Lead Opinion
| ,This is appellant Betty Tiner’s second appeal to this court in her efforts to enforce a property settlement agreement that was incorporated into a divorce decree, in which appellee William Joe (“Bill”) Tiner agreed to pay Betty a lump sum of $400,000 in exchange for Betty’s one-half interest in real property and assets belonging to the couple’s business, Benton Transmission. On remand from this court, the circuit court found Bill in contempt for failing to abide by the agreement’s terms, for which the circuit court purported to provide two remedies: (1) the circuit court granted Betty judgment for the balance owed by Bill for Betty’s one-half interest in the parties’ business assets, and (2) the circuit court ordered Bill to pay the judgment in $3,000 monthly payments until the judgment with interest is paid in full, along lawith other financial obligations that are not the subject of this appeal.
I. Property Settlement Agreement
Paragraph three of the “First Amended and Substituted Decree of Absolute Divorce,” provides:
The parties were sworn, listened to the terms of their agreement property settlement agreement [sic] as it was read into the record of this Court in each of their, their counsels [sic], presence, and then both Plaintiff and Defendant testified, under oath, that they understood all the terms of their agreement and that the terms of the agreement were contractual, that neither party was being forced into, or entering into the same under duress, but it was a voluntary undertaking which they each requested the Court to approve to forever settle all of their marital property rights and allocation of marital debt.
In the following paragraph, under the heading “Property Settlement Agreement,” the decree provides:
|34. The Court now, having reviewed the terms of the parties’ property settlement agreement which is set-forth below, which forever settles the respective rights and claims of each party in and to property and other matters, hereby finds the same to be fair and equitable, that it should be approved and confirmed ....
A section entitled “Property Settlement Consideration” provides:
9. In consideration for the transfer and conveyance to Defendant William Tiner of Plaintiff Betty Tiner’s one-half (½) interest in the above described marital real property and Benton Transmission assets, Defendant William Tiner agrees to pay Plaintiff Betty Tiner, who agrees to accept, a bargained for specific sum for property settlement in exchange for all of Plaintiff Betty Tiner’s right, title and interest in all the parties’ real property and Benton Transmission assets. This specific total sum is FOUR HUNDRED THOUSAND DOLLARS ($400,-000.00); subject to, and conditioned upon, the Defendant William Tiner timely paying the above lump sum property settlement funds on of [sic] before July 16, 2009, which is thirty (30) days from date of the final divorce hearing.
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Thаt the Plaintiff Betty Tiner specifically retains title and ownership in the aforementioned real estate assets, as tenant-in-common by operation of law, until she receives full and timely payment of $400,000.00 lump sum portion of her property settlement funds she is due under this agreement. Upon Defendant William Tiner’s full and timely payment of all the above described lump sum property settlement funds, Plaintiff Betty Tiner shall grant, convey, and transfer, by Quitclaim Deed, all of her right, title, equity, and interest in the parties’ real properties described above, and any and all other documents necessary to transfer those real estate and Benton Transmission assets to Defendant William Tiner, or any other designated person or entity as he may direct.
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IT IS FURTHER ORDERED that the Property Settlement Agreement referencedabove is incorporated by reference herein and is adopted by this Court, but not merged into this Decree; and the parties are ordered to abide by the terms of said Property Settlement Agreement.
(Emphasis in original.)
|JI. Background
The following is a brief discussion of what occurred with regard to Betty’s first appeal to this court in Tiner v. Tiner,
At a hearing held on November 8, 2010, Bill admitted that he had agreed to pay Betty $400,000 in a lump sum according to the terms of the property settlement agreement, yet he did not make that payment. Bill testified that he was scheduled to close on a loan through which he was to borrow the money to pay the lump sum. Instead of closing on that loan, however, Bill filed for bankruptcy. According to Bill, he “got thrown out [of bankruptcy court.]” Bill claimed that, since that time, he attempted to borrow money to pay the lump sum but had been turned down by several banks. Bill testified that Benton Transmission earned a profit of $800,000 in 2009 and over $415,000 only six months into 2010. Bill further | ¿testified that he understood that he entered into a contract with Betty in the divorce proceedings and agreed to pay a lump sum but that he was requesting that the circuit court change the parties’ contract. Bill stated that, if the court were to permit him to pay the lump sum on a monthly basis, “$2,000 wouldn’t be a problem.”
