Lead Opinion
|¾1. Background
Both the appellants and the аppellees are the children of Gurtie Taylor, who was the owner of the real property at issue. In February 2012, Gurtie executed a deed granting her real estate to the appellants. Gurtie passed away in June 2012 of end-stage Alzheimer’s, a diagnosis first received in 2009.
After Gurtie’s death, the appellees filed a motion to set aside the deed based upon allegations of Gurtie’s incapacity to execute the deed and allegations of undue influence in the procurement of the deed by Marston. Upon learning that Marston and the other siblings had sold the real estate that was the subject of the deed for $45,000, the appellees filed an amended comрlaint and motion for injunctive relief. The appellees sought a temporary order from the court directing that the appellants jointly and severally deposit the proceeds of the sale into the registry of the court while the action was pending. The court granted their temporary request. When the appellants did not pay the proceeds of the sale into the registry of the court, the appellees filed a petition for body attachment, asking that the appellants be held in contempt and incarcerated until such time as the sale proceeds were deposited into the court’s registry.
The matter proceeded to a bench trial. At the conclusion of the trial, the court determined that Gurtie lacked the mental ability to execute the deed and found in favor of the appellees. Because the property had already been sold, the court concluded that it could not set aside the deed, but it awarded the appellees $22,500, representing half оf the sales price of the property. Moreover, the court held each of the appellants in contempt for failing lato comply with the court’s earlier order to deposit the proceeds of the sale into the registry of the court. The court ordered that the money judgment be paid within sixty days, but it statéd that the appеllants could purge themselves of contempt if they paid the judgment within that time. The appellants filed a timely notice of appeal from that order.
II. Mental Capacity of Grantor
In their first argument on appeal, the appellants assert that the circuit court erred in finding that Gurtie lacked the mental capacity to execute the deed. We will not reverse this finding of fact by the circuit court unless the finding is clearly erroneous. Clegg v. Sullivan,
The circuit court received Gurtie’s medical records into evidence. Undisputedly,
In addition to the medical evidence, the court heard from several witnesses. The witnesses for the appellants saw very little impact upon Gurtie’s decision-making capacity due to her Alzheimer’s and dementia. The witnesses for the appellees saw a great deal of impact upon Gurtie’s decision-making capacity due to her Alzheimer’s and dementia. It is the role and duty of the trier of fact to determine the credibility of witnesses and the weight to be accorded to their testimony. We give due deference to the trial court’s superior position in this regard. Browning v. Browning,
The determination of whether a deed is void because of the mental incapacity оf the grantor is measured by his or her mental ability at the time of the execution of the deed. Munzner v. Kushner,
If the maker of a dеed, will, or other instrument has sufficient mental capacity to retain in his memory, -without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue |Binfluence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him.
Id. at 352,
The appellants contend that the circuit court erred in “failing to recognize that a grantor could еxecute a deed during a lucid interval and disregarded the greater weight of the evidence regarding the decedent/grantor’s lucidity.” They note the testimony of Marston; Chuck Dyer, the attorney who prepared the deed; and Joyce Parker, Gurtie’s nursing assistant, who all asserted that Gurtie seemed possessed of her mental faculties at the timе of the execution of the deed. The appellants stress that Dyer and Parker, who were uninterested in the property itself,
The circuit court acknowledged that there had been contradictory testimony about Gurtie’s mental state at the time she executed the deed; however, it also placed great weight on the medical evidence before it. Based on its assessment and balancing of the evidence, the court conсluded that the testimony regarding Gurtie’s “good days” did not outweigh the evidence of Gurtie’s lack of capacity. Credibility determinations resolving inconsistent assertions are for the trial court to decide. Munzner, supra (citing Painter v. Kerr,
III. Contempt
In their second point on appeal, the appellants argue that the circuit court erred in ordering them to pay the judgment within sixty days or face incarceration. As mentioned above, the court entered a restraining order in August 2012, directing the appellants to jointly and severally deposit the proceeds of the sale into the registry of the court while the action was pending. By the time of trial in May 2013, the appellants still had not depоsited the funds into the court’s registry, insisting that they could not do so because they had already spent the proceeds from the sale of the property. At the end of the trial, the court held each of the appellants in contempt for failing to comply with its earlier order. The court ordered that the money judgment be paid within sixty days, but it statеd that the appellants could purge themselves of contempt if they paid the judgment within that time. If they did not do so, however, the court announced that it would sentence each one of them to thirty days in jail for their contempt.
