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Elder v. Elder

Court of Appeals of Arkansas, Division IV

May 2, 2018

CHRISTOPHER LYNN ELDER APPELLANT
v.
KERRI JUNE ELDER APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, THIRTEENTH DIVISION [NO. 60DR-14-1084] HONORABLE W. MICHAEL REIF, JUDGE

          Everett Law Firm, by: John C. Everett; and Smith, Cohen & Horan, PLC, by: Matthew T. Horan, for appellant.

          Mann & Kemp, PLLC, by: Angela Mann, for appellee.

          ROBERT J. GLADWIN, Judge

         Appellant Chris Elder appeals the June 20, 2017 order of the Pulaski County Circuit Court arguing that the trial court erred in holding him in contempt and in its award of attorney's fees. Appellee Kerri Elder cross-appeals arguing that the trial court improperly found that her right of first refusal had expired with respect to the sale of the five lots. We reverse on direct appeal and affirm on cross-appeal.

         I. Facts

         Chris and Kerri divorced pursuant to a final order entered on October 14, 2015. At the time of divorce, the parties were real estate investors in Northwest Arkansas with a marital estate that included several million dollars' worth of income-producing property, most of which they handled by incorporating into the divorce decree a settlement agreement that divided the real properties they owned. Paragraph 11 of the order provided that each would have

the right of first refusal if the other elects to sell . . . any of the properties awarded to them herein. . . . Failure to give notice of a party's election to exercise this first option within 10 days of being notified of the proposed sale shall be deemed a waiver of such a right.

         The parties negotiated this right of first refusal because they each owned income-producing property in the same subdivisions; accordingly, each had an interest in acquiring the properties awarded to the other.

         It is undisputed that the right-of-first-refusal language in the order was "short on detail" and provided neither the content of the notice to be sent when properties were to be sold nor the contents of any notice by the optionee to indicate a desire to exercise the right of first refusal. It simply provided that the failure to elect within ten days operated as a waiver of the right.

         Chris planned to sell several of the parcels of real property awarded to him in the divorce. On February 7, 2017, he sent notice to Kerri in the form of a text stating that he was going to sell eight Stonegate duplexes for $215, 000 and triplexes for $315, 000. He indicated that he was sure she was not interested in buying, but that he was letting her know. In response, Kerri said she would like "to discuss the duplexes, " but her response dealt primarily with a promissory note she held on which Chris was obligor.

         Chris replied on February 13, 2017, that he had been informed by his attorney that Kerri might be interested in exercising her right to purchase the duplexes and that "if so, I need to know right away." Kerri sent no additional communication regarding the duplexes within ten days of that message from Chris because she was waiting for him to send her copies of the contracts he had obtained on those properties.

         On March 25, 2017, Chris's assistant emailed to Kerri offers and acceptances regarding five additional lots that showed addresses and prices but redacted the buyers names and signatures. Kerri did not declare within ten days of the email that she wanted to buy any of these properties. Certain of these contracts were set to close on May 5, 2017.

         On April 13, 2017, Chris sent Kerri full copies of the deeds of the eight lots he had under contract in February. Kerri again did not notify Chris within ten days ...


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