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Moody v. Moody

Court of Appeals of Arkansas, Division III

November 1, 2017



          Wright Law Firm, by: Victor D. "Trey" Wright III, for appellant.

          Judson C. Kidd, for appellee.

          WAYMOND M. BROWN, Judge.

         Appellant appeals from the circuit court's February 25, 2016 order disposing of the parties' multiple contempt motions. On appeal, she argues that (1) appellee should be responsible for the real-estate taxes on the marital home he received in the property-settlement agreement, (2) the circuit court's flatware ruling was reversible error, (3) the circuit court erred in splitting the lion statues, (4) appellant is entitled to the full value of the Kubota tractor, (5) the circuit court erred in ruling on her contempt motion relating to appellee's parental neglect without taking testimony, and (6) the circuit court erred by denying her motion for contempt for appellee's "harassing and annoying filings." We affirm in part and reverse in part.

         The parties were divorced pursuant to a divorce decree entered on January 8, 2015. It was stated in the decree that the parties reached a "settlement compromise of all property rights and debt liabilities existing between them, which agreement the Court [found] to be fair, reasonable and equitable." The agreement was "incorporated [therein] by reference."

         Appellee filed the first motion for contempt on March 20, 2015. He stated therein that the parties had met and divided the property by agreement and put the agreement in writing, but that a number of items of personal property were removed from the marital home when appellant vacated the premises. Of import to this appeal were two missing Railroad Baron side tables; appellee's mother's silver, which he inherited; appellee's half of the china; appellee's half of the silver-plated flatware; and two cast-stone lion statues, which had been in front of the marital home.

         Appellant responded on March 26, 2015, denying all of appellee's allegations and filing a counter-petition for contempt. She sought a contempt citation against appellee for allowing their minor child, on March 17, 2015, to "sit unrestrained and unattended, on the rear of his convertible while [appellee] drove the vehicle in the St. Patrick's Day Parade in Little Rock, placing the child in danger and against the best interest in the child." She also alleged that during a spring break visitation in Nassau, Bahamas, "the child became lost after [appellee] placed the child, unattended, in a 'lazy river, ' causing the water park staff to search nearly half an hour for the [appellee's] whereabouts before locating him, again placing the child in danger and against the best interest of the child."[1] She also sought a contempt citation based on appellee's refusal to surrender an "expensive oriental rug, "[2] which she valued at $3, 800.00, and a Kubota tractor, which "had been in continual use since its purchase in 2011 as a lawn tractor" and which she stated was designated to go with her, though she stated that it was "not part of the property specifically identified by the Decree."

         Appellee responded to appellant's counter-petition on April 8, 2015, averring that while the minor child was allowed to ride on his vehicle in the parade, it was "at a walking pace, [and the child] was properly supervised by her father and Little Rock Police, along with 60 to 70 other vehicle participants." He also averred that "the minor child was allowed to ride the 'lazy river' ride in the Bahamas in an inner tube in approximately 3 feet deep water and was properly supervised and in his view at all times, along with lifeguards [.]" Regarding the tractor, he asserted that "his farm, Moody Family Farm, LLC, purchased the Kubota tractor in May 2011 with funds from [appellee's] mother and [appellant] has no interest" as the parties agreed that Moody Family Farm, LLC is a non-marital asset. He asserted that appellant gave him the oriental rug. Where else pertinent, appellee denied the allegations in appellant's counterpetition for contempt.

         Appellee filed an amended motion for contempt on November 16, 2015, asserting that contrary to the divorce decree and settlement agreement, appellant had failed to pay the real-property taxes as ordered. Appellant filed a motion for contempt on December 18, 2015, asserting that appellee "through his counsel, continue[d] to make unreasonable demands that serve no legitimate purpose and [were] done in an effort to drive up legal fees and to harass and annoy the [appellant, ]" in violation of the circuit court's April 1, 2011 restraining order enjoining and restraining each party from "harassing the adverse party [.]"[3]Appellee responded on January 13, 2016, denying her allegation.[4]

         A hearing on the outstanding motions was held on February 18, 2016. Adrienne Griffis, an attorney from appellee's counsel's firm, testified to accompanying appellee and his decorator to inventory the home in December 2014. She saw "pieces of silverware packed away in storage" in a closet. They opened the storage and looked at the silverware, which was Boulenger, using the "flashlight setting" from appellee's cell phone. She saw appellee attempt to take a picture of the silver flatware with his phone; he "said it didn't come out." No other pictures were taken, but she prepared an inventory that originated from appellant's list, onto which they added. She noted premarital property in the inventory based on the parties' assertions of the same.

         Cindi Hall, the parties' interior designer, testified to assisting in inventorying the parties' property in December 2014. She saw the "silver pieces in the marital home" in a closet in the back hallway. She thought Griffis tried to take a picture, but she knew Griffis took the silverware out and got the name and pattern. It was in a container and looked like a twelve-piece setting. She found the two Railroad Baron side tables in the garage. Appellee received four place settings of the bone Lenox China, though he was supposed to receive six. The two cast stone lion statues were in front of the house when they did the inventory, but were gone after appellant vacated the premises. She testified that there were "pictures of everything" except the Railroad Baron side tables. "Nowhere on the list" did it say that appellee was to get the lion statues.[5]

         Appellee testified that the June 11, 2013 order made appellant responsible for the property taxes on the residence from January 13, 2013, until further ordered and that the decree made appellant responsible for utilities "and other expenses associated with the marital residence as previously ordered by this Court until she vacates the marital home." He understood that to include real-estate taxes. He was awarded "any outstanding indebtedness on the residence inclusive of taxes and insurance" and that is why he "specifically added" language to the decree that appellant "would be responsible for what she was due" under the previous temporary order.[6] He assumed he was responsible for any taxes due and owing "going forward" from when appellant vacated the home. He agreed to pay appellant $27, 500 per month in child support while appellant was in the home, and the real-estate taxes were to be covered by appellant as part of that arrangement.