Betty testified that she was married to Bill for over seventeen years. Betty testified, “I do not trust [Bill]. I want all of [the lump sum] at one time so I can put closure to two and a half years of misery that he has put me through.”
From the bench, the trial judge expressed his concern about ordering that all of Bill’s property be sold tо satisfy his obligation to pay the lump sum or incarcerating Bill until he pays the lump sum. The trial judge did not think either option was “a good idea” because he “would be putting the future obligations of Mr. Tiner towards Ms. Tiner at risk and I would be bankrupting Mr. Tiner.” The trial judge, however, found that “there is probably a much greater ability to pay [on Bill’s part] than what has been stated from the stand.” The trial judge then ordered Bill to pay, among other things, $3,000 per month until the remainder of the lump sum, $349,286, is paid in full.
On November 22, 2010, Betty filed a notice of appeal from the circuit court’s order dated October 22, 2010, as well as the oral rulings issued from the bench at the November 8, 2010 hearing, for which an order had not yet been entered. Betty lodged the record on appeal with this court on December 21, 2010. On January 14, 2011, the circuit court entered a judgment
|fiIn our opinion in Tiner, supra, delivered on June 29, 2011, this court affirmed the circuit court’s decision setting aside Betty’s writ of execution, albeit on a different basis than that on which the circuit court relied. This court held that there was no judgment upon which to execute, in that the property settlement agreement was an independent contract between the parties and not a judgment, which required language clearly specifying the rеlief that was granted after determination and inquiry. This court then dismissed Betty’s appeal with respect to the judgment that was subsequently granted on January 14, 2011, because the circuit court lost jurisdiction to act once Betty lodged the record on appeal with this court.
On August 9, 2011, Betty filed an amended motion to enforce the divorce decree, for contempt, and for an expedited order for an immediate writ of execution. A hearing was held on September 7, 2011, at which Betty testified as to additional instances of Bill’s contempt and testified that, while Bill had timely paid the $3,000 installments, he did not pay the other amounts ordered such that Betty was in danger of having her assets seized. Also, Betty testified that Bill owed $365,561.93, as set forth in a document entitled “Plaintiffs Judgment Principal and Interest Calculations” that was introduced into evidence. On September 16, 2011, the circuit court held Bill in contempt for failing to abide by the terms of the property settlement agreement and ordered Bill to pay the balance of the lump sum in monthly installments of 17$3,000. The circuit court also awarded Betty a $500 attorney’s fee. On September 21, 2011, Betty filed a timely notice of appeal.
III. Enforcement of Property Settlement Agreement
Betty argues that (1) the circuit court lacked authority to modify the parties’ рroperty settlement agreement from a lump-sum payment to monthly installments, (2) the modification was not a permissible exercise of the circuit court’s contempt power because the sanction did not coerce Bill into complying with the agreement’s provision that he pay $400,000 in a lump sum, and (3) the modification cannot be upheld under Arkansas Rule of Civil Procedure 60(c) (2011), which sets forth grounds for setting aside a judgment after the expiration of ninety days. We agree with Betty.
Arkansas Code Annotated section 9-12-313 (Repl.2009) provides:
Courts of equity may enforce the performance of written agreements 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, or that of his or her sureties, or by such other lawful ways and means, including equitable garnishments or contempt proceedings, as are in conformity with rules and practices of courts of equity.
