the motion, denying all of Althea's allegations; he also denied that the parties were divorced on December 30, 2016, claiming that some matters were incomplete; thus, the order was not a final order.

At a hearing on the motion on April 11, 2018, Althea testified that her understanding of the divorce decree was that the Quercus Circle residence was to be sold if the parties did not reach another agreement about the property within thirty days of the divorce decree. She said that she had tried to arrange a sale but could get no agreement or cooperation from Samuel. She said she was torn about making the monthly mortgage payments and approached Samuel about giving him the Quercus Circle residence, but he would not discuss it. She also testified that she had been unable to get him to cooperate on dividing or selling the other two Little Rock homes. She testified that she offered to give him the two Little Rock homes and the Quercus Circle residence just to have closure and to be able to "have my life" and "move on," but he refused to discuss it. She testified that her financial obligations made it difficult to pay both the alimony and the extra mortgage payment, so she decided to pay the mortgage instead of the alimony. She also testified that in October 2017 her lawyer sent to Samuel's counsel a deed to the El Dorado home for Samuel to execute along with deeds signed by her for the four duplexes awarded to Samuel in the divorce. Samuel had not returned the Ridgewood Drive deed at the time of the hearing in April 2018.

Samuel testified that although the children had been in Althea's custody for over two years at the time of the motion hearing, his profession had been and remained an "at-home father." He said he had been looking for a job but thought it in his best interest to pursue a doctorate. When provided copies of the letter from Althea's counsel with attached deeds to the four duplexes, he said he did not recall his lawyer giving him those deeds, and he explained that he did not want to "waive any of his rights" by signing the deed to the Ridgewood Drive residence. But he did recall that the divorce decree awarded that property to Althea.

The court entered an order on May 15, 2018, denying Althea's request for additional child support but granting her relief on the property issues. Regarding the home on Quercus Circle, the court ordered it to be sold by a commissioner approved by the court and directed the proceeds to be divided evenly between the parties after fees and costs had been paid. The court found that "despite the efforts of" Althea, Samuel had failed to cooperate and intentionally delayed efforts to conclude a sale of the home in spite of the divorce decree's direction that it was to be sold and the proceeds divided. The court directed that Althea be given credit for one-half of the mortgage debt she had paid since the divorce decree. The court also ordered Samuel to execute a deed to the Ridgewood Drive residence, which was granted to Althea in the divorce, and Althea to execute deeds to the four duplexes awarded to Samuel in the divorce. Samuel filed a timely notice of appeal from the order on June 14, 2018.

On July 18, 2018, almost a year after it was due, Samuel tendered the record in his earlier appeal from the decree of divorce, CV-18-603. He also filed a request for a stay of the commissioner's sale of the Quercus Circle property (scheduled for the next day) and petitioned for a writ of certiorari to complete the record. The supreme court denied the request and petition on July 19.

On September 10, 2018, Samuel lodged the record in this appeal from the order dated May 15, 2018. On October 29, 2018, he asked this court to join the record from his earlier appeal for purposes of this appeal. We granted the motion on November 11, 2018, and the record was transferred from our supreme court.

On February 14, 2019, Althea filed two motions: the first was filed with the supreme court in CV-18-603 to dismiss Samuel's appeal from the divorce decree for failure to timely lodge the record. The second was filed in this case to limit the points on appeal to those issues decided in the court's order of May 15, 2018. Four of the five points in Samuel's brief in this appeal were from issues decided in the divorce decree entered on December 30, 2016. On April 4, 2019, the supreme court transferred the motion to dismiss to this court. This court passed both motions to the panel to be heard on submission.

I. Motion to Dismiss

Whether the four points on appeal from the divorce decree are before us is a matter of subject-matter jurisdiction. We turn first to the motion to dismiss Samuel's first appeal in CV-18-603. Samuel filed a timely notice of appeal from the court's divorce decree entered December 30, 2016. He did not tender the record, however, until July 18, 2018, almost a year after it was due on August 28, 2017. The supreme court denied his petition for certiorari to complete the record.

The timely lodging of the record is a jurisdictional requirement to perfect an appeal. Fire Sys. Tech., Inc. v. First Cmty. Bank of Crawford Cty. , 2015 Ark. App. 334, at 5, 464 S.W.3d 125,...