{ "id": 1453623, "name": "Richard GAVIN v. Jody GAVIN", "name_abbreviation": "Gavin v. Gavin", "decision_date": "1995-01-17", "docket_number": "94-672", "first_page": "270", "last_page": "275", "citations": [ { "type": "official", "cite": "319 Ark. 270" }, { "type": "parallel", "cite": "890 S.W.2d 592" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "265 Ark. 468", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1665013 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/265/0468-01" ] }, { "cite": "202 Ark. 73", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449862 ], "weight": 2, "year": 1941, "opinion_index": 0, "case_paths": [ "/ark/202/0073-01" ] }, { "cite": "203 Ark. 524", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1446920 ], "weight": 2, "year": 1941, "opinion_index": 0, "case_paths": [ "/ark/203/0524-01" ] }, { "cite": "306 Ark. 4", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900926 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0004-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-65-114", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 9-12-309", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "1 Ark. App. 271", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142173 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark-app/1/0271-01" ] }, { "cite": "225 Ark. 611", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1642561 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/ark/225/0611-01" ] }, { "cite": "294 Ark. 194", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895809 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/294/0194-01" ] }, { "cite": "295 Ark. 533", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893795 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0533-01" ] }, { "cite": "304 Ark. 227", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881070 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/304/0227-01" ] }, { "cite": "288 S.W.2d 568", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10177129 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/sw2d/288/0568-01" ] }, { "cite": "226 Ark. 165", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718301 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ark/226/0165-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-12-309", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 483, "char_count": 8388, "ocr_confidence": 0.871, "pagerank": { "raw": 1.8394259991701893e-07, "percentile": 0.721847683011635 }, "sha256": "8288254ebbb3a0005096fd92a1a6af6688305fc37a6b4e2893e3bee071db1059", "simhash": "1:246497009502573e", "word_count": 1425 }, "last_updated": "2023-07-14T15:29:57.133828+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Brown, J., dissents." ], "parties": [ "Richard GAVIN v. Jody GAVIN" ], "opinions": [ { "text": "David Newbern, Justice.\nRichard Gavin, the appellant, and Jody Gavin, the appellee, were divorced. Ms. Gavin petitioned the Chancellor to award attorney\u2019s fees for services rendered to her by her attorney after the decree was entered. Mr. Gavin contested the petition on the ground that the fees sought were for services rendered with respect to matters other than the obtaining of alimony, maintenance, or support. From the abstract before us, all we know is that the Chancellor entered two orders after the date of the decree, each awarding Ms. Gavin an attorney\u2019s fee of $1500 with interest at 10% per annum.\nMr. Gavin appeals from those orders contending the Chancellor lacked authority to award attorney\u2019s fees other than with respect to the obtaining of alimony, maintenance, or support and that the 10% interest rate was in excess of the amount allowed by Ark. Const, art. 19, \u00a7 13. We affirm the orders.\n1. The attorney\u2019s fee award\nMr. Gavin\u2019s abstract states that when the Chancellor considered the matter there was \u201ccolloquy between the attorneys and the court regarding the propriety of post-decree fees in matters not involving alimony, maintenance, or support.\u201d There is, however, nothing in the abstract from which we can determine that the fees were awarded for other than alimony, maintenance, or support. All we know is that fees were awarded after the decree of divorce was rendered.\nThat the fees were awarded subsequent to the decree and may have been awarded for services performed by Ms. Gavin\u2019s attorney subsequent to the decree does not require us to reverse. Arkansas Code Ann. \u00a7 9-12-309(b) (1987) permits attorney\u2019s fees to be awarded for enforcement of alimony, maintenance, and support provided in the decree. Attorney\u2019s fees may also be awarded for services related to modification of a divorce decree with respect .to a child custody provision, an item not included in the statutory list. Finkbeiner v. Finkbeiner, 226 Ark. 165, 288 S.W.2d 568 (1956). In each of those situations, the fees are awarded for services rendered after the initial decree of divorce.\nAs a general rule, attorney\u2019s fees are not allowed in the absence of a statute permitting their allowance. Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990); Damron v. University Estates, Phase II, 295 Ark. 533, 750 S.W.2d 402 (1988). We have held, however, that a chancellor has considerable discretion to award attorney\u2019s fees in a divorce case. See, e.g., Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). We and the Court of Appeals have recognized that a chancellor has inherent power and jurisdiction to allow attorney\u2019s fees in matters not specifically covered by statute, including contempt proceedings, for example. Feazell v. Feazell, 225 Ark. 611, 284 S.W.2d 117 (1955); Payne v. White, 1 Ark. App. 271, 614 S.W.2d 684 (1981).\nWe decline to reverse the fee awards with nothing before us showing the attorney\u2019s services for which the fees were awarded.