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Hargis v. Hargis

Court of Appeals of Arkansas, Division III

October 3, 2018

LYNN B. HARGIS APPELLANT
v.
ALLEN HARGIS APPELLEE

          APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26DR-07-621] HONORABLE THOMAS LYNN WILLIAMS, JUDGE.

          Tripcony, May & Associates, by: James L. Tripcony, for appellant.

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

          N. MARK KLAPPENBACH, JUDGE.

         This 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.

         We 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.

         Allen 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.

         Both parties and each of their attorneys signed the agreement.

         In 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.

         In 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.

         In 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.

         A 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.

         Allen 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.

         Mark 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.[1] 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 ...


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