Meeks v. Meeks

721 S.W.2d 653, 290 Ark. 563, 1986 Ark. LEXIS 2233
CourtSupreme Court of Arkansas
DecidedDecember 22, 1986
Docket86-105
StatusPublished
Cited by15 cases

This text of 721 S.W.2d 653 (Meeks v. Meeks) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meeks v. Meeks, 721 S.W.2d 653, 290 Ark. 563, 1986 Ark. LEXIS 2233 (Ark. 1986).

Opinion

Darrell Hickman, Justice.

This is a divorce suit. Patricia Chambers and Russell Meeks were married in 1971 and have two minor children. They separated on May 1,1984, and on May 3, the appellee filed for divorce in Pulaski County, Arkansas, the parties’ residence. She dismissed the action after experiencing difficulty in obtaining satisfactory legal counsel. She refiled the suit that same day in Yell County, the home of her family. The divorce and custody of the children were not contested, only the division of the property. Extensive discovery was conducted to determine the assets of the parties and, specifically, those of appellant’s law practice. The controversy focused on whether the law firm assets, as determined by the chancellor, were marital property. On appeal five issues are raised for reversal: the increase in child support payments, the commissioner’s fee for the sale of the joint property, the interest in the law firm awarded to the appellee, credit for house payments, and the distribution of the personal property. The chancellor was wrong to increase the child support and awarded an excessive commissioner’s fee. In other respects the chancellor was not clearly wrong.

The parties either agreed, or did not contest, the valuation date of the property being September 30, 1984. The trial court entered a final decree on January 14,1985, ordering the appellant to pay $700 per month child support and establishing visitation rights. The trial court found that the appellee was entitled to one-half interest in the firm assets, including the accounts receivable and the “work in progress.” After determining the separate property of each party, the chancellor ordered the sale of the joint property, and the proceeds divided equally. The appellee purchased the law firm’s assets and the home at the public sale.

On October 28, 1985, the chancellor entered another order increasing the child support to $1,000 per month. The appellant was denied credit for house payments he made during the period of separation. This order also concerned profit sharing for 1984 and some items of personal property.

First, we consider the question of the increased child support. In the final decree entered January 14, 1985, the chancellor fixed child support at $700 per month after hearing the parties’ testimony and considering the evidence concerning the parties’ property and earning capacity. There was no hearing on a change in circumstances of the parties prior to the October 28, 1985, order, which raised child support to $1,000 per month. The only evidence before the chancellor was a petition filed by the appellee requesting the increase. The trial court only mentioned in its findings of fact that it viewed the appellant’s 1984 income tax return in its consideration of the matter.

Ordinarily, the amount of child support lies within the sound discretion of the chancellor. Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982); Gross v. Gross, 266 Ark. 186, 585 S.W.2d 14 (1979). Child support may be reviewed by the trial court at any time, even after the final decree is entered and the chancellor may modify a provision of child support to serve the best interests of the children when there are changed circumstances. Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980); Hurst v. Hurst, 269 Ark. 778, 602 S.W.2d 137 (Ark. App. 1980). But the burden is upon the party seeking an increase in child support to show a change of circumstances. Glover v. Glover, 268 Ark. 506, 598 S.W.2d 736 (1980); Riegler v. Riegler, 246 Ark. 434, 438 S.W.2d 468 (1969). There was no evidence presented to show a change in circumstances, and there was no hearing on the matter. The order increasing the child support is reversed.

The second issue concerns the fee awarded the commissioner for the sale of the assets, consisting of real and personal property. The gross sale price was $216,200. The amount of the fee awarded was $6,486. We recently held in Valley National Bank of Arizona v. Stroud, 289 Ark. 284, 711 S.W.2d 785 (1986), that the statutory allowance for a commissioner’s fee cannot be exceeded. Ark. Stat. Ann. §12-1712 (Repl. 1979) provides that a sale of $35,000 or more calls for a commission of one-tenth of one percent. The appellee concedes that the fee exceeds the amount allowed by statute but argues the objection came after the sale was confirmed. The record does not reflect that the appellant ever waived an objection to the fee. The fee is reduced to the statutory amount, which is $216.20.

The third and fourth issues are closely related. The chancellor found the appellee was entitled to one-half of the law firm assets. The appellee’s right to the law firm assets is not contested, only decisions by the chancellor concerning specific assets. The appellant questions the chancellor’s finding that the accounts receivable and “work in progress” were marital property under Arkansas’ new marital property law. Ark. Stat. Ann. § 34-1214 (B) (Supp. 1985). He argues that under Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983), the law firm’s accounts receivable are not marital property. In Potter we did say that accounts receivable might not be marital property unless there was evidence of fraud or intent to delay receipt of the property in order to exclude it from consideration in a divorce proceeding. In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), we considered our prior decisions and stated:

We now realize that we have inadvertently failed to recognize the new concept of‘marital property,’ created by Act 705 of 1979, as amended. That statute defines marital property as all property acquired by either spouse subsequent to the marriage, . . .

We were wrong in Potter to qualify the treatment of accounts receivable as marital property. The general rule is that accounts receivable are marital property.

In the first case of Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1967), decided long before the new marital property law, we held that accounts receivable belonging to a partnership were assets of the partnership and therefore subject to division upon a divorce. We determined that instead of assigning the spouse half of the accounts receivable collected in the future, or in kind, accounts receivable should be treated as having a provable fair net present value, and an award made accordingly. We affirmed this holding in Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983).

The accounts receivable totaled $20,002 as of September 30, 1984. The amount is not disputed nor is the valuation disputed, only the legal question of whether accounts receivable are marital property.

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Bluebook (online)
721 S.W.2d 653, 290 Ark. 563, 1986 Ark. LEXIS 2233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meeks-v-meeks-ark-1986.