Shelby Woods v. Dianne Woods

Cite as 2020 Ark. App. 469
Reason: I attest to the ARKANSAS COURT OF APPEALS
accuracy and integrity of this
document
Date: 2021-07-15 10:55:59 DIVISION I
Foxit PhantomPDF Version:
No. CV-19-950
9.7.5

Opinion Delivered: October 7, 2020

SHELBY WOODS APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
THIRD DIVISION [NO. 60DR-17-
V. 179]

HONORABLE CATHLEEN V.
DIANNE WOODS COMPTON, JUDGE
APPELLEE
REVERSED AND REMANDED ON
DIRECT APPEAL; AFFIRMED ON
CROSS-APPEAL

KENNETH S. HIXSON, Judge

Appellant and Cross-Appellee Shelby Woods (Shelby) appeals from an August 20,

2019 divorce decree filed by the Pulaski County Circuit Court. On direct appeal, Shelby

contends that (1) the circuit court erred by failing to award him his nonmarital property; (2)

the circuit court erred by ordering him to maintain a life insurance policy for the benefit of

his minor child, in an amount in excess of his total child support obligation, until his child

turns twenty-one years old; and (3) the circuit court erred by awarding appellee and cross-

appellant Dianne Woods (Dianne) possession of certain real property until the parties’ minor

child reaches the age of majority when the parties’ premarital agreement requires the

property to be divided equally. Dianne filed a cross-appeal, contending that the premarital
agreement is void because it lacks the required statutory formalities. We reverse and remand

on direct appeal and affirm on cross-appeal.

I. Facts

Shelby and Dianne were married on October 21, 1997. Each party had been married

previously, and each had children from their respective marriages. At the time of the trial,

Shelby was 76 years of age, and Dianne was 71 years of age. Dianne’s adult daughter had a

child, M.W. In 2008, when M.W. was three years of age, Shelby and Dianne adopted

M.W.1 The parties separated in January 2017.

Dianne filed her complaint for divorce on January 16, 2017, alleging general

indignities as grounds for the divorce. Dianne requested that she be granted an absolute

divorce, be awarded custody of M.W. subject to reasonable visitation by Shelby, be awarded

child support in addition to maintenance and spousal support, and be awarded the temporary

use and possession of the marital home and the furnishings contained therein. Dianne

further requested that Shelby be ordered to pay her attorney’s fees and court costs and that

all property rights be adjudicated by the circuit court.

Shelby filed an answer and a counterclaim for divorce also alleging general

indignities. He requested that the parties be awarded joint custody of their son, M.W.

Shelby agreed that the parties had accumulated debt and property during the marriage that

must be adjudicated, but he also alleged that the parties had various property and debt that

had been acquired prior to marriage that should remain under each party’s ownership,

1
The exact date of M.W.’s adoption is not in the record, but it is not pertinent to
the issues in this appeal.
2
control, and responsibility. Additionally, Shelby alleged that each party should be

responsible for any debt incurred after the date of the parties’ separation. Dianne

subsequently filed an amended answer to Shelby’s counterclaim for divorce, wherein she

alleged that there existed a Prenuptial Agreement (sometimes referred to herein as the

“premarital agreement” or “agreement”) executed by the parties. However, she alleged

that because she was coerced to enter into the agreement, the agreement was invalid and

unenforceable.

An agreed temporary order was entered on July 7, 2017. In the agreed order, Shelby

agreed to continue to pay temporary child support in the amount of $2,500 a month and

M.W.’s private school tuition and fees. Dianne was granted temporary possession of the

marital residence in Little Rock, and Shelby was granted temporary possession of the lake

house in Hot Springs. Shelby agreed to pay some temporary spousal support in the form of

paying certain utility, maintenance, taxes, insurance, and medical fees.

A trial was held on May 13, 2019. Dianne testified extensively concerning the

premarital agreement and the current financial condition of the parties. Dianne testified

that she had entered into a premarital agreement with Shelby on October 9, 1997.

However, she stated that she thought Shelby had revoked the premarital agreement during

their marriage. Dianne requested that if the premarital agreement had not been revoked,

the circuit court should set aside the agreement because she was under duress when she

signed the agreement. Further, she also stated the premarital agreement should be set aside

because the parties had been married for over twenty years and the parties adopted her

grandson late in their lives.

