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Chambers v. Chambers

Court of Appeals of Arkansas, Division III

September 6, 2017



          Brian K. Mueller, for appellant.

          The Streett Law Firm, P.A., by: James A. Streett and Robert M. Veach, for appellee.


          KENNETH S. HIXSON, Judge

         Appellant Allan Dewayne Chambers (Allan) appeals from an August 2, 2016 divorce decree filed by the Yell County Circuit Court in favor of appellee Amy Michelle Chambers (Amy). On appeal, Allan contends that (1) the circuit court erred when it determined that the award of temporary alimony could not be modified because of his change in employment circumstances, (2) the circuit court's division of what little marital property the parties owned was disproportionate and not supported by the evidence in the record, and (3) the circuit court's award of attorney's fees to Amy was an abuse of discretion and should either be set aside completely or reduced. We reverse and remand.

         I. Facts

         The parties were married on October 10, 2010, and separated on or about June 30, 2015. No children were born of the marriage, and during their marriage, Allan was the primary income earner. Amy filed a complaint and subsequently a first amended complaint for divorce, and Allan filed answers to the complaints and a counterclaim. In her amended complaint, Amy requested temporary and permanent alimony, an unequal distribution of marital property, and that the court set a hearing for temporary relief pending the final decree. The request for temporary relief included, but was not limited to, temporary support, temporary possession of the "property currently in her possession, " and a temporary allocation of marital debts and responsibilities.

         A hearing on the temporary matters was held on September 1, 2015. After Amy testified, the court took a recess. During the recess, counsel for the parties conferred and reached a settlement agreement on the temporary issues. When court was called back into session, Amy's counsel advised the circuit court that the parties had reached an agreement. Counsel explained that the parties had agreed on an amount of $700 per month for temporary spousal support and announced their agreement as to temporary possession of the parties' personal property, temporary possession of the residence, and the temporary allocation of certain marital debts. After a discussion between counsel and the court, the circuit court directed that the spousal support should go through the circuit clerk's registry. The circuit court confirmed that counsel would prepare an order and acknowledged that the determinations were only temporary. Additionally, the circuit court instructed counsel to include other routine language in the order. Finally, the circuit court summarized the discussions as follows: "And we'll approve the temporary division of the other property and debts to go with them. And he'll pay temporary spousal support of $700 per month, and, then get it set or settled."

         An agreed temporary order was filed, which stated the following:

On this 1st day of September, 2015, the Court finds that the parties agree as follows:
1. PROPERTY: Each party shall have temporary, exclusive possession of the personal property currently in their possession. Specifically, the Wife shall have temporary, exclusive possession of the Toyota Tacoma and camper, and the Husband shall have temporary, exclusive possession of the Chevrolet pickup, four wheeler, boat, and zero turn mower. The Husband shall have temporary, exclusive possession of the parties' real property. Neither party shall dispose of or encumber any property which may be considered to be marital property.
2. DEBTS: Neither party shall incur any new debts for which the other party might be held responsible. The Plaintiff shall be responsible for the monthly payment on her Belk, Kohl's, Goodies, and Maurice's credit cards, her student loans, the bill in her name to the Allergy Clinic, the monthly payment on the Toyota Tacoma, her monthly cell phone payment, and shall hold Defendant harmless therefrom. The Defendant shall be responsible for all of the obligations owed on the parties' real property, including, but not limited to, the monthly mortgage in the approximate amount to $564.00, taxes, insurance, and utilities, and the debt on any property he is receiving hereunder, and shall hold Plaintiff harmless therefrom. The Husband shall maintain all existing insurance policies, including, but not limited to, the insurance on the camper, the Chevrolet pickup, and the life insurance through Southern Farm Bureau. The Husband shall forthwith pay all 2013 and 2014 property taxes as the parties acknowledge that the Plaintiff cannot renew her vehicle registration in September of 2015 while these debts are outstanding. Specifically, the past due taxes for 2013 are approximately $558.12, and the taxes for 2014 are approximately $496.18.
3. SPOUSAL SUPPORT: Beginning September 1, 2015, and on or before the first day of each month thereafter, the Defendant shall pay the sum of $700.00 to Plaintiff for temporary spousal support. The Defendant's September 2015 payment in the amount of $700.00 shall be paid directly to Plaintiff, which Plaintiff acknowledges receipt thereof. Beginning in October 2015, and each month thereafter, all spousal support payments shall be paid through the registry of the Yell County Circuit Clerk. . . . Additionally, the Defendant shall pay any processing fees required by the Clerk.
4. INJUNCTION: Each of the parties shall be enjoined from in any manner harassing, molesting or vilifying the other during the pendency of this cause.
5. AFFIDAVIT OF FINANCIAL MEANS: The parties shall exchange an Affidavit of Financial Means within 60 days of the date of which this Agreed Temporary Order is entered.

