Hargis v. Hargis

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

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

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

         OPINION

         SHAWN A. WOMACK, Associate Justice

          This case arises out of a long-running dispute between Allen and Lynn Hargis over the division of Allen’s military retirement account following their divorce. After resolving the dispute, the circuit court awarded attorney’s fees to Allen. Lynn contends the circuit court should have conducted a hearing on the parties’ respective financial abilities prior to ordering attorney’s fees. Its failure to do so, she claims, infringed upon her right to procedural due process under the Fourteenth Amendment. We disagree.

          I.

          Because this appeal stems from an award of attorney’s fees, we summarize the facts and procedural history only to the extent necessary to understand this case. In 2009, Allen and Lynn Hargis divorced after twenty-seven years of marriage. Under their property settlement agreement, Lynn would receive half of Allen’s military retirement account, as of the date of the divorce. Four months before his April 2014 retirement, Allen presented Lynn with a proposed order effecting the division of his expected monthly retirement benefit valued at the date of divorce. She refused to sign it. Lynn insisted she was entitled to a full half of the pay, including the portion earned in the five years after the divorce.

          Allen consequently moved to enforce the property settlement agreement. He included a request for attorney’s fees in the motion. Lynn countered with a motion requesting

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the full half of Allen’s retirement pay. She later included a request for reimbursement of insurance premiums under the settlement agreement. Two years of discovery and motions practice followed. In November 2016, a hearing was held on the motion to enforce and Lynn’s counter motions. Allen presented expert testimony on military retirement law. The expert explained that, under his calculations, Lynn was entitled to 37.5% of Allen’s monthly retirement pay.

          The next month, the court issued a letter opinion granting Allen’s motion to enforce and adopting his expert’s calculations. It held that Allen was entitled to fees and costs for the filing and prosecution of the motion. The court noted Allen had overpaid Lynn by $4,775.73. Because he had not sought relief on overpayment, the court declined to grant judgment setting off that amount. Lynn was granted $5,210.55 for reimbursement of insurance premiums. The court instructed Allen to prepare a precedent order that included a blank line for attorney’s fees and costs.

          On February 23, 2017, the court entered an order reflecting its earlier findings.^[1] The formal order reiterated that Allen was entitled to attorney’s fees and costs. It stated he could petition the court with proof of the amount sought. Allen timely moved for attorney’s fees seeking, as relevant here, an amount of $18,325.00. He supplied an affidavit from his attorney and documentation explaining the amount. Lynn objected. She alleged, among other things, that Allen’s financial abilities far exceeded her own and requested a hearing and discovery on that issue. She did not submit an affidavit or any other documentation to support her otherwise conclusory assertions.

         Sixteen days after Lynn’s response, the circuit court issued a letter opinion awarding Allen with $18,325.00 in attorney’s fees. The award was offset against the $5,210.55 awarded to Lynn for reimbursement of insurance premiums. A formal order followed three weeks later. Lynn subsequently filed a "Motion for Relief" under Arkansas Rule of Civil Procedure 59(a)(1). Because the court did not conduct a hearing on the parties’ relative financial abilities, Lynn argued that she ...