3
Dianne testified that she did not work during the marriage, but Shelby went back to

work within a year of being married. Dianne stated that her assets decreased in value while

Shelby’s “exponentially increased.” Dianne requested that she be granted spousal support

and awarded an unequal division of property. She desired the marital home, lake house,

half the proceeds of the commercial lots in Hot Springs, M.W.’s college-education account,

and their country club membership to be awarded to her. Regarding the household

furniture and furnishings, Dianne stated that the parties could come to an agreement

regarding the division of those assets. Two exhibits listing her recollection of those assets

were admitted into evidence along with Dianne’s notation of whether she felt each item

was marital or nonmarital.

On cross-examination, Dianne agreed that she signed the premarital agreement and

that Shelby did not threaten to withhold marriage if she refused to sign it. Dianne admitted

that she consulted with her own personal attorney prior to executing the premarital

agreement. The premarital agreement contains her Attorney’s Acknowledgment and

Disclosure, which provides the following in pertinent part:

I, John Logan Wade, Attorney at Law, . . . state that I have informed and counseled
DIANNE BOYT [Woods] regarding the rights and privileges of a wife under the
laws of the State of Arkansas and the effect of this agreement on those rights and
privileges. Furthermore, DIANNE BOYT [Woods] has demonstrated to me that
she fully understands her rights and that she fully understands the contents and legal
effects of the foregoing Antenuptial Agreement.

Dianne additionally admitted that each party attached financial statements to the premarital

agreement and that she had no reason to doubt the accuracy of Shelby’s statement. Dianne’s

financial statement indicated that she had a net worth of approximately $1,500,000.

4
Regarding the characterization of certain property, Dianne testified that the Little

Rock marital home, the Hot Springs lake house, the adjacent lake house lots in Hot Springs,

the commercial property in Hot Springs, and the new “party barge” boat bought by Shelby

using their previous “party barge” boat as a trade-in were marital property. She claimed

that the timberland, her Mercedes vehicle, and her Merrill Lynch account were her

nonmarital property. She did, however, acknowledge that Shelby had his own nonmarital

Merrill Lynch account and that she was not claiming any interest in his vehicle or the new

Little Rock lot he purchased to build a new home.

Shelby testified that the parties entered into the premarital agreement voluntarily,

and Dianne never expressed any concern to him in signing it. He further denied that he

ever revoked the agreement. Regarding the division of property, Shelby offered two

exhibits clearly listing what he considered marital property subject to an equal division and

his nonmarital property under the terms of the premarital agreement. Pertinent to this

appeal, the nonmarital list included the following:

• Lot located at 27 Orle Circle, Little Rock,

• Merrill Lynch accounts,

• Regions Bank Checking account,

• Any other separate bank and trust accounts,

• Fryerwood Farm,

• Commercial lots in Hot Springs,

• Party Barge,

• 2018 GMC Yukon,

5
• Various household furnishings and other personal property located in the Parker
Point residence (the lake house in Hot Springs), and

• Various household furnishings and other personal property located in the Carmel
Drive residence (the marital home in Little Rock).

Finally, regarding M.W., Shelby admitted that he pays for M.W.’s education and

would continue to do so as long as he was able to do so and had “final say as to his school[.]”2

He went on to state that he was “willing, barring some catastrophic event, and if [he could]

have final say, [he was] willing to pay 100% of [M.W.’s] care and support from now, all the

way through college.”

The premarital agreement was introduced into evidence and provides the following

relevant provisions to the issues on appeal:

5. Upon Divorce. The parties hereby agree that in the event the marriage
between the Bride and Groom shall end in divorce, the Bride and the Groom shall
equally divide all property interests which they have acquired in their joint names. It is the
understanding of the Bride and Groom and it is their agreement that the Bride and
Groom may from time to time acquire properties in their joint names. In addition,
the Bride and Groom through the fruits of their own labor may acquire assets and property in
their individual names. In the event of a divorce of the parties, all property jointly held as
tenants in common, tenants by the entirety, or joint tenants with rights of survivorship shall be
divided equally between the Bride and the Groom. Funds or property accumulated during
marriage shall not include any interest of one another in the plan accounts in the
Plan, appreciation of assets owned by a party and acquired prior to marriage or
income attributable to such property, or any asset owned individually or in trust by
the Bride or Groom. It is expressly understood that Bride shall have no interest in
and to any qualified retirement plan benefits (or IRA benefits) of the Groom accrued
prior to or during marriage, including any earnings allocated to the account of
Groom during marriage. Likewise, the Groom shall have no interest in and to any
qualified retirement plan benefit or IRA of the Bride accrued prior to or during
marriage, including future earnings thereon. The parties have discussed what a
reasonable provision for support of one another would be in the event of a divorce.
The Bride and Groom acknowledge and stipulate that they have skills and talents
2
The record indicates that M.W. attends a private school, Little Rock Christian
Academy.
6
which would enable each to be employed on a self-sufficient basis and/or they
individually own or have access to assets sufficient to support themselves.

