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Hargis v. Hargis

Court of Appeals of Arkansas, Divisions III, IV

October 17, 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.

          BRANDON J. HARRISON, Judge.

         As recited more fully in a companion case to this appeal, Hargis v. Hargis, 2018 Ark.App. 469, the circuit court entered an order in February 2017 and decided a dispute, which Colonel Allen Hargis filed, over how much military-retirement money Lynn Hargis was entitled to receive from the property-settlement agreement the divorcing couple signed in 2009. A separate and subsequent order awarding Col. Hargis $18, 000 in attorney's fees against Ms. Hargis was entered. This appeal addresses the circuit court's decision to make Ms. Hargis pay Col. Hargis's attorney's fees. And the narrow issue presented-as we have framed it-is whether Ms. Hargis was denied a sufficient opportunity under the rules of civil procedure to oppose the fee request before the circuit court decided it. The answer is yes.

         I.

         In March 2017, Col. Hargis timely moved for attorney's fees pursuant to Arkansas Rule of Civil Procedure 54(e)(2) and Ark. Code Ann. § 16-22-308.[1] Attached to the colonel's motion was an affidavit from his attorney that detailed $18, 325 in attorney's fees. Col. Hargis had also hired Col. Mark Sullivan to testify as an expert on military-retirement law during the main dispute over the parties' property-settlement agreement. (For more of that history the reader must turn to the companion case.) Suffice it to say that Col. Sullivan charged $15, 871.20 for his services as a testifying expert witness.

         Ms. Hargis timely opposed the motion. She argued, among other things, that the statute did not apply to a domestic-relations case and that Col. Hargis's "financial abilities" "far exceed[ed]" hers. She asked the court to either deny the motion outright or set a hearing so she could develop the parties' respective financial pictures and abilities to pay fees.

         On April 27, the court ordered Ms. Hargis to pay Col. Hargis's attorney's fees (minus an offset) but disallowed the expert fee:

1. Allen Hargis is the prevailing party in an action based in contract to enforce a Property Settlement Agreement. He is also the prevailing party on Defendant's Counter-Motion to "interpret" a contract.
2. Ark. Code Ann. § 16-22-308 allows the trial court to award attorney fees to the prevailing party in contract actions. ARCP rule 54 provides that a demand for attorney fees be made by Motion.
4. [Col. Hargis] is awarded attorney fees incurred with Lance B. Garner in the amount of $18, 325.00. This judgment is offset against the $5, 210.55 awarded to [Lynn Hargis] previously for past COBRA payments. The balance due and owing to [Col. Hargis] is $13, 114.45 with post-judgment interest[.]

         After the order was entered, Ms. Hargis moved "for relief pursuant to Ark. R. Civ. P. 59," extended her time to appeal the fee order under Ark. R. App. P.-Civ. 4(a)-(b) (2017), and argued that she had a due-process right to appear and oppose Col. Hargis's motion for fees. The motion was deemed denied in the circuit court. Ms. Hargis timely appealed the proper orders.

         In this court, Ms. Hargis presses that the circuit court was required to hold a hearing on Col. Hargis's motion so she could present evidence of the parties' relative "financial abilities." Being denied that opportunity, she says, was a procedural due-process ...


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