Adrienne Elaine Friedly v. Erik Christopher Friedly

2020 Ark. App. 167, 597 S.W.3d 135

• Court: Court of Appeals of Arkansas
• Decided: March 11, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 167 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-06-21 14:25:19 Foxit PhantomPDF Version: DIVISION III 9.7.5 No. CV-18-1026

Opinion Delivered: March 11, 2020 ADRIENNE ELAINE FRIEDLY

APPELLANT APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT V. [NO. 43DR-16-586]

ERIK CHRISTOPHER FRIEDLY HONORABLE JASON ASHLEY PARKER, JUDGE APPELLEE AFFIRMED IN PART; REVERSED IN PART

BART F. VIRDEN, Judge

Adrienne and Erik Friedly were married in June 2008 and divorced in August 2018.

They have two children, SVF (9/22/11) and KEF (6/16/13). Adrienne appeals from the

order of divorce alleging that the circuit court erred by (1) failing to determine which items

of personal property were marital or nonmarital; (2) assigning half of Erik’s preseparation

student-loan debt to her; (3) “dividing the parties’ retirement accounts equally, but in an

inequitable manner”; (4) ordering Adrienne to pay Erik’s attorney’s fees regarding her

request for an order of protection in a separate proceeding (case number 43DR-18-13); and

(5) denying her request for production of Erik’s medical records. We affirm in part and

reverse in part. I. Relevant Facts

In August 2016, Erik filed for divorce on the general-indignities ground.1 Adrienne

counterclaimed for divorce, and both parties requested full custody. Adrienne filed a motion

for psychological evaluation citing “serious concerns” related to Erik’s treatment at the

Veterans Affairs Hospital (VA). The court granted the request for psychological evaluation

and ordered Erik to undergo evaluation with Dr. Glen Adams. Adrienne filed a motion to

compel production of Erik’s medical records from the VA because she was “aware of

Plaintiff’s diagnoses and believes they are relevant to the issues of custody and visitation

herein.” Erik asserted physician-patient privilege. At the pretrial hearing, the court denied

the motion to compel, agreeing that the information is privileged. The circuit court noted

that Dr. Adams’s report would be forthcoming, and the issue could be revisited if Dr. Adams

requested Erik’s past medical records.

In January 2018, Adrienne filed a petition for an order of protection, which was

dismissed for lack of evidence.

In February, the circuit court held a two-day hearing, and Adrienne testified that she

worked sporadically during the marriage as a nurse practitioner. She explained that she left

several jobs during the marriage. She explained that at times, she had to quit work because

the job requirements conflicted with parenting and pregnancy; one workplace was a hostile

work environment; once she was fired; and another time she began having health issues. At

1 In March 2017, he filed an amended complaint for divorce based on general indignities and adultery.

2 times, the children attended day care fulltime or a babysitter was in the home, even when

Adrienne wasn’t working.

Erik testified that during the marriage, he worked consistently but left his career in

the food-safety industry because there was no opportunity for advancement. Erik explained

that he and Adrienne agreed that he would obtain student loans and get an APRN

certification to increase his income. Erik testified that by May 2019, his training would be

complete, and both parties would be at the same level of income potential. Erik testified

that during the marriage, he paid Adrienne’s tuition and premarital student-loan payments.

At the trial, the parties again raised the issue of whether Erik’s VA medical records

were privileged. Erik explained that while a patient at the VA, he had been diagnosed with

PTSD from his Iraq deployment and was prescribed .5 mg of Ativan for anxiety, but he

asserted privilege as to all his VA medical records. Adrienne asserted that parental fitness is

always an issue with custody and visitation and that mental health is a key component of

fitness; thus, he should be ordered to produce his mental-health records. The court denied

Adrienne’s request, stating that Erik had undergone a psychological exam and that “all this

stuff’s going to be dealt with there. You may ask about that.”