6. Household Furnishings. The Groom currently owns furniture, household
furnishings, bric-a-brac, china, silver, objects of art, and miscellaneous household
personal effects (“Household Furnishings”) which he intends to move into the
personal residence (“Marital Residence”) to be acquired by the Bride and Groom.
Likewise, the Bride currently owns Household Furnishings which she intends to
contribute to the common household. The Groom and the Bride will each prepare
a list identifying the items of Household Furnishings which they intend to contribute
to their common household.

The Bride and Groom stipulate that each will continue to own as separate
properties the Household Furnishings which they contribute to the common
household.

....

7. Purchase of Residence. The Groom currently owns a residence and the
Bride currently owns a separate residence. The Groom and the Bride agree that they
will enter into a contract to purchase a new residence into which they will transfer
their household furnishings. The Marital Residence will be owned by the Groom and Bride
as equal tenants in common. The Groom and Bride agree to contribute the same
amounts to the purchase of the Marital Residence.

....

12. Separate Property. Except as herein otherwise provided, each of the
parties shall have the absolute right to manage, dispose of, or otherwise deal with any
property now separately owned, or hereafter separately acquired, in any manner
whatsoever.

13. Joint Tenancy Property. Real property acquired by joint tenancy during
the marriage shall be divided by the statutory laws in force and effect in the State of
Arkansas.

14. Disclosure of Facts. Bride and Groom acknowledge that the present
approximate net worth of each has been fully disclosed one to the other pursuant to
the attached Exhibit A and B, that each has given consideration to these facts, that
each has had the opportunity to seek advice of independent counsel, and that each is
entering into this Agreement freely and with a full understanding of its provisions.

The parties each acknowledge that he or she is, to his or her satisfaction, fully
acquainted with the means and resources of the other party and each waives any right
7
to disclosure beyond that contained herein. Each of them have ascertained and
weighed all the facts, conditions and circumstances likely to influence his or her
judgment herein; all matters set out here as well as all questions pertinent hereto have
been fully and satisfactorily explained to each of them; each has given due
consideration to such matters and questions; each of them clearly understands and
consents to all the provisions hereof.

Each party acknowledges that the amounts he or she is entitled to receive
under this Agreement during the marriage (in respect to support, for example) or in
the event of the parties’ divorce or legal separation or death while the parties are
married is much less than the value that might be received if the parties had not
entered into this Agreement.

(Emphasis added.)

At the conclusion of the trial, the parties indicated that they anticipated they could

come to some agreement regarding the division of certain personal property, and the circuit

court granted the parties an additional two weeks to do so. It further instructed that the

parties may submit any posttrial briefs for the circuit court’s consideration. Both Dianne

and Shelby filed posttrial briefs as instructed on the same date, May 28, 2019. In her posttrial

brief, Dianne argued that the premarital agreement was invalid because she was under

extreme duress at the time of its execution. Dianne argued that this duress was caused by

the suicide of her brother, the frequent disappearances of her daughter (M.W.’s mother) for

months at a time, and the pressure of predestination wedding arrangements to Barbados.

She further argued that the premarital agreement was unconscionable and inequitable

because the agreement does not provide for anything but an equal division of marital

property, that she did not have the financial means to provide for the parties’ son, and Shelby

had been able to increase his net worth since he continued to work during the marriage.

Finally, Dianne asked that the circuit court require Shelby to maintain life insurance for the

benefit of M.W. until he reaches the age of majority.
8
In Shelby’s posttrial brief, he argued that the agreement was valid and enforceable

pursuant to Arkansas Code Annotated section 9-11-402. He explained that Dianne had

voluntarily executed the premarital agreement, and the premarital agreement had never

been amended or revoked. He further disagreed with Dianne’s argument that the premarital

agreement was unconscionable and alleged that Dianne could not prove any of the factors

enumerated in Arkansas Code Annotated section 9-11-406 (Repl. 2015) to invalidate the

agreement.

In its divorce decree, filed on August 20, 2019, the circuit court specifically made

the following relevant findings:

1) Plaintiff is granted a divorce from Defendant based on the grounds in her
pleadings. Corroboration was waived.

2) The parties shall share joint legal custody of their minor son, MW. Primary
physical custody is vested in the Plaintiff.

