FROM THE PULASKI COUNTY CIRCUIT COURT, THIRD DIVISION NO.
60CR-16-4435] HONORABLE CATHLEEN V. COMPTON, JUDGE
M. Maulding, Attorney at Law/CPA, by: Diana M. Maulding, for
LARRYD. VAUGHT, JUDGE
Jose Garcia ("Jose") appeals the divorce decree
entered by the Pulaski County Circuit Court and its
deemed-denial of his subsequent posttrial motions. We reverse
and appellee, Maria Garcia, were married for thirteen years.
The couple have two minor children together, X.G. (born in
2003) and B.G. (born in 2005). In October 2016, Maria locked
Jose out of the marital home and subsequently filed for
absolute divorce. Jose was served, and he entered a timely
answer. Jose also filed a counterclaim for divorce and a
motion for contempt against Maria. In his motion, he alleged
that on September 26, 2016, Maria fraudulently induced Jose
(who does not speak or read English and relied on Maria to
translate) to sign an agreement for monetary support based on
Maria's false representations that the document dealt
only with Jose's contributions toward household expenses
while he resided at the marital home. Jose also claimed that
Maria had sold, destroyed, or withheld items of his personal
property and that she failed to disclose her Arkansas Teacher
Retirement pension plan.
trial on June 8, 2017, Maria waived corroboration of grounds
for divorce, and Jose waived all rights to visitation with
his children. When the agreement for monetary support came
up, the court clearly stated that it was not going to enforce
an agreement that was entered into before either party had an
attorney and was written in a language that one party did not
understand. Maria repudiated the agreement in open court.
Jose's attorney asked that the repudiation be put in the
language of the divorce decree so that it may be filed with
the clerk's office, to which the court agreed.
Maria's pension, Jose testified that he should receive
the "marital fraction, " "the portion of Ms.
Garcia's pension that corresponds to the time we were
married." Maria testified that, although she is not a
contributor to the pension plan, she is vested and will
receive "something" from the district after she
retires. She testified that "I know I'm vested"
and "I was vested after three . . . years of working at
the school district."
court issued its decree on June 21, 2017, in which it granted
Jose an absolute divorce and granted sole custody of the
children to Maria. It ordered Jose to pay $346 biweekly in
child support and $100 per pay period in spousal support,
both effectuated through wage assignment. The court awarded
Maria the couple's home and mortgage and awarded Jose
title to the Nissan and Honda vehicles. The court found that
neither party could afford the couple's 2016 Chevrolet
Traverse and ordered that it be immediately sold or returned
to the dealership. The parties were ordered to evenly split
the debt remaining on the truck after the sale, with Maria
getting credit for the monthly payments she had made on the
vehicle. The court awarded Jose "the marital fraction,
if any there be, of Ms. Garcia's pension with the Little
Rock School District."
court denied Jose's motion for contempt of court. The
order did not address Maria's alleged disposal,
destruction, or withholding of certain personal property and
did not allocate or award that property to either party. As
to the monetary agreement, the court found that the issue was
moot as Maria had repudiated the agreement in open court. The
decree stated that the monetary agreement is not to be
enforced, and the court directed Jose to file the decree
"wherever need be to protect against any future claim
Ms. Garcia might attempt to make to enforce the
agreement." The court also found that Maria's
original failure to disclose her pension plan did not
constitute contempt because she had mistakenly believed that
she was not a plan participant.
23, 2017, Jose filed a posttrial motion pursuant to Arkansas
Rule of Civil Procedure 52 followed by an amended Rule 52
motion on June 26, 2017, both seeking additional findings and
reconsideration of alimony. Jose then filed a motion,
pursuant to Rules 60(a) and 52(b) of the Arkansas Rules of
Civil Procedure and Arkansas Code Annotated section
9-12-320(a)(1), asking the court to set a specified
percentage of Maria's pension to which Jose is entitled.
Jose stated that the motion was made pursuant to a request
from the Arkansas Teacher Retirement System. Jose filed an
amended motion, specifically seeking fifty percent of the
pension. Maria never filed responses to Jose's posttrial
motions, and the court never ruled on them. These motions
were deemed denied pursuant to Rule 4(b)(1) of the Arkansas
Rules of Appellate Procedure-Civil. Jose filed a notice of
appeal on August 19, 2017, and an amended notice on August
26, 2017, after he discovered that Maria had remarried.
first point on appeal is that the court erred in finding that
he was entitled to "the marital fraction, if any there
be" of Maria's pension and erred in denying his
posttrial motions to clarify the pension award. He argues
that the undisputed evidence was that Maria was vested in her
Little Rock School District pension plan and that she and
Jose had been married in 2003, before she began working for
the district. He notes that the Arkansas Teacher Retirement
System (ATRS) directed Jose to seek clarification from the
circuit court on the pension issue because it could not
implement the court's order as written. Based on our
supreme court's precedent in Addis v. Addis, 288
Ark. 205, 207, 703 S.W.2d 852, 854 (1986), Jose argues that
he is entitled to an award of fifty percent of the pension
accrued during the marriage (or stated differently, fifty
percent of the pension as of the date of the divorce decree).
cites numerous cases for the position that he is entitled to
a share of Maria's pension, but there does not appear to
be any dispute as to that point. The real issue is whether
the circuit court erred in failing to specifically find that
(1) Maria had a vested pension that was part of the property
to be divided in the divorce decree, and (2) Jose was
entitled to fifty percent of the pension. As to the first
issue, we agree with Jose that it was reversible error for
the court to fail to make an unequivocal finding that Maria
had a vested interest in her pension plan based on the
undisputed evidence presented at trial. To the extent that
this is a finding at all, it is clearly erroneous.
the second issue, the court's failure to specifically
designate the amount or percentage of the pension awarded to
Jose, we reverse based on Arkansas Code ...