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Jordan v. Jordan

Court of Appeals of Arkansas, Division III

January 18, 2017

CYNTHIA INGRAM JORDAN APPELLANT
v.
TIMOTHY ANDERSON JORDAN APPELLEE

         APPEAL FROM THE OUACHITA COUNTY CIRCUIT COURT [NO. 52DR-04-457] HONORABLE EDWIN KEATON, JUDGE

         AFFIRMED

          Ronald L. Griggs, for appellant.

          Tripcony, May & Associates, by: James L. Tripcony, for appellee.

          DAVID M. GLOVER, Judge

         Cynthia and Timothy Jordan were divorced by "Agreed Divorce Decree" entered on June 17, 2005. In April 2015, Cynthia filed a petition for modification of the divorce decree, asking that Timothy's payment of alimony to her be extended beyond the age designated in their decree (62 1/2) and made permanent. On May 26, 2015, Timothy filed a motion to dismiss the petition, contending that the court was without jurisdiction to modify the alimony provision because it was agreed on by the parties as part of an independent contract that was announced in open court and incorporated into the divorce decree. Following a hearing on the motion, the trial court granted the motion to dismiss by order entered on January 11, 2016. On January 29, 2016, Cynthia filed her notice of appeal. We affirm.

         As her sole point of appeal, Cynthia contends the trial court erroneously interpreted the divorce decree in this case when it ruled the award of alimony could not be modified. She subdivides this point into two subpoints: 1) "the circuit court had no proper basis for utilizing a docket entry to supplement or vary the findings and orders contained in a properly entered decree of divorce"; and 2) "the mere fact that the parties announced to the court they had reached an agreement on what the court should include in the decree is not tantamount to a separate, enforceable 'property-settlement agreement' under Arkansas law." We find no error.

         The "Agreed Decree of Divorce" provides in part,

Property Settlement Agreement: . . . .
8. Further based upon the agreement announced in open court, the plaintiff is ordered to pay permanent alimony to the defendant in the amount of $1, 500.00 weekly commencing Friday, May 6, 2005. The first payment shall be reduced by defendant's weekly paycheck. The alimony shall be paid each and every week and shall terminate upon the happening of the first of any of the following events: (1) the death of either party, (2) the defendant, Cynthia Ingram Jordan, reaching the age of 62 and ½ years, or (3) the remarriage of the said defendant or the act of the said defendant cohabiting in the marital residence with a member of the opposite sex. The parties agree that said alimony is deductible on behalf of the plaintiff/payer and taxable to the defendant/recipient, and that both parties will report the said alimony payments as such in filing their individual income tax returns beginning with the tax year 2005 and continuing until the alimony is terminated under the terms mentioned hereinabove or by subsequent Order of this Court. In the event plaintiff misses any alimony payments or is delinquent in excess of thirty (30) days, then defendant may require that all future payments be made through the Circuit Clerk.

(Emphasis added.) The trial court's docket entry provides in part,

5/3/2005 FINAL HEARING - P/f appears w/ atty, Tim Womack. Def appears w/ atty, T. Wineland. Parties reach agreement on certain issues and read same into record. No minor child at time of divorce. Testimony taken of parties and p/f's witness, Mary E. Frey. P/f is granted an absolute divorce on general indignities. Parties agreement re property and debt is approved and is adopted as the order of the Court. Each party acknowledges on the record their acceptance to the agreement as announced today. Mr. Womack will prepare precedent.

          At the hearing on Cynthia's motion to modify, she took the position that the alimony provision in the "Agreed Divorce Decree" was subject to modification because it was not part of an independent contract signed by the parties but rather a mere stipulation agreed upon by the parties and merged into the decree. Timothy, on the other hand, contended that the parties' property-settlement agreement was a separate and independent contract between them that was incorporated into the decree but retained its independent, contractual nature and was not subject to modification. In its order granting Timothy's motion to dismiss, the trial court noted that the decree contained a section labeled "Property Settlement Agreement, " and that the terms of the agreement were set forth in paragraphs four through thirteen of the decree. The alimony provisions of paragraph eight were thus only a portion of the overall agreement. The trial court further explained in its order granting the dismissal,

The Property Settlement Agreement completely addresses all of the rights and liabilities of the parties. The settlement agreement was announced in Court and each party indicated that they understood and accepted the agreement as announced. The attorneys' statements of the parties' agreement on alimony, in announcing the same to the Court, was not a means of dispensing with proof on the alimony issue, but instead was ...

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