....

9) These parties were married on October 21, 1997 and have been separated for
over eighteen months. Prior to their marriage, the parties entered into a
prenuptial agreement (the “Agreement”). Plaintiff asks that I set it aside. I
decline to do so for the following reasons:

A party who challenges a premarital agreement that was voluntarily executed
must prove all the following factors to invalidate the agreement:

(a) the agreement was unconscionable when it was executed;

(b) before execution of the agreement, that party was not provided a fair and
reasonable disclosure of the property or financial obligations of the other
party;

(c) before execution of the agreement, that party did not voluntarily and
expressly waive after consulting with legal counsel, in writing, any right

9
to disclosure of the property or financial obligations of the other party
beyond the disclosure provided; and

(d) before execution of the agreement, that party did not have, or reasonably
could not have had, an adequate knowledge of the property or financial
obligations of the other party.

Plaintiff cannot prove any of these factors.

10) Plaintiff did not allege that the Agreement was unconscionable, nor did she
present any evidence indicating that there existed a gross inequality of
bargaining power or that she did not comprehend the provision in question.
When she signed the Agreement and married Defendant, Plaintiff was retired
and had a net worth of over $1.5 million. (Pl. Ex. 1 at 16). She was
represented by able counsel, who “informed and counseled [Plaintiff] in
regard to the contents and legal effect” of the Agreement, including “the
rights and privileges of a wife under the laws of the State of Arkansas and the
effect of this Agreement upon those rights and privileges.” (Pl. Ex. 1 at 12).
Plaintiff’s attorney affirmed that Plaintiff “fully understands her rights and that
she fully understands the contents and legal effects” of the Agreement. (Pl.
Ex. 1 at 12). Accordingly, there is no evidence indicating the Agreement was
unconscionable.

11) Plaintiff was well represented by able counsel at the time she signed the
agreement. Defendant fully disclosed his assets to Plaintiff. Plaintiff’s
complaint that certain assets have appreciated in value over time must also fail
because she had adequate knowledge of the assets when she signed the
Agreement. The Agreement was and remains valid in all respects. Because
the Agreement is valid, it controls almost all questions of property distribution
and marital support.

12) The parties agree that their son was given certain bronzes and that those items
are not marital property, but rather belong to their son. Unless the parties are
able to agree otherwise, all other joint marital personal property shall be sold
and the proceeds distributed equally between the parties. The parties must
either agree to the distribution of personal property by August 30, 2019 at
noon, or shall begin preparations for the sale of personal property.

13) Each party shall maintain all insurance they currently have on their son. Defendant
shall buy a life insurance policy on his own life, with the parties’ son made the
beneficiary, with a death benefit of $500,000. Defendant shall retain this policy until
their son attains the age of 21.

10
14) Defendant shall pay child support to Plaintiff for the benefit and support of
their son in the amount of $1904.00 per month. Defendant shall also be
responsible for all educational, medical, and extracurricular costs associated
with MW, which are not otherwise covered by insurance or scholarship.
Defendant volunteered to make these additional payments. Additionally, he
is in the better financial position to be responsible for all such costs.

15) Defendant is the owner of certain commercial lots and shall continue to own them as his
sole and separate property.

16) The parties own homes in Little Rock and in Hot Springs. Because of the
prenuptial agreement controls this property division, I cannot award the Little
Rock home to the Plaintiff absent an agreement from the Defendant.
However, I can offer that the Plaintiff shall have the use and control of the
Little Rock house so long as MW is a minor. Once MW reaches his majority,
unless the parties have agreed that Plaintiff may keep the house, it shall be sold
and the proceeds divided equally between the parties. Plaintiff will be solely
responsible for payment of the utilities and maintenance for the home. The
Hot Springs home shall be sold and the proceeds divided between the parties
after payment of all costs associated with the sale. If the parties are unable to
agree on the realtor for the sale of the Hot Springs house, I will choose the
realtor.

(Emphasis added and footnotes omitted.) This appeal followed.3

II. Standard of Review

On appeal, this court reviews divorce cases de novo on the record. Taylor v. Taylor,

369 Ark. 31, 250 S.W.3d 232 (2007). Moreover, we will not reverse a circuit court’s finding

of fact in a divorce case unless it is clearly erroneous. Id. A finding is clearly erroneous

when the reviewing court, on the entire evidence, is left with a definite and firm conviction

that a mistake has been made. Chekuri v. Nekkalapudi, 2020 Ark. 74, 593 S.W.3d 467. We

3
Shelby filed a motion to modify and clarify the circuit court’s rulings on September
5, 2019, pursuant to Arkansas Rule of Civil Procedure 60(a). However, our record does
not reflect that the circuit court ever ruled on this motion nor did either party appeal from
such a ruling. Moreover, both parties abandoned any pending but unresolved claims in
their notice of appeal and notice of cross-appeal.
11
also give due deference to the circuit court’s determination of the credibility of the witnesses

and the weight to be given to their testimony. Id.

