APPEAL
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04DR-02-1239]
HONORABLE JOHN R. SCOTT, JUDGE
Tim S.
Parker, pro se appellant.
Sexton
Law Firm, by: Jane Watson Sexton, for appellee.
WAYMOND M. BROWN, Judge
Appellant
Tim Parker appeals from the July 9, 2018 order of the Benton
County Circuit Court finding that the parties' alimony
provision in their property-settlement agreement was
ambiguous and that it was the intent of the parties that his
alimony payments to Sharon would increase once child support
terminated. He argues that the trial court erred as a matter
of law (1) in ruling that there was an ambiguity in the
agreement; (2) in failing to construe the agreement against
Sharon if there was an ambiguity in the agreement because
Sharon's attorney drafted the agreement and divorce
decree; (3) by granting the remedy of reformation, or
alternatively, by modifying or changing the agreement; (4) in
failing and refusing to strictly enforce the agreement as
written; and (5) in dismissing his counterclaim for unjust
enrichment due to his overpayment of alimony and his request
that the overpayment be credited against any future alimony
obligation. We affirm.
Tim and
Sharon were divorced by a decree filed on December 27, 2002.
The parties entered into a separate "Property
Settlement, Custody, and Support Agreement," which was
incorporated into the divorce decree. The agreement stated in
pertinent part:
3. CHILD SUPPORT: HUSBAND covenants and agrees to
pay to WIFE, as support and maintenance for the child born of
this marriage, the sum of Seven Hundred Fifty Dollars
($750.00) per month, the first of said payments to commence
the 5th day of December, 2002. The payments of child support
shall continue to be paid by HUSBAND until the child shall
attain the age of 18 years or if the child remains in school
after age 18, the child support payments shall continue until
the child shall graduate from high school. The obligation to
pay support shall cease if the child becomes married; the
child becomes fully and permanently employed gainfully and
for a reasonable wage, excluding vacation and seasonal
employment of a temporary nature; the child becomes inducted
or enlists or enters upon active duty in the Armed services
of the United States for a term of service not less than one
year[.]
6. ALIMONY AND/OR MAINTENANCE: WIFE suffers from
rheumatoid arthritis and other health concerns and is
disabled within the meaning of the Social Security Act. In
consideration of these factors and the earning potential of
HUSBAND, HUSBAND shall pay to WIFE alimony in the amount of
Three Hundred Fifty ($350.00) per month to continue until the
parties' minor child reaches the age of 18 or graduates
from high school, whichever is later. At that time, HUSBAND
shall pay to WIFE alimony in the amount of One Thousand
Dollars ($1, 000.00) per month until HUSBAND retires, dies,
or is no longer able to be gainfully employed, whichever
occurs first. In the event WIFE cohabitates or remarries, the
obligation of alimony shall immediately cease and desist.
The
parties filed a joint notification of death with the court on
August 30, 2011, stating that their daughter, E.P., had died
on August 5, 2011, at the age of fifteen. The notification
also stated that appellant was current on his child-support
payments at the time of her death. A death certificate was
included with the notification.
Immediately
following E.P.'s death, appellant began making $1, 000
monthly alimony payments and continued to do so for more than
six years. Appellee filed a petition for contempt on March
15, 2018, contending that she had sent appellant a formal
demand for compliance on December 12, 2017, but that
appellant had failed to abide by the terms of their agreement
and was in willful contempt in that he had stopped making the
$1, 000 monthly alimony payments as set out in the agreement.
Appellee also sought attorney's fees. An order to show
cause was entered on March 19. Appellant filed an answer to
appellee's petition and a counterpetition on April 12. In
his answer, he denied owing appellee any arrearages in
alimony payments, contending that he had overpaid appellee.