Although we review equity cases de novo on the record, we do not reverse unless we determine that the circuit court’s findings of fact are clearly erroneous. Hill v. Hill,
We hold that the circuit court erred by ordering Bill to pay the lump sum in monthly installments because it resulted in an impermissible modification of the material terms of the parties’ property settlement agreement. It is well established that, when parties enter voluntarily into an independent property settlement agreement that is incorporated into a decree of divorce, it cannot subsequently be modified by the court. Gentry v. Gentry,
The property settlement agreement clearly provides that each party was represented by counsel, that the parties understood the agreement’s terms and realized the terms were contractual, that neither party had been forced intо the agreement, and that both parties entered into the agreement voluntarily. Moreover, the circuit court found that the agreement was “fair and equitable” and thereafter approved and confirmed it. Bill agreed to pay Betty $400,000 in a lump sum, and the circuit court could not thereafter modify the terms of the agreement by ordering Bill to pay the lump-sum amount in monthly installments. The fact that Bill entered into an agreement that later appeared improvident to him is no ground for relief. See, e.g., Helms v. Helms,
| (According to Bill, “[s]pecific performance of the lump sum provision was no longer feasible, as the time for such performance had passed.” Bill contends that the court therefore exercised its power of contempt by entering an order that “was designed to coerce the compliance of the Appellee because he could easily rid himself of the additional monthly payments and accruing interest — if he satisfied the agreement by paying Appellant in full.”
In Evans v. Evans,
The Evans case is distinguishable from the present case in that the appellant in Evans would have paid $5,000 per month, in accordance with the property settlement agreement, if he had not violated the circuit court’s order. Whereas the circuit court in Evаns punished the appellant for his violation of its orders, the circuit court in the present case alleviated Bill’s burden by ordering him to pay monthly installments instead of the lump sum agreed upon pursuant to the parties’ property settlement agreement. In Williams v. Ramsey,
Contempt is divided into criminal contempt and civil contempt. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made fоr the benefit of private parties. This court has often noted that the line between civil and criminal contempt may blur at times. Our Court of Appeals has given a concise description of |nthe difference between civil and criminal contempt. (“Criminal contempt punishes while civil contempt coerces.”) In determining whether a particular action by a judge constitutes criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Because civil contempt is designed to coerce compliance with the court’s order, the civil contemnor may free himself or herself by complying with the order. This is the source of the familiar saying that civil contemnors “carry the keys of their prison in their own pockets.” Criminal contempt, by contrast, carries an unconditional penalty, and the contempt cannot be purged.
Williams,
The circuit court’s order in the present case neither punishes nor coerces Bill to comply with the property settlement agreement’s provision for a lump-sum payment to Betty. Rather, the order grants Bill relief from his contractual obligations under the agreement. To the extent that the circuit court characterizes its action as contempt for whiсh Bill could purge himself, the circuit court’s action is invalid because it impermissibly modifies the terms of the parties’ property settlement agreement. Accordingly, we reverse that aspect of the circuit court’s judgment that provides that Bill may pay the $349,286 in monthly installments, as opposed to the lump sum that was agreed upon.
IV. Award of Attorney’s Fees
Betty sought approximately $20,000 in attorney’s fees, and the circuit court awarded Betty $5,000, followed by an additional $500. In arguing that she should have received a greater award, Betty contends that the circuit court erred in not considering and discussing the factors set forth in Chrisco v. Sun Indus., Inc.,
Stout, a domestic-relations case, relies on three Arkansas Supreme Court сases to support the proposition that the circuit court must provide “evidence” of its consideration and analysis of the Chrisco factors. Those cases, however, are readily distinguishable from Stout in that none involved domestic-relations proceedings. The cases relied upon by Stout involve entitlement to statutorily mandated attorney’s fees and exceptions to the American Rule.
In Lake View, a school-funding case, our supreme court recognized that the Chrisco factors applied, after determining that attorney’s fees were appropriate where the State had waived sovereign immunity. Lake View, however, was a self-described “unique case with a 114unique set of circumstances.” Lake View,
In Stout, this court noted the lack of any “evidence” that the circuit court had analyzed the Chrisco factors, which we held required that the case be remanded to the circuit court for proper consideration. Our decision in Stout essentially makes specific findings, written or oral, mandatory when awarding attorney’s fees in domestic-relations proceedings and requires that we summarily reverse and remand when an award lacks such findings. We note that Arkansas Rule оf Civil Procedure 52 (2011) provides an avenue for requesting specific findings.