\n2. Interest\nMr. Gavin argues the Chancellor awarded 10% interest on the attorney\u2019s fee orders pursuant to Ark. Code Ann. \u00a7 9-12-309(c) (1987). That section states, \u201cAll child support which becomes due and remains unpaid shall accrue interest at the rate of ten percent (10%) per annum.\u201d He contends that statute conflicts with Ark. Code Ann. \u00a7 16-65-114 (1987) and with Ark. Const, art. 19, \u00a7 13.\nWe assume the reference to \u00a7 9-12-309(c) is in error, and we take the argument to. be that the attorney\u2019s fees awarded amounted to judgments and that the interest awarded on the judgments must, in accordance with \u00a7 16-65-114(a), be limited to the maximum rate permitted by art. 19, \u00a7 13, of the Constitution. Section 16-65-114(a) provides:\nInterest on any judgment entered by any court or magistrate on any contract shall bear interest at the rate provided by the contract or ten percent (10%) per annum, whichever is greater, and on any other judgment at ten percent (10%) per annum, but not more than the maximum rate permitted by the Arkansas Constitution, Article 19, \u00a7 13.\nWe pointed out in McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991), that Article 19 has nothing to do with interest on a judgment amount.\nMs. Gavin has not filed a supplemental abstract. In her argument on this point, she \u201cagrees that interest should not exceed the allowable rate of interest at the time of judgment, which was 8%.\u201d She asks us to modify the judgment rather than reverse it.\nArticle 19, \u00a7 13, limits interest on general loans and consumer loans and credit sales. As to general loans, it provides for penalties in the event interest specified in a contract is in excess of 5% above the federal discount rate at the time of the contract. It voids contracts for consumer loans and credit sales when interest is to be at a rate greater than 17%. Even if the \u201cgeneral loans\u201d provision were applicable here, there is nothing before us from which we could determine the federal discount rate to be used in the formula to be applied.\nWe are reluctant to decline to modify the order in view of Ms. Gavin\u2019s agreement that it should be modified. On the other hand, we are being asked to \u201cfly blind,\u201d and we are more reluctant to modify the Chancellor\u2019s order when we have nothing in the abstract before us and no convincing argument which supports the modification.\nWhen a party makes a concession of a point on appeal, we do not just accept it without discussing the basis for it. See, e.g., Southwestern Distilled Products Inc. v. State, 203 Ark. 524, 160 S.W.2d 208 (1941); Estes v. Estes, 202 Ark. 73, 148 S.W.2d 1075 (1941). Nor is an issue decided simply because both parties to a lawsuit allege the same conclusion of law. See Trace X Chemi cal, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W.2d 89 (1979).\nIn view of the lack of any basis to establish the 8% interest rate suggested by Ms. Gavin and the lack of any convincing argument that the rate is controlled by Ark. Const, art. 19, \u00a7 13, or any basis to establish a proper interest rate should it be applicable, we affirm.\nAffirmed.\nBrown, J., dissents.", "type": "majority", "author": "David Newbern, Justice." }, { "text": "Robert L. Brown, Justice,\ndissenting. I respectfully dissent and would consider the issue of the attorney\u2019s fee award on the merits \u2014 not on the basis of a deficient abstract.\nThe abstract clearly states, as the majority opinion admits, that the trial court and the attorneys debated whether an attorney\u2019s fee was appropriate for work done after the divorce decree for matters not involving alimony, maintenance, or support. Our statutes provide for post-decree attorney\u2019s fees only for enforcement of awards in those limited categories. See Ark. Code Ann. \u00a7 9-12-309(b) (Repl. 1993). It is further clear from the briefs that the work done by Mrs. Gavin\u2019s attorney after the decree dealt with enforcement matters unrelated to alimony, maintenance, or support. Indeed, Mrs. Gavin in her Statement of the Case details three areas where she had to incur additional attor-. ney\u2019s fees: (1) a contempt hearing due to Mr. Gavin\u2019s attempt to thwart a real estate sale; (2) an enforcement action dealing with a marital bank account; and (3) an enforcement action to collect attorney\u2019s fees and counseling fees. Neither party contests this. Nor. does counsel for Mrs. Gavin argue that any other statutory basis for the fee award applies. The stated issue is whether Mrs. Gavin\u2019s counsel should be paid for work done to enforce other aspects of the decree which included division of marital property. Where the framed issue is clear and the facts are not in dispute, we should decide the question.\nFurther, when the parties agree on an interest rate to apply post-decree, I question the existence of a remaining case or controversy. Though the reasoning of the majority opinion about some basis for a concession is logical, the parties did not argue on appeal that the interest rate was in dispute. A ready inference from the briefs is that the eight percent rate was calculated, using the federal discount rate plus five percent. That is sufficient for me. In sum, I question whether we should resurrect an issue and scrutinize it when the parties have laid the dispute to rest and where there is a basis for the appellee\u2019s concession.", "type": "dissent", "author": "Robert L. Brown, Justice," } ], "attorneys": [ "Phil Stratton, for appellant.", "Casey Jones-, for appellee." ], "corrections": "", "head_matter": "Richard GAVIN v. Jody GAVIN\n94-672\n890 S.W.2d 592\nSupreme Court of Arkansas\nOpinion delivered January 17, 1995\nPhil Stratton, for appellant.\nCasey Jones-, for appellee." }, "file_name": "0270-01", "first_page_order": 304, "last_page_order": 309 }