Furr v. Furr

540 S.W.3d 338
CourtCourt of Appeals of Arkansas
DecidedFebruary 21, 2018
DocketNo. CV–17–579
StatusPublished
Cited by1 cases

This text of 540 S.W.3d 338 (Furr v. Furr) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Furr v. Furr, 540 S.W.3d 338 (Ark. Ct. App. 2018).

Opinion

RITA W. GRUBER, Chief Judge *340Jennifer and David Furr entered into a property-settlement agreement (PSA) in connection with their divorce, which occurred on May 26, 2015. Jennifer appeals from the Crawford County Circuit Court's order holding her in contempt for violating a provision of the agreement pursuant to which the parties agreed to file joint tax returns for the year 2014. She contends that the circuit court erred by finding her in contempt because (1) the court never ordered the parties to file joint tax returns; (2) David is estopped from enforcing the agreement; (3) David waived his right to enforce the provision; (4) David's conduct made it impossible for Jennifer to file joint tax returns; and (5) the parties, through their accountants, had reached an agreement to amend the PSA to file separate tax returns. We reverse the circuit court's order and dismiss the case.

The dispute in this case arose after David filed a motion for contempt against Jennifer on January 8, 2016. He alleged that she should be held in contempt "for failure and refusal to file a joint tax return as agreed between the parties in the PSA and as ordered by the Court." David also requested that the court hold Jennifer in contempt and require her to sign certain documents necessary to transfer her interest in entities belonging to him pursuant to the PSA. Jennifer replied, asking that David's motion be denied. She admitted that the PSA contained a provision requiring the parties to file joint tax returns for 2014; alleged that her accountant had made multiple, unsuccessful attempts to obtain information from David in order to file joint tax returns; and acknowledged that she had filed her returns separately after agreeing with her accountant that she had no alternative when David failed to provide the documentation necessary to file joint returns. She also stated affirmatively that the circuit court did not order either party to file tax returns either jointly or separately because "this was a contractual arrangement between the two parties." Finally, she pleaded the affirmative defenses of estoppel and impossibility of performance.

After multiple hearings, the court entered an order on March 30, 2017, holding both parties in contempt. The court stated that the parties were divorced by decree entered on May 26, 2015; the court had "considered the parties' written PSA and ordered the parties to file joint tax returns for the year 2014"; and both parties had *341filed 2014 tax returns as married but filing separately. The court recognized that either party could have moved to enforce the PSA at any time and it would have been the court's obligation to enforce the rule of law, and it rejected all of Jennifer's defenses to enforcement of the agreement, including estoppel, waiver, impossibility of performance, and mutual agreement. The court then found each party in contempt of court and sentenced them to thirty days in the Crawford County jail, suspended pending full and complete cooperation and compliance with the order, which included obtaining an accountant to prepare joint tax returns for 2014. Jennifer filed this appeal from the court's order.

I. Contempt

Contempt is divided into criminal contempt and civil contempt. Ivy v. Keith , 351 Ark. 269, 279, 92 S.W.3d 671, 677 (2002). Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Id. at 280, 92 S.W.3d at 677. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Id. Because civil contempt is designed to coerce compliance with the court's order, the civil contemnor may free himself or herself by complying with the order. Id. Because the parties in this case may free themselves by complying with the court's order, this is a case of civil contempt. Our standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. Id.

Jennifer argues that the circuit court did not have the power to enforce the parties' PSA through its contempt power because it was a private agreement and was not incorporated as part of the divorce decree. David argues that the court did incorporate the PSA as part of the decree orally in its remarks at the divorce hearing and argues that Arkansas Code Annotated section 9-12-313 (Repl. 2015) authorizes the court to enforce settlement agreements through its contempt power. We do not reach this argument because, regardless of whether the parties' PSA constitutes an order of the court, we hold that the circuit court's finding of contempt is clearly against the preponderance of the evidence in this case.

Contempt may be established when the offending party willfully disobeyed a valid order of the court. Ball v. Ball , 2014 Ark. App. 432, at 5, 439 S.W.3d 92, 94. However, before one can be held in contempt for violating the court's order, the order must be definite in its terms and clear as to what duties it imposes. Omni Holding & Dev. Corp. v. 3D.S.A., Inc. , 356 Ark. 440, 450, 156 S.W.3d 228, 235 (2004). Finally, if the alleged contemnor is "without the ability to comply" with the order, a court's contempt power may not be exercised. Aswell v. Aswell , 88 Ark. App. 115, 195 S.W.3d 365 (2004).

Pursuant to the parties' agreement, Jennifer provided her tax information for the year 2014 to Scott James, who had been the parties' accountant for more than a decade at the time of the divorce. Mr. James required the parties to pay a $7500 retainer, but only Jennifer paid her half.

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Bluebook (online)
540 S.W.3d 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/furr-v-furr-arkctapp-2018.