         Allan paid the $700 spousal-support payment for September. However, Allan failed to make the $700 spousal-support payment due for October, failed to pay the delinquent property taxes as agreed, and removed some personal items from the camper, which was temporarily and exclusively granted to Amy in the agreed order. Accordingly, Amy filed a motion for contempt and for attorney's fees. At the contempt hearing, the circuit court found Allan in contempt for failing to pay his temporary spousal-support payments, failing to pay the 2013 property taxes, and for removing certain items of personal property in violation of the circuit court's previous agreed temporary order. Allan was ordered to pay $1, 400 in back spousal-support payments, $558.12 in property taxes, and $300 for attorney's fees and to return the items he took or report to the Yell County Sheriff's office for incarceration. Allan subsequently made the required payments on November 4, 2015.

         Shortly thereafter, on November 19, 2015, Allan filed a motion to modify the temporary-support order. He sought to reduce his temporary payments because his income had been significantly reduced. He did not seek to modify any of the other temporary agreements in the order. Amy filed a response arguing that the temporary-support agreement was contractual in nature and nonmodifiable, absent an agreement of the parties. She further argued that Allan had not provided any discovery material showing that his income had been reduced and that the motion was barred by unclean hands. In addition to her response to Allan's motion to reduce temporary-support payments, Amy filed a motion for contempt, alleging that Allan had stopped paying temporary-support payments since December 2015. A final hearing on all pending matters and a trial on the merits was held on July 5, 2016.

         At the hearing, Amy testified that she had been primarily a housewife during the marriage and also attended school. She is a sponsored competitive archery shooter. In 2014, she had earned $929 from a competition. Allan had earned $873 from the same competition. After the separation, Amy was employed by Medical Office Systems and earned $10 per hour. She testified that Allan had been employed during their marriage and earned $83, 000 in 2010, $94, 000 in 2011, $72, 000 in 2012, $76, 000 in 2013, $82, 000 in 2014, and $55, 337 in 2015. Amy summarized that Allan owed her $5, 600 in arrearages for failing to pay temporary spousal support.[1]

         Amy testified that Allan owned the marital residence prior to their marriage. However, she testified that she had invested a lot of time in repairing and improving the residence. She claimed that during the marriage, the principal on the debt encumbering the residence was reduced in the amount of $3, 543.85 and that marital money was used to improve the home in the amount of $6, 959.53. She requested that the circuit court consider those amounts in the property distribution. Amy also claimed that the camper that she was living in had been purchased during the marriage and was worth between $12, 000 and $14, 000. Because she could not afford a home, she requested that she be able to keep the camper and suggested that the principal reduction and marital money used to improve Allan's premarital property would offset the value of the camper.

         Additionally, Amy testified that the boat and zero-turn riding lawn mower purchased during the marriage were valued at $3, 500 and $4, 000, respectively. Amy testified that she had learned in discovery that there was a whole-life insurance policy with a cash surrender value of $1, 600 on Allan's life. She acknowledged that Allan's Chevrolet pickup truck was premarital and that her Toyota Tacoma was purchased during the marriage. The Toyota still held a debt of $10, 000.[2] Amy testified that she owed approximately $26, 000 in student loans. She also claimed that her daughter, Casey Brown, had loaned her $6, 800 to pay off credit-card debt that was in her name. She had used the credit cards to purchase items for Allan and herself during the marriage. Amy's daughter also testified at the hearing and confirmed the loan.

         Allan testified that during the marriage, he was employed with Mayo Tool and that he was a supplier for the oil- and gas-drilling industry. He testified that he had been servicing thirty-five wells, but after the recession, he had been servicing only three wells. His income had been reduced accordingly. Allan testified that he ultimately was laid off on December 15, 2015, and applied for unemployment the following week. Allan testified that he had been unemployed and had been collecting $451 in unemployment benefits since January 2016. However, Allan testified that he had been hired by Superior Masonry a week prior to the hearing and was earning $19 per hour. He was expecting to work 40 hours per week. Therefore, Allan requested that the circuit court modify the temporary-support payments that had accrued pending the divorce decree because his income had been significantly reduced as of December 15, 2015.

         On cross-examination, Allan admitted that he had participated in two unsponsored archery competitions, purchased $60 in iTunes items, spent $109.47 at West Side Liquor, paid almost $200 per month for satellite service, and joined an online dating website all during the ...

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