III. Premarital Agreement

Arkansas law has long recognized the validity of premarital agreements. Franks v.

Franks, 2018 Ark. App. 266, 548 S.W.3d 871. Parties contemplating marriage may, by

agreement, fix the rights of each in the property of the other differently than established by

law. Banks v. Evans, 347 Ark. 383, 64 S.W.3d 746 (2002). The Arkansas Premarital

Agreement Act, codified at Arkansas Code Annotated sections 9-11-401 to -413 (Repl.

2015), provides that a premarital agreement is an agreement between prospective spouses

made in contemplation of marriage, to be effective upon marriage. Ark. Code Ann. § 9-

11-401(1). It must be in writing and signed and acknowledged by both parties, and it is

enforceable without consideration. Ark. Code Ann. § 9-11-402. The parties may contract

regarding, among other things, their property rights and the disposition of property upon

marital dissolution, but the right of a child to support may not be adversely affected by a

premarital agreement. Ark. Code Ann. § 9-11-403. A premarital agreement becomes

effective upon marriage, and after marriage, a premarital agreement may be amended or

revoked only by a written agreement signed by the parties. Ark. Code Ann. § 9-11-404 to

-405. With regard to the enforceability of such agreements, Arkansas Code Annotated

section 9-11-406 provides, in part, as follows:

(a) A premarital agreement is not enforceable if the party against whom
enforcement is sought proves that:

(1) that party did not execute the agreement voluntarily; or

12
(2) the agreement was unconscionable when it was executed and, before
execution of the agreement, that party:

(i) was not provided a fair and reasonable disclosure of the property or financial
obligations of the other party;

(ii) did not voluntarily and expressly waive after consulting with legal counsel, in
writing, any right to disclosure of the property or financial obligations of the other
party beyond the disclosure provided; and

(iii) did not have, or reasonably could not have had, an adequate knowledge of
the property or financial obligations of the other party.

Although Dianne challenged the validity of the premarital agreement at trial under section

9-11-406, i.e., that she did not execute the agreement voluntarily or that the agreement was

unconscionable, the circuit court rejected her arguments and found that she failed to prove

any of these elements and that the agreement was valid and enforceable.

IV. Dianne’s Cross-Appeal

Because the disposition of Dianne’s cross-appeal would be dispositive of Shelby’s

issues on appeal if successful, we address it first. We initially note that Dianne has abandoned

the specific arguments she pled and presented at trial as grounds for the premarital agreement

to be set aside. She has abandoned her argument that she did not execute the agreement

voluntarily, and she has abandoned her argument that the agreement was unconscionable.

Instead, Dianne changes course and argues for the first time in her cross-appeal that the

circuit court erred in finding that the premarital agreement is valid because the agreement

lacks the required statutory formalities. Dianne more specifically argues that although she

signed the premarital agreement and the agreement purports to be acknowledged by a

notary, two of the four notary acknowledgments lack a visible notary seal on the

13
photographic copy of the agreement admitted at trial. Therefore, she claims that the circuit

court should have found the premarital agreement to be invalid for this facial defect.

Our appellate courts have repeatedly held that appellants are precluded from raising

arguments on appeal that were not first brought to the attention of the circuit court. Myers

v. McCall, 2009 Ark. App. 541, 334 S.W.3d 878. Issues raised for the first time on appeal

will not be considered because the circuit court never had an opportunity to rule on them.

Id. In this case, Dianne argued below that the premarital agreement was invalid and

unenforceable because it was not voluntarily entered into and that the agreement was

unconscionable. Dianne never raised the issue to the circuit court that the agreement was

invalid because a notary seal was not properly affixed to the document. Thus, we are

precluded from reaching the merits of Dianne’s cross-appeal and affirm the circuit court’s

findings that the premarital agreement is valid and enforceable.