After the hearings, the circuit court entered a divorce decree finding that Erik was

entitled to a divorce from Adrienne on the general-indignities ground. In the order, the

circuit court set forth that all real property would be sold or, failing that, auctioned. The

parties were ordered to “walk-through” the marital home and to divide the personal

property. The court stated that if the parties could not agree, the personal property would

3 be sold and the proceeds divided. The court ordered the parties’ cars and all marital property

sold and the proceeds divided after reimbursements were made. Adrienne was ordered to

reimburse Erik half the cost of repairs to the home to ready it for sale, and Erik was ordered

to reimburse Adrienne half the land payments made since the separation.

The court ordered that Erik’s student-loan balance before separation—$26,811.62—

would be divided equally, assessing $13,405.81 to each party. The court found that Adrienne

and Erik were each entitled to half of the other’s retirement account as of the date of

separation. Erik’s account was valued at $76,364.49, and Adrienne’s was valued at

$35,744.52. The difference between them, $20,309, was awarded to Adrienne. This amount

was offset by Adrienne’s share of the student-loan debt, leaving $6,904.18. The court

ordered that $6,904.18 would be assessed against Erik’s 401k account by means of a QDRO.

The court also found that Erik’s payment of Adrienne’s student loans during the marriage

was a gift to the marriage.

The attorney’s fees incurred during the divorce case were evenly divided between

the parties; however, the court ordered Adrienne to pay the attorney’s fees for case number

43DR-18-13, the order-of-protection case, because it found that she had filed the petition

in bad faith.

The court awarded Erik full custody of the children with standard visitation to

Adrienne, after finding her unfit to have custody. Adrienne was ordered to pay $524 per

month in child support. Adrienne timely filed a notice of appeal, and Erik cross-appealed,

though he later abandoned the cross-appeal.

4 II. Discussion

A. Personal-Property Designation

For her first point on appeal, Adrienne argues that the circuit court erred by failing

to designate some of the property as marital or nonmarital. We disagree and affirm.

This court reviews division of marital property cases de novo. Grantham v. Lucas,

2011 Ark. App. 491, 385 S.W.3d 337. A circuit court’s findings of fact with respect to

division of property will be affirmed unless clearly erroneous or clearly against the

preponderance of the evidence. Baker v. Baker, 2013 Ark. App. 543, 429 S.W.3d 389. The

circuit court has broad powers to distribute property in order to achieve an equitable

distribution. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001).

The overriding purpose of Arkansas Code Annotated section 9-12-315 (Repl. 2015)

is to enable the court to make a division of property that is fair and equitable under the

specific circumstances. Keathley, supra. According to section 9-12-315(a)(3)(A), “[e]very

such final order or judgment shall designate the specific real and personal property to which

each party is entitled.” Here, the court explained that if the parties could not agree whether

property was marital or nonmarital, then that property would be sold and the proceeds

divided equally. Adrienne and Erik could not agree on the ownership of some of the

personal property, and the court set forth in paragraph six of the order that “[f]rom the net

proceeds of the sale of the marital assets, the following reimbursements shall be made, and

after reimbursements are made, any remaining funds shall be equally divided between

parties.” Though the circuit court did not initially expressly designate the disputed property

5 as either marital or nonmarital, the property was eventually designated as marital property

in the order by its inclusion with marital assets to be sold and the proceeds divided. We see

no error, and we affirm.

B. Student-Loan Debt

For her second point on appeal, Adrienne asserts that the court erred by inequitably

dividing Erik’s remaining student-loan debt because only a fraction of the student loan was

used to benefit the household. Adrienne argues that our court has affirmed several circuit

court decisions to classify as marital debt only the portion of student-loan debt that benefited

the marriage and that these cases dictate that the panel must reverse the circuit court in the

instant case.2 Adrienne’s point is not well taken, and we affirm.

The allocation of marital debt is an essential item to be resolved in a divorce dispute

and must be considered in the context of the distribution of all the parties’ property. Adams

v. Adams, 2014 Ark. App. 67, at 16, 432 S.W.3d 49, 60. Under Arkansas Code Annotated

section 9-12-315 the presumption of equal division does not apply to the division of marital

debts. Id. The circuit court has the authority to consider the allocation of debt in a divorce

case. Baker, 2013 Ark. App. 543, 429 S.W.3d 389. A circuit court’s decision to allocate debt

to a particular party or in a particular manner is a question of fact and will not be reversed

on appeal unless clearly erroneous. Id. A finding of fact is clearly erroneous if, after reviewing

2 See Adams v. Adams, 2014 Ark. App. 67, 432 S.W.3d 49; Burns v. Burns, 2012 Ark. App. 522.

6 all the evidence, the appellate court is left with a definite and firm conviction that a mistake

has been made. Id.

