Silzell v. Silzell

2022 Ark. App. 50

640 S.W.3d 667

Gerald T. (Jerry) SILZELL, Appellant

v.Sammy Ann SILZELL, Appellee

No. CV-21-124

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered February 2, 2022

Rehearing Denied March 2, 2022

Rehearing Denied March 9, 2022

Jeremy B. Lowrey, for appellant.

Taylor & Taylor Law Firm, P.A., by: Tory H. Lewis, Andrew M. Taylor, and Tasha C. Taylor, for appellee.

PHILLIP T. WHITEAKER, Judge

Jerry Silzell appeals a Baxter County Circuit Court judgment awarded to Sammy Silzell based on a breach of contract. In his appeal, he claims that the contract was neither valid nor enforceable. We affirm.

For purposes of this opinion, we set forth the following facts. Jerry and Sammy were married in the early seventies and divorced in July 1987. They reconciled just shortly after the divorce and began cohabitating. Initially, they resided in Sammy's home. Eventually, they built a house and resided together in the home until they separated again in October 2011. Despite this long-term cohabitation, they never remarried.

In contemplation of their separation, Jerry and Sammy had an attorney draft a written agreement. Pursuant to the agreement and for "valuable consideration," the parties agreed (1) that Jerry shall pay Sammy $3,000 a month for life or until Jerry's death; (2) that Jerry shall keep Sammy as a beneficiary on a $350,000 life insurance policy; (3) that Sammy shall receive and that Jerry would transfer title to Sammy's 2007 GMC Yukon; (4) that Jerry shall pay Sammy's moving expenses from the present home to her new home; (5) that Sammy shall receive certain personal and household items; and (6) that Jerry would pay for the preparation of the agreement. Both parties signed the agreement at the attorney's office. Sammy subsequently moved out of the home.

Jerry performed his obligations under the agreement for approximately eight years. In July 2019, he ceased making the monthly payment under the agreement, claiming that his financial situation prevented him from continuing to perform under the agreement.

Sammy filed a breach-of-contract action. She alleged that Jerry had breached the contract by failing to make payments as required and requested specific performance. ¹

When Jerry answered pleading affirmatively that the agreement was null and void because of lack of consideration, Sammy amended her complaint to allege that her main obligation under the contract was to surrender the joint residence to Jerry.

The parties proceeded to a bench trial where both Jerry and Sammy testified to the facts outlined above. Both parties testified to the terms of the written agreement, which was entered into evidence, and presented parol evidence as to the facts surrounding its inception. Sammy testified that she sold her home and contributed the sale proceeds of $167,000 to the building of the joint home. Jerry claimed the former home was marital, but no physical proof of ownership was presented. Ultimately, Jerry admitted that Sammy contributed financially to the construction of the joint home. He did, however, claim the joint home was titled in his name alone, but no deed was ever introduced to verify his claim.

Concerning their separation, Sammy testified that Jerry's infidelity caused a complete and final breakup and that she could no longer live with Jerry. While Jerry denied infidelity, he admitted that the accusation was the cause of the separation. Sammy then testified that they entered into an agreement because she needed separate accommodations. Jerry admitted staying in the joint home and that Sammy moved out of the residence into a place of her own. Jerry further admitted he had complied with all the terms of the agreement for eight years. He stated that he stopped paying the $3,000 a month in June 2019 because he encountered difficulty paying his financial obligations as a result of poor cattle sales and the market had turned in a bad direction. At the close of all the evidence, the trial court entered an order requiring Jerry to fulfill his obligations under the contract and awarding a judgment in favor of Sammy for any arrearages that had occurred.² Jerry now appeals.

Following a bench trial, our standard of review is whether the trial court's findings were clearly erroneous or clearly against the preponderance of the evidence. AgriFund, LLC v. Regions Bank , 2020 Ark. 246, 602 S.W.3d 726. We view the evidence and all reasonable inferences arising therefrom in the light most favorable to the appellee. Id. Disputed facts and determinations of witness credibility are within the province of the trier of fact. Id. For questions of law, our review is de novo. See Gulfco La., Inc. v. Brantley , 2013 Ark. 367, at 10–11, 430 S.W.3d 7, 13.

Here, the court found that Sammy and Jerry had married, divorced, and then reconciled in a long-term cohabitation relationship. We conclude that these findings are not clearly erroneous. The court found that during the term of cohabitation, the couple lived together in Sammy's home until it was sold and that the proceeds of the sale went into the construction of a new joint home. The court further found that the parties lived together in the joint home until they decided to separate. While the parties presented competing testimony concerning their ownership interests, the trial court was required, as the trier of fact, to determine the credibility of witnesses and resolve conflicting testimony. Skokos v. Skokos , 344 Ark. 420, 40 S.W.3d 768 (2001). On appeal, we will not disturb a trial court's resolution of disputed facts or determinations of credibility as these are within the province of the fact-finder. See Reichert v. Colwell , 2020 Ark. App. 466, 611 S.W.3d 503. Thus, we cannot say the trial court's finding in this regard was clearly erroneous.

Concerning the postseparation status of the parties, the court found that Jerry fulfilled all his obligations to Sammy as set forth in the agreement until he voluntarily ceased monthly payments due to financial difficulties. These facts are either undisputed or supported by Jerry's testimony at trial. As such, they are supported by the evidence and are not...