{ "id": 6138054, "name": "Martha Ann RUTHERFORD v. Donald R. RUTHERFORD", "name_abbreviation": "Rutherford v. Rutherford", "decision_date": "2003-03-05", "docket_number": "CA 02-551", "first_page": "122", "last_page": "129", "citations": [ { "type": "official", "cite": "81 Ark. App. 122" }, { "type": "parallel", "cite": "98 S.W.3d 842" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "210 Ark. 826", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724654 ], "weight": 2, "year": 1946, "pin_cites": [ { "page": "832" }, { "page": "941" } ], "opinion_index": 0, "case_paths": [ "/ark/210/0826-01" ] }, { "cite": "216 Ark. 802", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1614148 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ark/216/0802-01" ] }, { "cite": "114 S.W. 700", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1908, "opinion_index": 0 }, { "cite": "88 Ark. 302", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517133 ], "year": 1908, "opinion_index": 0, "case_paths": [ "/ark/88/0302-01" ] }, { "cite": "16 Ark. App. 108", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6653163 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "110" }, { "page": "931" } ], "opinion_index": 0, "case_paths": [ "/ark-app/16/0108-01" ] }, { "cite": "69 Ark. App. 257", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140833 ], "weight": 4, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/69/0257-01" ] }, { "cite": "875 S.W.2d 849", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1443790 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0143-01" ] }, { "cite": "318 Ark. 143", "category": "reporters:state", "reporter": "Ark.", "year": 1994, "opinion_index": 0 }, { "cite": "341 Ark. 173", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257710 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0173-01" ] }, { "cite": "275 Ark. 193", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753625 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0193-01" ] }, { "cite": "282 Ark. 403", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1740817 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/ark/282/0403-01" ] }, { "cite": "344 Ark. 572", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210111 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/344/0572-01" ] }, { "cite": "74 Ark. App. 372", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141838 ], "weight": 3, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/74/0372-01" ] } ], "analysis": { "cardinality": 598, "char_count": 11542, "ocr_confidence": 0.742, "pagerank": { "raw": 1.3925126757598597e-07, "percentile": 0.643083631516741 }, "sha256": "b415d40b026f098f76d3d355fdeaeffddfbabbed9227396f060a30488258695a", "simhash": "1:eb1b44b43be6bdaf", "word_count": 1895 }, "last_updated": "2023-07-14T22:00:28.541819+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman and Gladwin, JJ., agree." ], "parties": [ "Martha Ann RUTHERFORD v. Donald R. RUTHERFORD" ], "opinions": [ { "text": "Josephine Linker Hart, Judge.\nAppellant, Martha Ann Rutherford, argues that the trial court erred in refusing to enforce a marital separation agreement that she and appellee, Donald Rutherford, entered into. The separation agreement was filed on the same date as the complaint for divorce. While the trial judge granted appellee a divorce, he declined to enforce the agreement between the parties, finding that appellant had breached the agreement. Further, the trial judge accepted appel-lee\u2019s contentions that appellant used undue influence, duress, and fraud in the inducement to obtain appellee\u2019s consent to the agreement. We conclude that the trial court properly refused to enforce the agreement.\nAfter more than ten years of marriage, appellee filed a complaint for divorce on June 21, 2001, that provided in part that the parties and their attorneys had executed and filed a separate \u201cwaiver, entry of appearance, agreement, and stipulation\u201d (hereinafter \u201csettlement agreement\u201d) for the trial court\u2019s consideration and approval. The agreement provided, among other things, for a division of the parties\u2019 property upon divorce. Although no answer was filed, appellant did file a counterclaim requesting that the court enforce the property-settlement agreement, which was signed by both parties and approved by their attorneys. Before the case was presented, appellee filed a withdrawal of agreement and petition for an equitable property division on January 25, 2002.\nFollowing a hearing on March 4, 2002, the trial court entered a divorce decree on April 10, 2002. The court refused to incorporate the June 2001 settlement agreement that divided the personal property, gave appellant the marital home, required appellee to pay the outstanding indebtedness owed on the home, and gave appellee seven acres of \u201chill ground.