APPEAL FROM THE CARROLL COUNTY CIRCUIT COURT, WESTERN DISTRICT. NO. DR-2012-43 WD. HONORABLE GARY ARNOLD, JUDGE.
Parker Law Firm, by: Tim S. Parker, for appellant.
Kristine Bradt Kendrick, for appellee.
RITA W. GRUBER, Judge. WHITEAKER and BROWN, JJ., agree.
RITA W. GRUBER, Judge
On July 24, 2012, Karen Shepard (now appellee) filed a complaint for absolute divorce
from Richard White (now appellant) and, on the same date, propounded requests for admission on him. Shepard's complaint asserted that she was a Missouri resident, and White was a resident of Carroll County, Arkansas, and had been a resident there for more than sixty days prior to the filing of her complaint; that she and White were married on March 13, 2009; that the marriage was not a covenant marriage; that the parties separated on September 5, 2011, after which time they continuously lived separate and apart from each other without cohabitation; that there were property rights and debt responsibilities to be adjudicated; and that during the course of the marriage, White had inflicted such personal indignities upon her so as to entitle her to an absolute divorce pursuant to Ark. Code Ann. § 9-12-301(3). White timely answered the complaint, admitting that the parties had separated and remained apart, denying her allegation regarding his infliction of indignities, and stating that he would not contest the divorce. White counterclaimed for absolute divorce on the ground of general indignities, and he responded to her requests for admission.
On September 19, 2013, Shepard filed both an " Amended and Restated Complaint for Divorce from Bed and Board" and a motion for summary judgment. In her amended complaint, she alleged that White had failed to comply with the parties' agreement that had resulted from mediation:
On January 5, 2013, Plaintiff and Defendant entered into a mediation agreement, denominated a " Memorandum of Understanding" (the " Property Settlement Agreement" ), whereby Defendant agreed to refinance the mortgage on the home located at 400 Paradise Mountain Road, Eureka Springs, AR 72631 (the " Home" ) in his name only within 2 months from the execution of the Property Settlement Agreement and agreed to quitclaim his interest in Tracts 1, 2, 8, 9, 10, 11 and 12, Paradise Mountain Estates, Carroll County, Arkansas to Plaintiff.
The amended complaint also stated that the parties would quitclaim to each other nonmarital real properties in Missouri. Shepard requested that she be awarded a decree of divorce from bed and board, that White be ordered to specifically perform the mediation agreement, and that she be granted other relief.
In her motion for summary judgment, Shepard repeated her allegation that White had refused to comply with the parties' mediation agreement, and she further asserted that Missouri property she had acquired prior to their marriage was nonmarital. Exhibits attached to her motion included the memorandum of understanding and a letter from counsel to the Firefighters Pension System of Kansas City, Missouri, stating that under Arkansas and Missouri law, a " limited divorce" would not affect Shepard's eligibility to receive a surviving spouse's benefits. Other exhibits attached to the motion were the parties' financial affidavits; White's affidavit of September 17, 2013, restating her allegations and attesting to White's Arkansas residency and the parties' continuous separation without cohabitation since September 5, 2011; and a September 18, 2013 affidavit of Larry Brookbank, attesting to White's Arkansas residency and the parties' continuous separation without cohabitation since September 5, 2011. Shepard prayed that she be awarded a divorce from bed and board from White; that he be ordered to specifically perform the mediation agreement; that he be ordered to pay the monthly mortgage, insurance and tax payments on the home; that he be ordered to pay all taxes due on all of the property in Paradise Mountain Estates, Carroll
County, Arkansas, until such time as he quitclaims Tracts 1, 2, 8, 9, 10, 11, and 12 to her; and that he be ordered to quitclaim her nonmarital real property in Missouri to her.
White responded to the motion for summary judgment and opposed it. He responded that the parties had indeed signed the mediation agreement requiring him to refinance in his name, whereby Shepard's name could be removed, and that he had attempted to refinance, but the financial institutions he had approached had declined to refinance in his name alone. He asserted that the parties had subsequently reached a novation whereby he would attempt to obtain life insurance in order to protect her (as a mortgage obligor) in the event of his death, but the premiums that were quoted to him were prohibitively expensive.
White also answered the amended complaint--admitting the extended period of separation, admitting that the parties had signed the memorandum, but claiming that they had entered into novations or substituted agreements that he would obtain life insurance in lieu of refinancing the Eureka Springs home. He claimed that he " subsequently agreed to split the real estate" with Shepard, who then reneged on that agreement. He denied Shepard's allegation that he had refused to comply with the mediation agreement, pleading that he had attempted the refinancing but that financial institutions had refused to refinance solely in his name. He denied that the parties should quitclaim to each other their nonmarital real properties in Missouri, pleading that Shepard's Missouri home was marital property or debt because it was partially refinanced or paid for by refinancing the mortgage on the Eureka Springs home. He raised affirmative defenses of novation or substituted contracts, failure to state a claim upon which relief can be granted, and failure of condition precedent or frustration of purpose. He requested ...