Adrienne asserts that Easley v. Easley, 2010 Ark. App. 73, supports her assertion that

only the portion of student-loan debt used to benefit the marriage may be considered marital

debt and divided equally. In Easley, about 85 percent of the wife’s $88,000 student loan

benefited both the husband and wife and was therefore classified as marital debt. Because

the husband benefited from the loan, 40 percent of the remaining 85 percent was allocated

to him. Our court held that the circuit court did not err in dividing the student-loan debt

and that “[t]he trial court then used its broad discretionary powers to distribute the debt—

excepting the fifteen percent that benefitted [the wife] solely—in an unequal fashion.”

Easley, 2010 Ark. App. 73, at 2. Our holding in Easley is not a mandate to the circuit courts

to divide student-loan debt by a particular formula. Instead, our court deferred to the circuit

court’s discretion to distribute the debt equitably under the circumstances.

Here, Erik’s preseparation student-loan-debt balance was $26,811.62. His total

student-loan debt incurred during the marriage was $50,738.62. Adrienne was ordered to

pay half the preseparation balance, or $13,405.81. The court denied Erik’s request to offset

the amount he repaid for Adrienne’s premarital student-loan debt. The court found that

Erik’s repayment of Adrienne’s premarital student loans was a gift to the marriage. In

conjunction with the student-loan debt, the court decided that Erik’s retirement account

and Adrienne’s retirement account, totaling $112,109.01 should be divided equally. To

equalize the accounts, the court assessed that Erik owed Adrienne $20,309.99, and that

7 [t]he difference between the retirement accounts shall be offset by the amount that [Adrienne] owes [Erik] for the student loan debt; thereby leaving a balance owed to [Adrienne] in the amount of $6,904.18, for which a Qualified Domestic Relations Order shall issue against [Erik’s] Fidelity Land O’ Frost 401k Retirement Savings Plan for this exact sum.

Adrienne argues that because only $8531 of the student loan was used for marital

benefit, the circuit court inequitably divided the debt, and the order must be reversed. As

stated above, under Arkansas Code Annotated section 9-12-315, the presumption of equal

division does not apply to the division of marital debts. Id. The key is that the division must

be equitable. Freeman v. Freeman, 2013 Ark. App. 693, at 9, 430 S.W.3d 824, 830. Here,

the court considered past student-loan repayment, the allocation of retirement accounts, and

current student-loan debt in determining how to apportion Erik’s student-loan debt. In

light of the circuit court’s broad discretionary power to allocate debt, we conclude that the

circuit court did not clearly err in the division of Erik’s student-loan debt.

C. Retirement Accounts

Adrienne asserts that the circuit court erred in its division of each parties’ retirement

account and that she might suffer unfair tax consequences as a result of the circuit court’s

distribution of the accounts. Adrienne’s argument fails because she does not identify the tax

consequences she will suffer—she asserted only that unfair tax consequences might occur.

We do not consider allegations of error absent citation to authority or convincing argument,

and on this point we affirm. Lowell v. Lowell, 55 Ark. App. 211, 219, 934 S.W.2d 540, 545

(1996).

8 D. Attorney’s Fees in Order-of-Protection Case

For her fourth point on appeal, Adrienne argues that the circuit court erroneously

awarded attorney’s fees to Erik relating to a petition for an order of protection—a different

proceeding than the divorce case. We agree, and we reverse the circuit court’s award of

attorney’s fees.