He also pled several affirmative defenses including set-off
or offset, unjust enrichment, payment in full and
overpayment, and equitable estoppel. In his counterpetition,
appellant stated that his obligation to pay appellee child
support terminated as a matter of law when E.P. died but that
his obligation to pay appellee $350 a month in alimony
remained in full force and effect. His counterpetition
further stated:
9. None of the parties or their attorneys made provision in
the court documents for any increase in alimony beyond that
originally agreed upon and ordered in the amount of three
hundred fifty dollars ($350.00) in the event [E.P.] died
before graduating from high school or reaching the age of
majority, despite full and fair opportunity to address that
contingency. Accordingly, neither the Divorce Decree nor the
Property Settlement, Divorce and Custody Agreement placed any
alimony obligation upon Tim Parker other than the three
hundred fifty dollar[s] ($350.00) per month amount as stated
in those court documents. Moreover, because Sharon
Parker's attorney, Mark Fryhauf, drafted those documents,
any ambiguities or uncertainties contained in or presented by
those documents should be construed against Sharon Parker as
a matter of law. Moreover, because neither party made
provision for such contingency despite full and fair
opportunity to do so[, ] the court should not retroactively
impose such a provision in the Divorce Decree and Property
Settlement[, ] Divorce and Custody Agreement.
10. Notwithstanding the lack of provision contained in either
the Divorce Decree and Property Settlement, Divorce and
Custody Agreement for any increase in alimony in the event
[E.P.] died before turning eighteen (18) or graduating from
high school, Tim Parker or his current wife, Amy Parker, on
Tim's behalf, mistakenly began making alimony payments at
the rate of one thousand dollar ($1000.00) per month to
Sharon Parker from the date of [E.P.'s] death in August
2011 through January 2018. [E.P.] would have turned eighteen
years of age on November 7, 2013. She would have graduated
from high school in May 2014[.] Accordingly, even if Tim
Parker were obligated to begin paying alimony of one thousand
dollars ($1000.00) per month as of what would have been
[E.P.'s] eighteenth (18th) birthday or her graduation
from high school, Tim Parker overpaid his court ordered
alimony by six hundred fifty dollars ($650.00) per month
beginning August 5, 2011. Even if one assumes that his
alimony obligation would have increased to one thousand
dollars ($1000.00) per month beginning with [E.P.'s]
anticipated graduation from high school in May 2014, Tim
Parker overpaid on his alimony obligation in the amount of
Six hundred fifty dollars ($650.00) per month for a total of
between twenty nine (29) months from the date of [E.P.'s]
death until her anticipated graduation from high school in
May 2014in the total amount eighteen thousand eight hundred
fifty dollars ($18, 850.00). Tim Parker's legal alimony
obligation did not increase at the time of [E.P.'s]
death. Tim Parker has paid alimony to Sharon Parker in the
amount of seventy-eight thousand dollars ($78, 000.00) from
the date of [E.P.'s] death through January 2018. Because
his legal alimony obligation never increased above three
hundred fifty dollars ($350.00) per month due to the death of
[E.P.], Tim Parker should have paid alimony to Sharon Parker
in the amount of twenty seven thousand three hundred dollars
($27, 300.00) or seventy eight (78) payments of three hundred
fifty dollars ($350.00) each as opposed to the alimony
actually paid in the amount of seventy-eight thousand dollars
($78, 000.00). Accordingly, Tim Parker has overpaid alimony
in the sum of fifty thousand seven hundred dollars ($50,
700.00) as of January 2018. Tim Parker therefore demands
return of these overpayments or[, ] alternatively, credit and
or offset for these overpayments against any amounts
allegedly owed in accordance with Plaintiff[']s Petition
as well as against any future alimony obligation, if any,
that the court may find he owes to Sharon Parker.
Appellant
also argued that appellee had been unjustly enriched in the
amount of $18, 850, or alternatively $50, 700, and that the
amount should be repaid or at the very least used to offset
any past and/or future obligations owed by him. He further
claimed that his alimony obligation should be terminated or
reduced. Appellee filed a response on May 15 denying the
essential allegations of appellant's counterpetition.
A
hearing took place on June 11. Appellee testified that she is
employed as a music director at a church in Eureka Springs
for which she receives a monthly compensation of $500. She
stated that she is on disability and receives $729 a month.
She testified that she does not have any other source of
income and that she suffers a hardship when she does not
receive her alimony. She said that she hired an attorney when
appellant fell behind in his alimony payments and that
appellant subsequently paid $2, 000 to catch up. She stated
that appellant was current as of January 5 but that he had
not paid since that time. She said that a week after E.P.
died, she received a check from appellant in the amount of
$1, 000. She stated that appellant sometimes fell behind but
that he "always" caught up. Over appellant's
objection, appellee testified that she "thought that if
child support was ...