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Haley v. Elkins

Court of Appeals of Arkansas, Division I

May 1, 2019

PHYLLIS HALEY APPELLANT
v.
KELLY ELKINS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KERRY HALEY APPELLEE

          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 ...


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