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Chism v. Chism

Court of Appeals of Arkansas, Division IV

May 16, 2018

EVELYN CHISM AND JAMES GREGORY CHISM, APPELLANTS/CROSS-APPELLEES
v.
JAMES R. CHISM, APPELLEE/CROSS-APPELLANT

          APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT [NO. 15DR-14-108] HONORABLE DAVID H. MCCORMICK, JUDGE.

          Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellant Evelyn Chism.

          Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant James Gregory Chism.

          Branscum Law Offices, by: Herby Branscum, Jr., and Elizabeth Branscum Burgess, for appellee.

          ROBERT J. GLADWIN, Judge.

         This appeal of a divorce decree returns after we originally dismissed the case for lack of a final order.[1] Evelyn Chism appeals the judgment in favor of her ex-husband, James R. Chism (Jim), in the amount of $118, 721.40. Jim cross-appeals from the circuit court's decision declining to set aside certain deeds Evelyn allegedly obtained through undue influence over him. The parties' adult son, James Gregory Chism (Greg), appeals from that part of the decree awarding his parents money judgments for a loan for the purchase of a vehicle and the purchase of a home and real property. We reverse the decree awarding Jim one-half of Evelyn's income; affirm the circuit court's refusal to set aside the conveyances; affirm the judgment against Greg for the money he borrowed to the purchase the vehicle; and reverse the decree as to Greg's oral agreement to purchase a house and five acres.

         This was the second time Evelyn and Jim had married each other. Their first marriage ended in divorce in 1987. They remarried in 1993. The parties separated in early January 2014, and Evelyn filed her complaint for divorce on January 23, 2014. Evelyn amended her complaint to seek an unequal division of the parties' property. Jim answered. He filed a counterclaim, claiming that Evelyn had kept all the money she had earned from her employment and her retirement benefits, which he asserted was marital property separate from that of the parties' joint accounts, and he asked for an accounting. He sought to set aside two conveyances-a warranty deed and a mineral deed-made on June 12, 2012, on the basis that Evelyn exerted undue influence over him. Jim filed a third-party complaint against the couple's two children, Greg and Dena Lynn Smith, asking the court to set aside the June 12, 2012 conveyances in which the children had interests.

         A trial was held over two days in July and August 2015. In October 2015, the circuit court entered its letter opinion deciding the case. After the court ruled that the pleadings would be amended to conform to the proof, the court granted Evelyn a divorce and distributed certain real property to Jim and Evelyn as his and her separate property. The court ordered all marital property, real and personal, with the exception of a marital mineral interest, sold and the proceeds divided equally. The court found that any earnings and retirement benefits Evelyn had earned from her employment with the United States Postal Service (USPS) were marital property and awarded Jim half of those benefits, as well as any retirement benefits Evelyn had drawn during the pendency of the divorce. The court awarded Evelyn and Jim a judgment against Greg for $97, 500 based on an oral agreement to buy five unspecified acres and a house from Jim and Evelyn. Evelyn and Jim were each awarded one-half of that amount. The court further entered judgment against Greg in favor of Evelyn and Jim for money used to pay a truck loan, with Evelyn and Jim each awarded approximately $11, 500. The court further found that Evelyn, Jim, and Greg were tenants in common of a reservation of the mineral interests in which the surface interest was conveyed to the daughter, Dena. The court also found that Evelyn, Jim, and Greg were tenants in common of a reservation of the mineral interests in which the surface interest was conveyed to Evelyn and Greg as joint tenants with right of survivorship. Other tracts were found to be marital property, with Evelyn and Jim reduced to tenants in common, and the court ordered the property sold. On Jim's counterclaim seeking to set aside certain conveyances on the ground that Evelyn exercised undue influence over him, the court found that Jim failed to show that Evelyn had occupied a position of dominance over him and refused to set aside the conveyances.

         The court found that Evelyn's earnings and retirement benefits from the USPS were marital property, that she had kept the money in a separate account in her separate name, and that she failed to account for this money. Jim was awarded a judgment for approximately $118, 000, representing one-half of the sums she had earned.

         After some revision and correspondence between the court and counsel, the circuit court entered its decree on December 17, 2015. The court also entered an agreed order staying enforcement of the money judgment against Evelyn until the appeal could be decided. The court also entered a qualified domestic relations order to effectuate the division of Evelyn's retirement benefits.

         We dismissed the appeal from those orders on June 8, 2016, for lack of a final order. Chism I, supra. On remand, the circuit court entered an order that included a Rule 54(b) certificate to resolve the finality issues that were raised in Chism I. See Ark. R. Civ. P. 54(b). This order granted judgments in favor of Jim for his payment of marital expenses such as mortgage, utility payments, taxes, insurance, and the like. It also provided that Jim was entitled to one-half of Evelyn's gross monthly retirement benefits and that he would have judgment for that amount through the sale of the parties' property. Later, the circuit court entered an order disposing of Jim's third-party complaint attempting to set aside the conveyances of a surface interest to Greg in a further effort to resolve any potential finality issues. The court ruled that the claim would be denied for the reasons stated in the original decree. The order also included a Rule 54(b) certificate. All three parties appeal.

         I. Standard of Review

         We review traditional cases of equity, such as domestic-relations proceedings, de novo. Hurtt v. Hurtt, 93 Ark.App. 37, 216 S.W.3d 604 (2005). Likewise, we review a circuit court's decision to grant or deny a petition to set aside a deed de novo, but we will not reverse unless the court's findings are clearly erroneous. Lyons v. Lyons, 13 Ark.App. 63, 679 S.W.2d 811 (1984). We defer to the superior position of the circuit court to evaluate the witnesses and their credibility. Id.

         II. Argum ...


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