\u201d Instead, the trial court determined that the property was incapable of division, and with the exception of personal jewelry and clothing, all real and personal property was to be sold by the clerk of the court with the proceeds to be applied to the payment of marital debts and any remainder to be split equally between the parties. From that order comes this appeal.\nOur standard of review in this case is de novo. Dalrymple v. Dalrymple, 74 Ark. App. 372, 47 S.W.3d 920 (2001). In Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001), our supreme court concluded that a court of equity \u2018is a court of conscience and it should consider the relative position of the parties and \u201crender a decree that does substantial justice to all.\u201d We will not reverse the chancellor unless his findings are clearly erroneous. Bagwell v. Bagwell, 282 Ark. 403, 668 S.W.2d 949 (1984). Further, the supreme court has \u201cgone on to say that under ARCP Rule 52 we will not reverse the [C]hancellor\u2019s division of property in divorce unless that division can be said to be clearly against the preponderance of the evidence.\u201d Id. at 406, 668 S.W.2d at 951 (citing Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982)). Due deference is given to the chancellor\u2019s superior ability to determine the credibility of the witnesses and the weight to be accorded their testimony. Dalrymple, supra (citing Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000)).\nFor her sole point on appeal, appellant contends that the trial court erred in refusing to enforce the June 2001 settlement agreement as part of the divorce decree. Appellant argues that the motivating force in appellee\u2019s desire to obtain a divorce was that he was involved with another woman. In support of her argument, appellant directs our attention to appellee\u2019s testimony that his attorney prepared the settlement agreement because appellee wanted out of the marriage and that appellee had an opportunity to ask his attorney\u2019s advice before signing. Appellee testified that nothing else influenced him to consent to the agreement other than the fact that he \u201cwanted out of the marriage.\u201d Moreover, appellant notes that appellee stated that he knew that she was \u201cgetting more under the agreement\u201d than he was at the time he signed it. Appellant concludes that appellee\u2019s testimony belies any claim of undue influence, duress, or fraud in the inducement by appellant.\nAccording to the settlement agreement, appellee was to receive the washer and dryer from the parties\u2019 prior home. Referring to the appliances, appellee testified that appellant threatened to \u201ccut it up\u201d before he would get them. He testified that following the execution of the agreement, appellant slashed the tires on the trailer he had used to move his personal property and that she broke into his house and cut the hoses off the washer and dryer, broke the commode, and left the faucet on the bathtub running. Appellant admitted at the hearing that she pled guilty to the charges of DWI and disorderly conduct after she had broken into appellee\u2019s home and damaged the washer and dryer. Moreover, appellant admitted to cutting appellee\u2019s tires but asserted that she paid appellee for the damage he had incurred as a result of her actions.\nAppellee also testified that he was influenced to consent to the agreement because appellant threatened to burn the house if she did not receive the home in the settlement agreement. Appel-lee stated that he was actually concerned that appellant would in fact burn down the house because she had burned their previous home. In testimony concerning the previous fire, appellee stated that appellant told him that she would \u201cburn it to the ground,\u201d and he stated that she set'fire to that house while he went to Black Rock to visit her father.\nJamie Lois Ellis, an acquaintance of appellant, testified that she spoke with appellant two or three days after the agreement was signed. According to Ellis, appellant told her that after getting drunk she broke into appellee\u2019s house, and tore up the washer and dryer. Further, appellant told Ellis that she \u201cbroke the contract and was afraid she was going to lose everything.\u201d Ellis\u2019s testimony reflects that she was aware that the parties\u2019 previous house had burned. Ellis stated that appellant told her after the parties had separated that \u201cshe used lighter fluid and set the house on fire.\u201d\nAppellant, however, testified that she \u201caccidently left grease on the stove and went outside and . . . burnt [the] house by leaving grease on the stove.\u201d Appellant noted that no charges were filed in connection with the fire, and that she and appellee did not collect insurance for the damage.\nIn the divorce decree, the trial court found that appellee anticipated an easy, inexpensive, and uncontested divorce pursuant to the terms of the settlement agreement. In refusing to incorporate the agreement into the divorce decree, the trial court found that appellant had substantially breached the terms of the agreement less than ten days after its execution and before any approval by the court. Moreover, the trial court accepted appellee\u2019s contentions that undue influence, duress, and fraud in the inducement were exerted by appellant to obtain the agreement.