         Appellee believed that the two Railroad Baron side tables found in the garage were smaller and not the same side tables that had been in the master bedroom, which he asserted had doors on the front to store things, unlike the two side tables found in the garage. He pulled down some boxes out of a closet in the home and gave them to Griffis and Hall. The silverware was in there. He asserted that "it was obvious that it had been hidden because it was the only box that was there that had anything in it." Griffis and Hall counted the silver. He attempted to take a picture but it was too dark. They discussed the silver after appellant vacated the home; appellee could not find it. Appellant told him it was either in the secretary or the dresser in the living room; it was not in either piece of furniture. There was no more discussion about the silver. He had no receipts for the silver he alleged was purchased during the marriage; several were wedding gifts and "others [appellant] bought to complete the set."

         Appellee said that appellant took pictures of everything for homeowner-insurance purposes. There were two cast stone lion statues on the front porch that were not mentioned on the inventory list because he "expected them to stay with the home"; "[a]nything that wasn't on the list was supposed to stay at the house." He admitted that the divorce decree "does not say anything not on the list is supposed to stay at the house"; he averred that it was an unwritten agreement between the parties.

         Appellant testified that she had not paid the taxes on the house due for 2014 and had not paid any portion of the taxes for 2015. She did not think she was responsible for the 2014 and 2015 real-estate taxes "because there were two areas of the decree that state that it was [appellee's] responsibility." However, she admitted that the court had previously ordered her to pay the real-estate taxes and that "she was not getting the $27, 500 a month just to pay the real estate tax" but "for child support."

         She testified that she "made the first draft of the property list [herself]"; she denied listing the Boulenger silver on her original list. She asserted that the silver "did not exist" as the parties "never had any good silverware." She denied that there were other Railroad Baron tables.[7] She noted that she took the bed linens that went with the beds; they had not "put it in writing but [they] agreed in the property division that the linens that went with the beds would go with the beds." She stated that she did take the two cast stone lions, but averred that they agreed she would take the lions and the patio umbrellas in exchange for not having to divide up the "extensive" list of patio furniture. She testified that the Kubota tractor was purchased during the marriage with an American Express card held by the parties-not with inheritance money of Moody Farms-and that she helped pick it out. It was to be used at the marital residence, which was eight acres in size, by a groundskeeper they had hired a month prior to the purchase. She wanted the value of the tractor, which she believed was valued at $17, 000; it was purchased for $17, 160.

         The circuit court entered an order on February 25, 2016, making the following findings:

a. Boulenger stainless silver flatware. The Plaintiff claims that the silverware never existed and that they had no silver flatware. The Defendant claims that they purchased the flatware during the marriage. Ms. Cindy Hall, the interior decorator, said that she saw the flatware in a box in a closet when the parties were dividing the assets. She then testified that after the Plaintiff had vacated the premises and removed her property, that there was no Boulenger silver flatware left at the home.
b. The Court concludes that Ms. Hall is a credible witness and has no vested interest in this case. The Court finds that either the Plaintiff removed the flatware or it was lost while in her control. The Court orders that Plaintiff reimburse the Defendant the sum of $8, 050.00 forthwith representing one-half of the value placed on the flatware; or if the flatware is located in her possession, in lieu of payment, that she may return one-half to the Defendant. Neither Plaintiffs Exhibit 6 nor Defendant's Exhibit 1 divided the flatware.
. . . .
f. Lenox China. Originally, the parties had a 12-place setting. The [Plaintiff] took eight of the sets leaving the Defendant four. The Plaintiff is to return two place settings of bone Lenox China to the Defendant forthwith.
g. Kubota tractor. This property was not mentioned in the Divorce Decree nor in the list of property to be divided. The Kubota tractor will remain with the Defendant at the marital home as it was purchased for the marital home. Further, paragraph 16(B)6 states that all personal property currently in his possession shall become his sole and separate property. Therefore, the Plaintiffs claim fails.
h. Lions. These items were not listed on the property lists. The parties will each receive one lion statue. The Defendant will be responsible of having one of the lions delivered to him at his expense. The Defendant can select the lion he wants.

         While noting that appellant had filed a motion for contempt involving an Oriental rug, the circuit court did not address the matter, stating that "the rug was never discussed" in the hearing. Regarding the taxes owed on the home, the circuit court stated:

23. There appears to be a conflict within the Divorce Decree, but the Decree specifically states in paragraph 16(B)(1) that the Plaintiff was given until February 1, 2015 to vacate the residence. The Decree made a specific reference to the previous Orders of the Court that the Plaintiff be responsible for the utilities and other expenses associated with the marital residence until she vacates the marital home.
24. The Court concludes that the parties negotiated a settlement whereby the Plaintiff would be responsible for the cost of the marital home while she remained living there. The parties specifically referenced the earlier Orders whereby the Plaintiff was responsible for real estate taxes as long as she received the $27, 500.00 per month support. The Court finds that the Plaintiff is responsible for the payment of the 2014 real estate taxes in the amount of $13, 059.20 and one month of the 2015 real estate taxes which is $1, 088.26 for a total ...

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