APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, THIRTEENTH DIVISION
NO. 60DR-16-2301] HONORABLE W. MICHAEL REIF, JUDGE
Steve
Westerfield, for appellant.
One
brief only.
RAYMONDR. ABRAMSON, JUDGE
Appellant
Phyllis Haley filed this one-brief appeal to challenge the
amended divorce decree entered in her divorce from Kerry
Haley. On appeal, Phyllis argues that the circuit court
committed numerous errors meriting reversal. Specifically,
she disputes the circuit court's findings related to the
child-support award, the property division, the adjudication
of a personal-injury claim she made against Kerry, and the
refusal to award her attorney's fees. We affirm on all
points.
I.
Background
Phyllis
and Kerry married in September 1992. During their nearly
twenty-four-year marriage, they had two daughters. Phyllis
and Kerry also amassed a significant amount of both real and
personal property, which included four marital rental
properties, nine rental properties owned exclusively by
Phyllis as her nonmarital property, and a business Kerry
began during the marriage-AnT Auto.
Phyllis
and Kerry separated on June 8, 2016, and Kerry filed a
complaint for divorce based on general indignities the next
day. Phyllis answered Kerry's complaint and
counterclaimed for divorce based on general indignities. At
the time of the filing of the complaint and counterclaim, the
younger daughter was a minor; thus, issues relating to her
custody as well as child support required adjudication.
The
circuit court held a temporary hearing in October 2016. At
the opening of the hearing, the parties announced that they
had reached an agreement on the majority of the temporary
issues. Shortly thereafter, a temporary order was entered
that memorialized the parties' agreement. Significantly,
this order awarded Phyllis custody of the minor child and
required Kerry to make monthly child-support payments of
$1217 beginning on November 5, 2016. The temporary order also
provided that the parties would split the minor child's
school tuition and other school-related expenses. Phyllis was
awarded temporary possession of the marital residence, and
the parties were ordered to equally divide the mortgage
payment on the residence. With regard to the rental
properties, the circuit court ordered that Kerry would
"continue to maintain, be responsible for any expense,
and collect rent" for the four marital rental properties
and that Phyllis would "maintain, be responsible for any
expenses, and collect rental for her nonmarital rental
properties." Before the parties' separation, Kerry
had managed both the marital and nonmarital rental
properties.
Following
the entry of the temporary order, Phyllis filed a motion to
modify child support in February 2017, in which she sought
retroactive child support from the date that Kerry filed his
complaint for divorce-essentially, she requested that the
circuit court award her support for the months of June
through October 2016. Then in May 2017, Phyllis filed an
amended counterclaim for divorce in which she alleged both
general indignities and physical abuse as grounds for
divorce. She also included in the amended counterclaim a
personal-injury claim against Kerry, alleging that Kerry
physically and emotionally abused her.
The
circuit court held a final divorce hearing on June 8 and July
12, 2017. The parties stipulated that grounds for divorce
were not contested and that Phyllis should be granted a
divorce on her counterclaim. Kerry also consented to
Phyllis's having custody of their minor child. The issues
of Kerry's child-support obligation and division of the
parties' property were sharply disputed. At the
conclusion of the second day of the hearing, the circuit
court took the matter under advisement and later telephoned
the parties' counsel to announce its ruling.
The
circuit court's ruling was reduced to writing, and a
divorce decree was entered on September 25, 2017. One day
later, the circuit court entered an amended divorce decree,
which was substantially the same as the original divorce
decree. Phyllis timely appealed from the amended divorce
decree.
On
appeal, Phyllis raises eight arguments in support of
reversal.[1] Specifically, she contends the circuit
court erred by (1) denying her request for retroactive child
support; (2) allowing Kerry to retain the income collected
from the four marital rental properties from July 2012
through July 2016; (3) allowing Kerry to retain the income
collected from her nine nonmarital properties from July 2012
to July 2016; (4) denying her tort claim against Kerry; (5)
denying her any portion of Kerry's 2016 bonus; (6)
determining that Kerry had sold one-half of his interest in
AnT Auto to his father; (7) finding that the 2015 tax refund
was not a marital asset; and (8) refusing to award her a
reasonable attorney's fee.
The
record on appeal was lodged with our court in March 2018.
Shortly thereafter, Kerry died, and his sister Kelly Elkins
was appointed as personal representative of his estate. In
July 2018, Phyllis filed a motion for substitution of parties
with our court, seeking to have Kelly Elkins substituted for
Kerry. Our court granted her motion. As previously mentioned,
the appellee did not file a responsive brief.
II.
Standard of Review
We
review divorce cases de novo on the record. Farrell v.
Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006). We will
not reverse a circuit court's finding of fact in a
divorce case unless it is clearly erroneous. McKay v.
McKay, 340 Ark. 171, 8 S.W.3d 525 (2000).
Notwithstanding that general premise, we review certain
issues that arise in the context of this appeal such as
attorney's fees and the award of retroactive child
support using an ...