V. Shelby’s Direct Appeal

A. Shelby’s Nonmarital Property

We now address Shelby’s arguments on direct appeal. Shelby first argues that the

circuit court erred by failing to award him his separate nonmarital property. At trial, both

parties introduced exhibits that contained lists of property that each contended were his or

her respective nonmarital property. Shelby listed the following property in his brief that he

contends should have been awarded to him: lot located at 27 Orle Circle, Little Rock;

Merrill Lynch accounts; Regions Bank checking account; Fryerwood Farm; commercial

lots in Hot Springs; a party barge; a 2018 GMC Yukon and various household furnishings

14
and personal property.4 Dianne contested Shelby’s characterization of some of this property

as nonmarital. For whatever reason, the divorce decree only specifically mentions and

disposes of the commercial lots in Hot Springs.5 Paragraph 15 of the decree specifically

states that “Defendant [Shelby] is the owner of certain commercial lots, and shall continue

to own them as his sole and separate property.” Shelby argues that the circuit court’s failure

to designate who was entitled to the remaining list of property in the decree was error and

requests that we remand for the circuit court to make further findings consistent with this

opinion. We agree.

According to Arkansas Code Annotated section 9-12-315(a)(3)(A) (Repl. 2015),

“[e]very such final order or judgment shall designate the specific real and personal property

to which each party is entitled.” Generally, in the absence of a premarital agreement

otherwise and in accordance with Arkansas Code Annotated section 9-12-315(a)(1), at the

time of entry of a divorce decree, the circuit court shall equally distribute all marital property

one-half to each party unless it is determined that such a distribution would be inequitable;

if the property is not divided equally, then the circuit court must state the reasons and basis

for not doing so, and the basis and reasons should be recited in the order entered in the

matter. Chambers v. Chambers, 2017 Ark. App. 429, 527 S.W.3d 1. All nonmarital property

shall be returned to the party owning it prior to marriage unless the circuit court makes

4
Neither party appeals the distribution of the other assets, and this opinion is limited
to the assets listed herein. Further, each party has specifically abandoned any pending and
unresolved claims in their notices of appeal.
5
Shelby’s list includes “commercial lots in Hot Springs.” The decree only describes
“commercial lots.” Neither party argues that these are not the same commercial lots.
15
another division it deems equitable, after taking into consideration the factors set forth in

subsection (a)(1) and stating in writing its basis and reasons for not returning the property

to the party who owned it at the time of the marriage. Ark. Code Ann. § 9-12-315(a)(2).

Of course, as is the case here, parties may fix the rights of each in the property of the other

differently than is established by law through the execution of a valid premarital agreement

Banks, supra. The circuit court below found that the premarital agreement was valid and

enforceable, and we have agreed as set forth above. Therefore, the question raised by Shelby

is whether the circuit court designated the specific real and personal property to which each

party was entitled in the divorce decree as required by section 9-12-315(a)(1) after it

considered the terms of the premarital agreement and established law.

Here, the circuit court correctly acknowledged that the premarital agreement was

valid and “controls almost all questions of property distribution and marital support.” The

circuit court awarded Shelby the commercial lots and stated that the lake house should be

sold and that the proceeds be divided equally.6 Finally, the circuit court stated, “[u]nless the

parties are able to agree otherwise, all other joint marital personal property shall be sold and

the proceeds distributed equally between the parties. The parties must either agree to the

distribution of personal property by August 30, 2019 at noon, or shall begin preparations

for the sale of personal property.” However, the decree does not specifically mention who

is entitled to the real and personal property listed in Shelby’s point on appeal and as was

6
The circuit court’s disposition of the marital home is discussed in subsection C
below.
16
presented as an exhibit to the circuit court at trial. Shelby filed a motion to modify and

clarify the ruling; however, the motion was not ruled on by the circuit court.

Dianne responds that further findings are unnecessary and compares the facts of this

case to those in Friedly v. Friedly, 2020 Ark. App. 167, 597 S.W.3d 135. We hold that

Friedly is distinguishable. There, Adrienne Friedly, like Shelby here, argued that the circuit

court erred by failing to designate some of the property as marital or nonmarital. However,

the divorce decree ordered that all real property be sold and ordered the parties to walk

through the marital home and to divide the personal property. The circuit court further

stated that if the parties could not agree, the personal property would be sold and that the

proceeds be divided. We held that there was no error because although the circuit court

did not initially expressly designate the disputed property as either marital or nonmarital,

the property was eventually designated as marital property in the order by its inclusion with

marital assets to be sold and the proceeds divided. Unlike Friedly, the circuit court here only

ordered the “joint marital personal property” be sold. However, it is unclear which property

the circuit court designated as marital or nonmarital after applying the terms of the premarital

agreement. In other words, the circuit court failed to designate the specific real and personal

property to which each party is entitled. Therefore, we reverse and remand for the circuit

court to make further findings consistent with this opinion in order to satisfy the mandate

articulated in Arkansas Code Annotated section 9-12-315(a)(3)(A).

