Gillison v. Gillison

2011 Ark. App. 244, 382 S.W.3d 795, 2011 Ark. App. LEXIS 245
CourtCourt of Appeals of Arkansas
DecidedMarch 30, 2011
DocketNo. CA 10-924
StatusPublished
Cited by2 cases

This text of 2011 Ark. App. 244 (Gillison v. Gillison) 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
Gillison v. Gillison, 2011 Ark. App. 244, 382 S.W.3d 795, 2011 Ark. App. LEXIS 245 (Ark. Ct. App. 2011).

Opinion

DOUG MARTIN, Judge.

| Appellant William Stacey Gillison (Stacey) appeals from an order of the Chicot County Circuit Court that, among other things, modifies Stacey’s child-support obligations and orders him to pay attorney’s fees for his ex-wife, appellee Mary Carol Talbot Gillison (Carol). We affirm all but one of the issues raised in this appeal; we reverse and remand the award of attorney’s fees for further consideration.

Stacey and Carol were married February 14, 1992, and divorced by decree entered October 4, 2005. Incorporated into the divorce decree was a “Custody, Child Support, and Property Settlement Agreement” (the Agreement). Pursuant to the Agreement, Carol was to have physical custody of the couple’s four children, while Stacey was given “reasonable and liberal visitation rights.” In addition, the Agreement provides that Stacey was to pay child |?support in the amount of $1500 per month for the care and maintenance of the minor children so long as they lived with Carol, and Stacey was “responsible for payment of the costs for the minor children to attend a public or private school [including] the cost for tuition, uniforms, and bus fees.”

The Agreement further provides that Carol and the parties’ minor children be allowed to live in the marital home in Lake Village “until the youngest child graduates from high school or turns eighteen (18), whichever occurs last.” The Agreement contains the following proviso regarding the marital home:

Should [Carol] remarry, live with another person, or move another person into the marital home prior to May of 2013, then the marital home shall be sold or appraised immediately and [Carol] shall pay fifty percent of the equity or appraised value to the William N. Gillison Revocable Trust.

Carol agreed to pay the mortgage payments on the home.

Concerning alimony and spousal support, the Agreement provides that Stacey was to pay Carol $1500 per month as alimony. As each child graduated or completed his or her high school education, the spousal support would be reduced by $375 per month following graduation and would be eliminated entirely no later than May 2013. The Agreement provides that spousal support would terminate immediately if Carol remarried, lived with another man, or moved another man into the marital home.

On February 9, 2009, Stacey filed a motion for contempt in the Chicot County Circuit Court, alleging that Carol had failed to timely make the mortgage payments as required under the Agreement. Stacey sought modification of the Agreement and divorce |sdecree to transfer direct responsibility for the mortgage payments from Carol to Stacey. In addition, Stacey alleged that Carol had violated the divorce decree by moving another person into the marital residence.

Carol filed an answer to Stacey’s motion for contempt in which she admitted that “occasional mortgage payments on the realty have been a few days late,” but she asserted that the reason for the late payments was Stacey’s failure to make his alimony and child-support payments on time. Carol agreed that responsibility for the mortgage payments should be transferred to Stacey, but she denied that the home should be sold.

Carol filed a counterpetition for modification of the Agreement in which she alleged that the monthly child-support payment should be increased to $2500 per month; that the responsibility for the mortgage payments, taxes, and insurance on the marital home should be transferred to Stacey; that the property should be sold and equally divided when the couple’s youngest child reached the age of eighteen and graduated from high school; that alimony payments should remain $1500 per month and never be reduced until they terminated; and that Stacey should be ordered to cease and desist from deducting from his child-support payments expenses associated with taking the children on trips and vacations.

Carol amended her counterpetition on May 21, 2009, asking the court to order Stacey to cease and desist from threatening Carol and the children with stopping the support payments and selling the house. She filed a second amended coun-terpetition on July 1, 2009, asserting that their oldest child had graduated from high school in May 2008, thus reducing [4Stacey’s alimony obligation to $1125 per month. She alleged that Stacey had not paid alimony for the months of June and July 2008 and was thus in arrears. Carol also noted that the child-support agreement does not state that Stacey could automatically reduce his child-support payments when a child graduated from high school or reached the age of eighteen, and she complained that Stacey had unilaterally reduced his child-support payments from $1500 to $1125 per month when their oldest child graduated from high school, without first obtaining permission from the court. Accordingly, Carol alleged that Stacey was $2246 in arrears for the months of June 2008 through July 2009.

The matter proceeded to trial on November 3, 2009, and the circuit court issued a letter opinion on March 23, 2010. The court noted that the couple’s oldest child turned eighteen on March 30, 2008, and graduated from high school in May of that year; in addition, another child, who had been living with Stacey since August 2009, was to turn eighteen in July 2010. The court also pointed out that Carol had not remarried and continued to live in the marital residence with two of the parties’ minor children as well as her one-and-a-half-year-old child by another man, Terry Seaman.

Regarding the marital residence, the court found that the parties stipulated that the Agreement was contractual in nature and independent of the divorce decree. According to the terms of the Agreement, the court stated that the marital home had to be sold only if Carol should remarry, live with another person, or move another person into the marital home prior to May 2013. The court found that none of these contingencies had occurred, |fiso the home should not be sold at that time. The court stated that it “[did] not consider the one and one-half year old child born of [Carol’s] relationship with Terry Seaman as being ‘another person’ as contemplated by the provision prohibiting moving another person into the marital home.” The court did order, however, that Stacey was to take over the mortgage payments and should receive credit for the monthly house payment against his child-support obligation.

Regarding the alimony, the court found that the Agreement was an independent contract and that, in the absence of the occurrence of any of the events specified therein, the court had no authority to modify or terminate alimony. Because Carol had not “remarried, lived with another man, or moved another man into the marital home,” the court found that alimony should not be terminated. The court noted that the oldest child had turned eighteen, and Stacey was thus entitled to reduce the alimony payments by $875 per month beginning in June 2008. The court ruled, however, that Stacey had violated the terms of the agreement by unilaterally reducing his alimony obligation by half during his two months of extended summer visitation during the summer of 2008.1 Because that provision referenced only child support, not alimony, the court found that Stacey’s reduction in alimony was improper and that he was indebted to Carol for that additional amount.

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Bluebook (online)
2011 Ark. App. 244, 382 S.W.3d 795, 2011 Ark. App. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gillison-v-gillison-arkctapp-2011.