Baldwin v. Baldwin

587 S.W.2d 592, 266 Ark. 892, 1979 Ark. App. LEXIS 459

• Court: Supreme Court of Arkansas
• Decided: September 12, 1979
• Docket: CA 79-81
• Status: Published

Opinions

Marian F. Penix, Judge.

This case was appealed to the Arkansas Supreme Court and by that court assigned to the Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

The appellant, former wife of the appellee, brought action in the Yell County Chancery Court for a partition sale of 27 acres of land the parties owned in Yell County. A Florida divorce decree, dated May 16, 1974, as partial lump sum alimony awarded the wife use and possession of the property for life or until she should remarry. She was directed to make the mortgage payments, and the decree provided she would receive equity credit for all payments made by her and also equity credit for any increase in the value of the property during her use and possession.

The defendant appellee was served in Texas by notice from an attorney ad litem and and filed an answer in the case by his Texas attorney, Roland J. Bellard, in which it was stated the attorney was a part owner of the property. The answer was on behalf of both the appellee and Mr. Bellard, although Mr. Bellard had not been made a formal party. Subsequently an agreed partition decree for sale of the property was ordered and the finding made that appellant and the appellee’s successor were the owners of the property, the land was not susceptible to division in kind without prejudice, and the property should be sold at public auction by a commissioner appointed in the decree.

At the sale the appellant purchased the property for $28,100 and the sale was confirmed by the court by order filed February 14, 1978. A separate order filed on the same date directed payment of attorney fee and costs out of the proceeds, allowed appellant reimbursement for mortgage payments, taxes, insurance premiums and part of her expenditures for bushhogging and clearing. However, there was error in the net figure stated in the order for disbursement for appellee’s interest. No pleading attempted to set out the respective interests of the parties and the order of sale did not definíate the interests.

Appellee petitioned the court to correct the order for distribution to increase the amount of his one-half of the net proceeds to $8,040.98 from the figure of $1,126.73 previously ordered. An amendment to that petition requested the name of Roland J. Bellard, attorney for appellee, be included along with the name of the appellee. As a commissioner’s deed had already been issued to appellant the petition asked that both Bellard and appellee be deemed to have an equitable lien on the property for their distributable share.

In a response to the petition filed on April 7, 1978 the appellant conceded there was an additional balance distributable for the appellee’s interest in the land, but alleged appellee was more than 12 weeks in arrears on the weekly child support payments the appellee had been ordered to pay to appellant for the support of the three children born of the marriage. The response alleged the deed from appellee to his attorney, Bellard, dated September 19, 1977, purporting to convey an undivided one-half interest in the property was given after appellee was served with notice of this action, that the court should declare a constructive trust for the use and benefit of the children over the monies representing the net proceeds for appellee’s interest in the property. The report of the attorney ad litem reflects the appellee received the notice of suit with copy of the complaint three days prior to the date of the deed to Bellard.

On July 11, 1978 the court entered judgment correcting the prior order of distribution by awarding Roland J. Bellard judgment for the net additional sum of $6,914.25 with interest at 6% from February 14, 1978, declaring a lien on the land and ordering sale of the land if the judgment should not be paid in thirty days. The judgment made no order as to the appellant’s petition to have a constructive trust declared upon the net funds from the sale of appellee’s interest in the property.

We find the final order of the court, dated July 11, 1978 accurately corrected the amount distributable for appellee’s net interest in the sale proceeds except for any set-off to which appellant was entitled for any arrears in child support due appellant from the appellee.

This appeal, being from the chancery court, is heard de novo in this court.

The court should have treated the petition for a constructive trust as a petition to permit appellant to have a set-off for any delinquent child support payments to date of judgment against the $6,914.25 balance of net proceeds distributable to appellee and/or his successor in title.

Roland J. Bellard received the deed from the appellee for the latter’s interest in the property after the commencement of this action and represented both the appellee and himself in the action. It can be fairly inferred from the record Bellard took his deed with knowledge of the pendency of the action and burdened with such charges against the net proceeds as might arise out of the action. Also, the record is not clear as to whether Bellard took the deed in trust for appellee or just what are the respective interests of appellee and Bellard in the net proceeds. One pleading filed by Bellard prayed that both the appellee and Bellard be granted an equitable lien on the property and the names of the two be treated jointly in the action.

The case is reversed and remanded with the following directions:

(1) The amount of arrears in child support, if any, be determined as of July 11, 1978 and set-off against the distributable sum of $6,914.25 found in the judgment. Any delinquent amount of child support should be determined by stipulation of the parties or after hearing evidence.

(2) Any residue of the amount distributable should be ordered disbursed jointly to the appellee and Roland J. Bellard, unless a written stipulation executed by said parties providing for some other method of distribution is filed or unless a hearing is held to determine who should receive the net remaining sum to be awarded.

(3) Any further court decree shall reflect the sale and commissioner’s deed so as to convey all the interest of the appellee and Roland J. Bellard in the property to the appellant, Paula Dier Baldwin, and so that the pleadings filed by Bellard operate to make him a party to the suit and give the court jurisdiction over him and his interest in the property.

Reversed and remanded.

Pilkinton, J., concurs. Howard and Newbern, JJ., dissent.