B. Life Insurance Policy

Next, Shelby argues that the circuit court erred by ordering him to maintain a life

insurance policy for the benefit of his minor child, in an amount in excess of his total child

17
support obligation, until his child turns twenty-one years old. In the divorce decree, the

circuit ordered Shelby to buy and retain a life insurance policy on his own life, with M.W.

made the beneficiary, with a death benefit of $500,000 until M.W. attained the age of 21.

Shelby specifically argues that the court lacked authority to order him to purchase life

insurance other than as a guarantee for child support payments pursuant to Arkansas Code

Annotated section 9-12-312(c)(1) and that the order herein was not as a guarantee of child

support. Shelby further argues that even if the court intended the purchase of life insurance

to be as a guarantee for child support, the amount of life insurance and the term of the

policy are excessive and improper.

A review of the record reflects that Dianne first requested the circuit court to order

Shelby to purchase and retain a life insurance policy in her posttrial brief. After devoting

virtually all of the brief to her arguments regarding the invalidity and unconscionability of

the premarital agreement, Dianne adds the final paragraph: “Finally, due to the age of the

parties, Mrs. Woods is asking [the] Court to order Mr. Woods to maintain life insurance for the benefit

of their minor son until he reaches the age of majority.” Dianne does not set forth any justification

for the life insurance other than “due to the age of the parties.” Dianne did not request any

particular amount of life insurance in her posttrial brief and did not allege that the life

insurance policy should be required as a guarantee for child support. Further, since this

issue first arose in her posttrial brief, no evidence was presented at trial regarding whether a

life insurance policy was appropriate under the particular circumstances of this case.

Although the premarital agreement did not require Shelby to purchase and retain a

life insurance policy, it is settled law in this state that the duty of child support cannot be

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bartered away permanently to the detriment of the child. Storey v. Ward, 258 Ark. 24, 523

S.W.2d 387 (1975); Ark. Code Ann. § 9-11-403. The circuit court always retains

jurisdiction and authority over child support as a matter of public policy. McGee v. McGee,

100 Ark. App. 1, 262 S.W.3d 622 (2007). Arkansas Code Annotated section 9-12-312(c)(1)

provides that “[w]hen the order provides for payment of money for the support and care of

any children, the court, in its discretion, may require the person ordered to make the payments

to furnish and file with the clerk of the court a bond or post security or give some other

guarantee such as life insurance in an amount and with such sureties as the court shall direct.”

(Emphasis added.) Moreover, we have previously upheld a circuit court’s order directing a

father, who was ordered to pay child support and alimony, to maintain a life insurance policy

to secure both obligations. Rudder v. Hurst, 2009 Ark. App. 577, 337 S.W.3d 565.

Therefore, we cannot agree with Shelby that the circuit court lacked the authority to require

the purchase of a life insurance policy under an appropriate set of circumstances as a

guarantee pursuant to section 9-12-312. However, we do agree with Shelby that the court

overreached its authority based on the record herein and remand the issue for

reconsideration.

Shelby further argues that, even if he was required to purchase life insurance to

guarantee his child support payments, requiring a $500,000 life insurance policy was

excessive because, absent extenuating circumstances, his child-support obligation would at

best total $177,072. However, Shelby ignores the unspecified amount the circuit court

ordered him to pay for M.W.’s education, medical, and extracurricular needs and costs in

his calculation. That said, we agree with Shelby that the circuit court lacked the authority

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to require him to retain any life insurance policy as a guarantee until M.W. turned twenty-

one years old because child support under these circumstances terminates by operation of

law, at the latest, at the end of the school year after the minor child reaches nineteen years

of age. See Ark. Code Ann. § 9-14-237(a)(1).

In summary, we reverse and remand for the circuit court to reconsider this issue

anew. On remand, the circuit court may reconsider whether a life insurance policy is

necessary and appropriate under the particular circumstances of this case to guarantee

Shelby’s payments for M.W.’s care and support and if yes, the terms and amounts of any

such life insurance policy as permitted under Arkansas law.