\nThe question presented by this appeal is whether an agreement of the parties may usurp the authority of the court to divide the marital property before a divorce is granted. Arkansas Code Annotated section 9-12-315 (Repl. 2002) clearly directs that all marital property shall be distributed at the time the decree of divorce is entered. That statute defines marital property as \u201call property acquired by either spouse subsequent to the marriage except: . . . property excluded by valid agreement of the parties.\u201d\nNeither appellant nor appellee has cited any cases where the trial court refused to accept a property-settlement agreement and incorporate it into the divorce decree. Appellant relies on Helms v. Helms, 318 Ark. 143, 875 S.W.2d 849 (1994), and Carden v. McDonald, 69 Ark. App. 257, 12 S.W.3d 643 (2000), to support her first argument. However, both of these cases involve post-decree requirements for modifying agreements that had been incorporated into the divorce decree. In Helms, our supreme court held that in the absence of fraudulent inducement in executing an integrated property setdement agreement, a divorce decree may not be judicially modified. Id. The court further stated that the fact that the husband had entered into an agreement which was not to his liking was no ground for relief. Id. Likewise, appellant cited Carden for the proposition that one party\u2019s displeasure with an agreement that she had previously entered into is no ground for relief.\nAppellant relies on Arkansas Code Annotated section 9-12-313 (Repl. 2002) as authority for the proposition that the court should enforce a valid agreement of the parties. Section 9-12-313 provides in part that a court \u201cmay enforce the performance of a written agreement between husband and wife made and entered into in contemplation of either separation or divorce and decrees or orders for alimony and maintenance by sequestration of the property of either party.\u201d\nHowever, in Womack v. Womack, 16 Ark. App. 108, 110, 697 S.W.2d 930, 931 (1985), this court discussed two cases in which the supreme court explained that it was not bound by the parties\u2019 agreement in a divorce action:\nIn Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700 (1908), the court said: \u201cThe court is not, in the first instance, bound by the agreement of the parties concerning the amount of alimony to be allowed to the wife.\u201d The Court explained the matter in this way: \u201cThis is so because the court is moved to action by principles of justice and equity, and is not bound to follow the agreement of the parties against what appears to be the justice of the case.\u201d\nIn Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439 (1950), the court said:\nThe parties to a divorce action may agree upon the alimony or maintenance to be paid. Although the court is not bound by the litigants\u2019 contract, nevertheless if the court approves the setdement and awards support money upon that basis there is then no power to modify the decree at a later date.\nFurther, we note that in McCue v. McCue, 210 Ark. 826, 832, 197 S.W.2d 938, 941 (1946), our supreme court stated, \u201c[CJertainly the Court is not bound by an agreement [that a] disputing husband and wife may enter into, in order to terminate a controversy; and this is true even in the absence of fraud or coercion.\u201d\nIn our view, the court is not bound by a stipulation entered into by the parties: rather, it is within the sound discretion of the court to approve, disapprove, or modify the agreement. Arkansas Code Annotated section 9-12-313 merely provides the court with the means to enforce an agreement entered into and approved by the court and does not limit the court\u2019s discretion to accept or reject the agreement of the disputing parties. Even so, the trial court in exercising its discretion in the division of property matters must consider the factors set out in section.9-12-315. Thus, based on the evidence in this case, we cannot say that the trial court\u2019s refusal to enforce the settlement agreement was clearly erroneous.\nIn view of our holding, we do not address appellant\u2019s second argument that appellee\u2019s consent was not the result of undue influence, duress, or fraud in the inducement. Therefore, we afflrm.\nAffirmed.\nPittman and Gladwin, JJ., agree.", "type": "majority", "author": "Josephine Linker Hart, Judge." } ], "attorneys": [ "Dick Jarboe, for appellant.", "William David Mullen, for appellee." ], "corrections": "", "head_matter": "Martha Ann RUTHERFORD v. Donald R. RUTHERFORD\nCA 02-551\n98 S.W.3d 842\nCourt of Appeals of Arkansas Division I\nOpinion delivered March 5, 2003\nDick Jarboe, for appellant.\nWilliam David Mullen, for appellee." }, "file_name": "0122-01", "first_page_order": 148, "last_page_order": 155 }