LYNN B. HARGIS APPELLANT
ALLEN HARGIS APPELLEE
FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26DR-07-621]
HONORABLE THOMAS LYNN WILLIAMS, JUDGE.
Tripcony, May & Associates, by: James L. Tripcony, for
& Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha
C. Taylor, for appellee.
MARK KLAPPENBACH, JUDGE.
appeal primarily concerns the division of a
military-retirement account following a divorce. Appellant
Lynn B. Hargis and appellee Allen Hargis entered into a
property-settlement agreement that was approved and
incorporated into their May 28, 2009 divorce decree. When
Allen retired in 2014, the parties could not agree on the
meaning of the settlement agreement provision that entitled
Lynn to 50% of Allen's military-retirement account, as of
the date of the divorce. Following a hearing on the matter,
the Garland County Circuit Court entered an order on February
23, 2017, finding the provision unambiguous, ruling in favor
of Allen on this issue, and finding Allen entitled to
attorney fees and costs for which he could submit a petition.
Lynn appeals, arguing that the trial court clearly erred (1)
by finding the settlement provision unambiguous and
construing it as it did; and (2) in finding Allen entitled to
attorney fees and costs. We affirm.
review domestic-relations cases de novo, but we will not
reverse a circuit court's finding of fact unless it is
clearly erroneous. Hunter v. Haunert, 101 Ark.App.
93, 270 S.W.3d 339 (2007). A finding is clearly erroneous
when, although there is evidence to support it, the reviewing
court is left with a definite and firm conviction that the
circuit court has made a mistake. Id. A court may
not modify an independent contract that is made part of a
divorce decree. See Artman v. Hoy, 370 Ark. 131, 257
S.W.3d 864 (2007). Questions relating to the construction,
operation, and effect of independent property-settlement
agreements are governed, in general, by the rules and
provisions that apply to other contracts generally.
Surratt v. Surratt, 85 Ark.App. 267, 148 S.W.3d 761
(2004). When contracting parties express their intention in a
written instrument in clear and unambiguous language, it is
the court's duty to construe the writing in accordance
with the plain meaning of the language employed. Darcey
v. Matthews, 2017 Ark.App. 692, 537 S.W.3d 780;
Fallin v. Fallin, 2016 Ark.App. 179, 492 S.W.3d 525.
When a contract is unambiguous, its construction is a
question of law for the court, and the intent of the parties
is not relevant. Moody v. Moody, 2017 Ark.App. 582,
533 S.W.3d 152.
and Lynn divorced in May 2009 after twenty-seven years of
marriage. The parties' property-settlement agreement
contains the following provisions relevant to our
consideration of this appeal.
9. The Wife shall receive as her sole and separate property
her state retirement account and her Haliburton stock . . . .
The parties shall each receive their individual financial
accounts in their respective names as their sole and separate
property and shall divide equally all joint accounts of the
parties, except as stated hereinabove.
10. The Wife shall receive 50% of Husband's military
retirement account, as of the date of the divorce.
Husband's attorney shall prepare a Qualified Domestic
Relations Order to divide said retirement account. Further,
Husband shall sign any documents necessary to effect the
division of the account specified herein.
14. The Husband shall keep in full force and effect a policy
of health and major medical insurance for the Wife until such
time as she is eligible to receive health insurance through
her employer, or for a maximum of three (3) years. When the
Wife is eligible for ins[urance] coverage through her
employer, if the Wife is required to pay a premium for
coverage, the Husband shall pay the premium for a maximum of
three (3) years from the date of this agreement. The Husband
shall further provide the Wife an identification card, and
provide verification that insurance coverage is in effect.
17. The parties each hereby acknowledge that they have been
represented by counsel in this matter and that they have each
been advised that this agreement, upon approval by the court,
will constitute a final agreement of the parties which cannot
be reviewed, amended or changed by either party. This result
is intended by both parties, so that this matter cannot be
subsequently changed by the other. The parties further
acknowledge that they are aware of, and have been advised of
the Arkansas law with respect to division of property,
spousal support (alimony) and other issues related to the
property of the parties. The parties each acknowledge that in
the event this matter were decided by this court, they may
receive more, or less than what is provided under this
agreement. The parties notwithstanding accept the terms of
this agreement and voluntarily waive their right to have
these matters decided by this court.
21. The parties have read and understand the terms and
conditions of this Agreement, having consulted with Counsel,
and they have executed same as their free and voluntary act.
parties and each of their attorneys signed the agreement.
anticipation of his retirement in April 2014, Allen presented
Lynn a "Military Retirement Pay Division Order"
(MRPDO) in December 2013. Lynn advised Allen in March 2014
that she would not sign the proposed order because it did not
provide her a full 50% of his anticipated monthly retirement
benefit. When Allen began to draw his retirement pay, he
commenced paying Lynn her half, valued as of the date of the
divorce and not including the additional portion earned in
the five years after the divorce.
October 2014, Allen filed a Motion to Enforce Property
Settlement Agreement, asserting that he was paying Lynn her
half of his retirement in accordance with their property
settlement agreement but that Lynn would not sign the order
effecting the division. His motion asked that the trial court
approve and enter his proposed MRPDO and that he be awarded
his attorney fees and costs for having to file this motion.
Lynn filed a response in October 2014 generally denying
Allen's allegations but asking for the entry of an order
that granted her the benefits to which she was entitled.
August 2015, Lynn filed an Amended Counter Motion in which
she reiterated her desire for a "military qualifying
court order." Lynn also requested that she be reimbursed
by Allen for her payment of $7, 476 in health-insurance
premiums she incurred between May 2009 and May 2012, as
provided in paragraph 14 of their settlement agreement. Allen
responded to Lynn's filing by reiterating his request for
approval of the MRPDO and stating that Lynn had never
notified him that she was paying any health insurance
premiums, that she had never made a demand for those premium
reimbursements until now, and that she had not provided any
documentation to support that claim.
hearing was conducted in November 2016. Allen's position
was that their property settlement was clear and unambiguous
and entitled Lynn to half of his military retirement account,
"as of the date of the divorce." Allen contended
that this meant Lynn was to receive her half of that amount
that accrued during the marriage and not what had accrued
after the divorce was final. Lynn contended that the
provision was ambiguous and that she thought it meant that
she was entitled to half of the entirety of Allen's
military retirement, whenever he began to draw it.
testified that he became a member of the Arkansas Army
National Guard early in their marriage and that he served
five additional years after their divorce was final. Allen
also testified that he had a thrift savings plan through the
military. Allen testified that this savings plan was not part
of his retirement but was a savings account. Allen hired Mark
Sullivan, an expert in military-retirement benefits and a
lawyer, to calculate what Lynn was entitled to, and Allen
remitted that amount to her on a monthly basis.
Sullivan, the aforementioned expert, testified that he is an
attorney licensed in Ohio and North Carolina since the 1970s,
a retired Army Reserve JAG Colonel, and a board-certified
family lawyer since 1989. Mr. Sullivan is the author of a book on
military divorce covering military retirement and pensions.
Mr. Sullivan calculated what Lynn's 50% share was,
considering that they agreed her half was to be determined
"as of the date of the divorce." He testified that
"it's clear that what we're doing is talking
about the monthly paycheck an individual receives[.]"
Mr. Sullivan stated that if Lynn was to receive half of the
entirety of Allen's military retirement, then the
settlement provision would not have included the qualifying
words "as of the date of the divorce." He
testified, "If you add the modifier, as of the date of
the divorce, those words have to have meaning and that means
with the snapshot on the date of the divorce." He
explained his method of calculation, including cost-of-living
increases since 2009, to be ...