In Scudder v. Ramsey, 2013 Ark. 115, at 14, 426 S.W.3d 427, 436, our supreme court

held that a portion of the attorney’s fees awarded by the circuit court could not stand because

the court’s authority to award attorney’s fees “does not extend to fees incurred in separate

litigation.” Though Scudder is not factually identical to the instant case, the holding is

instructive here. Though the divorce proceedings and the petition for the order of

protection were closely related, they were separate proceedings with different case numbers,

and the court erred in awarding attorney’s fees in the divorce case that were incurred in the

separate petition for an order of protection.

E. Erik’s Medical Records

Adrienne argues that because custody and visitation are involved, Erik’s medical

records are subject to disclosure; thus, she asserts that the circuit court erred in refusing to

disclose the records. We see no error and affirm.

The appellate courts have long held that the circuit court has wide discretion in

matters pertaining to discovery and that a circuit court’s decision will not be reversed absent

an abuse of discretion. Hardy v. Hardy, 2011 Ark. 82, 380 S.W.3d 354. A motion for

production of documents must be considered in the light of the particular circumstances

9 that give rise to it and the need of the movant for the information requested. Shook v. Love’s

Travel Stops & Country Stores, Inc., 2017 Ark. App. 666, 536 S.W.3d 635. When the appellant

is required to prove his or her claim by documents, papers, and letters kept by the appellee,

the scope of discovery should be broader. Id. We consider this factor in deciding whether

there has been an abuse of discretion in denying a discovery request. Id. The goal of

discovery is to permit a litigant to obtain whatever information he or she may need to

prepare adequately for issues that may develop without imposing an onerous burden on the

adversary. Id.

Arkansas Rule of Evidence 503(b) sets forth the general rule of physician-patient

privilege, as follows:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition including alcohol or drug addiction among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patients family.

During the pendency of the case, Adrienne requested Erik’s medical records from

the VA because when they were together, she was “aware of Plaintiff’s diagnoses and

believes they are relevant to the issues of custody and visitation herein.” Adrienne also

claimed that while they were married, Erik told her that he once attempted suicide—a claim

that Erik denied. In response, Erik asserted that the medical records are privileged and that

Adrienne’s request was “irrelevant, not likely to lead to discoverable evidence and overly

broad.” At the hearing, Adrienne argued that a parent’s mental stability is inherently relevant

when custody and visitation are at issue; thus, the circuit court erred by not ordering Erik

10 to produce his medical records. The circuit court denied Adrienne’s motion to compel and

found that Erik’s medical records were privileged. We do not agree that the circuit court

abused its discretion.

On appeal, Adrienne concedes that Arkansas law does not require that a parent’s

medical records are automatically subject to disclosure when custody and visitation are at

issue. Adrienne cites caselaw from Alabama, Alaska, Indiana, Kentucky, Louisiana,

Michigan, Missouri, Maryland, Nebraska, New York, and Texas. These states—under

certain circumstances—have allowed exceptions to normally privileged records relating to

mental health. We decline to do as Adrienne urges and adopt a blanket exception to patient-

physician privilege when custody and visitation are at issue. Instead, we reiterate that the

circuit court has wide discretion in matters pertaining to discovery and that a circuit court’s

decision will not be reversed absent an abuse of discretion. See Hardy, supra.

Adrienne asserts that the exclusion of the VA medical records “precluded [the circuit

court] from properly weighing all the necessary information regarding which party was the

more appropriate parent to whom custody should be awarded.” We disagree. At the pretrial

motion hearing in January 2017, the circuit court denied the motion to compel the

production of Erik’s VA medical records and noted that if after Dr. Adams performed the

evaluation, he is “made aware of something that he needs to do a full psychological

examination and something touches on his report that he feels like its not complete and he

needs to redo it or look into other evidence, then we will fight that battle when we come

to it.” Erik underwent the psychological evaluation, and Dr. Adams’s report was admitted

11 and considered by the court. The circuit court did not abuse its discretion by relying on Dr.

Adams’s report and expertise and the other testimony and evidence presented at trial in

making its decision regarding custody and visitation.

Affirmed in part; reversed in part.

GRUBER, C.J., and KLAPPENBACH, J., agree.

Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit and Elizabeth M. James, for

appellant.

Davidson Law Firm, by: David L. Gershner, for appellee.