Further, this court’s standard of review supports our decision to overrule Stout. In domestic-relations proceedings, the circuit court has the inherent power to award attorney’s fees, and whether the circuit court should award fees and the amount thereof are matters within the circuit court’s discretion. Miller v. Miller,
Without express authority from our supreme court, and, given this court’s deferential standard of review of the circuit court’s awarding of attorney’s fees, we will not expand our supreme court’s mandate, requiring reversal and remand for an analysis of the Chrisco factors, into thе realm of domestic relations. Accordingly, we overturn Stout and its progeny, to the extent those cases require the circuit court to make written findings on and/or specific reference to the Chrisco factors in awarding attorney’s fees in domestic-relations cases. See, e.g., Clowers v. Stickel,
Because Betty has failed to sustain her burden of proving that the circuit court abused its discretion, we affirm the award of attorney’s fees.
Reversed and remanded in part; affirmed in part.
Notes
. As a general proposition, contempt may not be used to compel payment of a money judgment. See 17 C.J.S. Contempt § 15 (1999); 50 C.J.S. Judgments § 694 (1997). But see Gould v. Gould,
. Myers v. Yingling,
. Chrisco provides that, “although there is no fixed formula in determining the computation of attorney's fees, the courts should be guided by recognized factors in making their decision, including the еxperience and ability of the attorney, the time and labor required to perform the legal service properly, the amount involved in the case and the results obtained, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, whether the fee is fixed or contingent, the time limitations imposed upon the client or by the circumstances, and the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.” Chrisco,
. Arkansas has long followed the "American Rule” that attorney’s fees are not chargeable as costs in litigation unless specifically permitted by statute or rule. Gill v. Transcriptions, Inc.,
. Rule 52(a) (2011) provides that, if requested by a party at any time prior to entry of judgment, in all contested actions tried upon the facts without a jury, the court shall find the facts specially. Subsection (b) provides that, upon motion of a party made not later than ten days after entry of judgment, the court may amend its findings of fact or make additional findings. Ark. R. Civ. P. 52(b).
. Robinson, a divorce case, recognized that, among the pertinent considerations in determining the amount of attorney's fees are the attorney’s judgment, learning, ability, skill, exрerience, professional standing; the relationship between the parties; the amount or importance of the subject matter of the case; the nature, extent and difficulties of services in research, collection, estimation, and mental array of evidence and anticipation of defenses and means of meeting them; considering the case, receiving of confidential information and giving of confidential advice before any pleadings are filed or other visible steps are taken; the preparation of pleadings; the proceedings actually taken and the nature and extent of litigatiоn; the difficulties presented in the course of the litigation; the results obtained; and many other factors besides the time visibly employed. Robinson,
. See Davis v. Williamson,
Dissenting Opinion
dissenting.
While I agree with the majority’s decision regarding the property settlement agreement, I must dissent because I do not believe that our decision in Stout v. Stout,
The majority also contends that by requiring trial courts in domestic-relations cases to perform a Chrisco analysis, we are somehow expanding the supreme court’s mandate. The supreme court has never held that the Chrisco factors are not applicable in domestic-relations cases. To the contrary, the supreme court in Davis v. Williаmson,
I also fail to see how the supreme court’s silence on the necessity of a formal analysis of those factors in domestic-relations cases, while requiring it in other attorney’s fee cases, constitutes a mandate. The majority’s opinion, in effect, now requires appellants to request speсific findings under Rule 52 in order to challenge a fee award in domestic-relations cases— something not previously required in domestic-relations cases — and which could itself be considered an expansion of the supreme court’s mandate.
Nor do I find that it places an undue burden on the trial court. Stout does not require an exhaustive hearing on attorney’s fees, nor does it require strict documentation of time and expenses by the attorneys in a divorce action. But it does require the trial court provide some basis upon which the reasonableness of the fee was determined so that a meaningful review |igmay be performed. For these reasons, I would uphold Stout and remand for an analysis of the attorney’s fee award.
I respectfully dissent.
BROWN, J., joins in this dissent.
. Chrisco v. Sun Indus., Inc.,
. Paulson was a divorce/separate maintenance case.