The circuit court’s order awarding judgment to the appellees was entered on August 5, 2013. The order recited thе court’s contempt findings and sanctions, noting that if the appellants did not pay the judgment “within sixty days of the date of this Order, then each will be committed to the Crawford County Detention Center for a period of thirty days.” On September 23, 2013, the circuit court issued an order for body attachment, directing that |7Pennis Taylor, Linda Marston, Patsy Ellifritz, and Wanda Gragg be committеd to the Crawford County Detention Center for thirty days for contempt of court. The court again noted that the appellants could purge themselves of the contempt by paying the total sum of the judgment.
On October 2, 2013, the appellants filed a motion for stay of judgment and to recall the body attachment, arguing that the judgment had not been entered until August 5, and the sixty days for paying the judgment had not expired by the time the body attachment was issued. In their motion and the accompanying brief, the appellants raised several arguments. Primarily, the appellants contended that the circuit court had not given them the full sixty days from the date of the entry of the order to pay the judgment; in addition, they asserted that putting them in jail for failure to pay a judgment was akin to criminal contempt, and they had not been afforded their necessary due-process rights. Appellants also asserted that Wanda Gragg, who had been incarcerated,
We are unable to address these arguments. The addendum presented to us by the appellants does not reflect it, but the circuit court eventually wrote a letter to appellаnts’ counsel in which it denied the requested relief. No formal order denying the motion was ever entered, however. This court has noted that
a purported dismissal of claims in a letter opinion that is not incorporated into the judgment is ineffective. The decisions, opinions, and findings of a court— including |sthose expressed in a letter opinion — do not constitute a judgment or decree; they merely form the bases upon which the judgment or decree is subsequently to be rendered and are not conclusive unless incorporated in a judgment. Thomas v. McElroy,243 Ark. 465 ,420 S.W.2d 530 (1967); Moses v. Daurtartas [Dautartas ],53 Ark. App. 242 ,922 S.W.2d 345 (1996).
Wilkinson v. Smith,
Affirmed.
Concurrence Opinion
concurring.
I agree with parts I аnd II of my colleagues’ decision and concur with part III. A primary aspect of the contempt issue was preserved for appeal in my view, and I write separately to explain why I would affirm the circuit court’s contempt-related decision on the merits.
The appellees filed a petition for body attachment more thаn one year before the final order was issued in this ease. The appellants responded in writing that they could not place the sale proceeds into the court’s registry as ordered because all the money had been spent. The appellants made a clear “inability to pay” argument in their response to the pеtition for [ ¡¡body attachment. They did so again during the trial when the issues were joined. Specifically, Linda Marston admitted during direct examination that she could not pay. Marston testified that she and her siblings each received about $11,100.00 from the sale proceeds, that the court directed them to pay the money into the registry about a month aftеr the sale, and that she had spent everything by that time. Marston said that she did not know if the other siblings had any money to post into the court’s registry.
Appellants’ counsel then introduced Exhibit 10, a document that detailed how Marston spent her share of the house-sale proceeds. Twenty-eight items were listed, ranging from “Mr. Rob’s cleaners: $41.25,” to “Jessica Marston for helping with mom: $1,000,” to “For Mise ... like clothes, food, gas and bills: $1,954.15,” to ‘Wal-Mart: $39.34,” to “Wireless Accessories: $64.95,” to “For fixing our house from Lowels, Yeagers: $1,207.05,” to “Lawyer Estell: $1,000,” and a number of other rather usual expenses. No evidence
After the bench trial, the court entered judgment on the main issue of the case and found the appellants in contempt for not complying with the 15 August 2012 order that directed them to deposit the house-sale proceeds into the court’s registry. The whole case was reduced to one judgment, entered on 5 August 2013, and appellants timely appealed that judgment.
The court’s contempt finding was civil in nature. That was how it was generally handled below — at least until the post-judgment phase and this appeal, when the lines of | inargument admittedly expanded. Recall that in response to thе petition for body attachment, the appellants raised an inability-to-pay defense, which, if accepted, would have been a complete defense to an attempt to enforce payment through imprisonment. Griffith v. Griffith,
This brings us to the proof Marston and the others did or did not present on the inability-to-pay consideration. As a matter of proof, the court’s decision that Mar-ston and the other appellants failed to prove an inability to pay was not clearly against the preponderance of the evidence. The record shows that the appellants consistently failed to pay any money, for over a year, in violation of the court’s order. The first assertion of an inability tо pay was presented in the response to the petition for body attachment. No affidavits or sworn statements were attached to the response — all the court had at that point were lawyers’ assertions. Those assertions, standing alone, are not evidence. See Smith v. Ark. Dep’t of Human Servs.,
The circuit court could have concluded, on the record made pretrial and during the trial that the appellants failed to prove an inability to pay and therefore could not avoid the civil-contempt punishment. I therefore agree to affirm the circuit court’s judgment.