C. Possession of the Marital Home

Finally, Shelby argues that the circuit court erred by awarding Dianne possession of

the marital home until the parties’ minor child reaches the age of majority when the parties’

premarital agreement requires the property to be divided equally. Dianne responds that the

circuit court did not err because a court is permitted to provide for “M.W.’s care and support

(including maintaining his current home)” as was equitable and just under these

circumstances. We agree with Shelby.

We acknowledge that we have held that a circuit court has wide discretion in

awarding either party the possession of the home, and the award of possession of the home

is subject to such terms as the court deems to be “equitable and just.” Gilliam v. Gilliam,

2010 Ark. App. 137, at 9, 374 S.W.3d 108, 115; Schumacher v. Schumacher, 66 Ark. App. 9,

986 S.W.2d 883 (1999); see also Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989)

(holding that a chancellor’s decision to grant “temporary” possession of the marital home to

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a spouse pending sale within six months was equitable and did not require the chancellor to

state its basis and reasons for doing so as required for an unequal division of marital property).

However, none of those cases involved a valid premarital agreement controlling issues of

property division.

Here, the parties executed an enforceable premarital agreement that governed the

disposition of the marital home. Remember, parties contemplating marriage may, by

agreement, fix the rights of each in the property of the other differently than established by

law. Banks, supra. Further, the parties may contract regarding, among other things, their

property rights and the disposition of property upon marital dissolution like Shelby and

Dianne did here. Ark. Code Ann. § 9-11-403. In its decree, the circuit court even

acknowledged that the premarital agreement controlled the “property division” of the

marital home and that it “[could not] award the Little Rock home to [Dianne] absent an

agreement from [Shelby.]”

To that end, paragraph 7 of the premarital agreement provided that Shelby and

Dianne had currently owned their own separate residences at that time and that they would

enter into a contract to purchase a new residence (the marital residence). “The Marital

Residence will be owned by [Shelby] and [Dianne] as equal tenants in common.” Further,

paragraph 5 of the premarital agreement stated that “[i]n the event of a divorce, all property

jointly held as tenants in common . . . shall be divided equally between [Shelby] and

[Dianne.]” Clearly, the agreement contemplates that in the event of divorce, any property

held by the parties as tenants in common, such as the marital residence, must be sold and

the proceeds divided equally.

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Yet, contrary to the premarital agreement, the circuit court ordered that as part of

the property division, Dianne would retain exclusive “use and control” of the home as long

as M.W. is a minor. The circuit court went on to state that once M.W. reached the age of

majority, the home should be sold and equally divided “unless the parties have agreed that

[Dianne] may keep the home[.]” The circuit court failed to cite any authority or provide

any further explanation for its extended delay in dividing this marital asset in contravention

of the premarital agreement. Instead, the circuit court failed to enforce the clear terms of

the premarital agreement in its “property division” and granted Dianne rent-free possession

of the marital home for approximately seven years.

Moreover, even if we were to hold that the circuit court had the authority to make

such a decision under the provisions of the premarital agreement, we cannot say that such

an award was “equitable and just” under the circumstances before us. Unlike Gilliam, the

evidence presented at trial indicated that, in addition to her nonmarital assets which were

valued at $1.5 million at the time of the execution of the premarital agreement, Dianne

would receive approximately $1,000,000 as her share from the sales of the marital home and

the lake house from which she could use to establish a new home for herself and M.W.

Additionally, no evidence was presented that M.W. suffered from any disability necessitating

him to remain in the marital home as in Gilliam. Because we are left with a definite and

firm conviction that a mistake has been made under the circumstances of this case, we must

reverse and remand the circuit court’s award of the marital home and order that it be

disposed of pursuant to the terms of the premarital agreement.

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D. Conclusion

In summary, concerning the items of property requested by Shelby, we reverse and

remand for the circuit court to make further findings consistent with this opinion in order

to satisfy the mandate articulated in Arkansas Code Annotated section 9-12-315(a)(3)(A).

We reverse the circuit court’s order requiring Shelby to maintain a $500,000 life insurance

policy with M.W. as a beneficiary until age twenty-one and remand for the circuit court to

reconsider whether a life insurance policy is necessary and appropriate under the particular

circumstances of this case to guarantee Shelby’s payments for M.W.’s care and support and,

if yes, the terms and amounts of any such life insurance policy as permitted under Arkansas

law. Finally, we reverse and remand the circuit court’s decision to allow Dianne possession

of the marital residence and order the residence disposed of pursuant to the premarital

agreement.

Reversed and remanded on direct appeal; affirmed on cross-appeal.

HARRISON and KLAPPENBACH, JJ., agree.

Dover Dixon Horne PLLC, by: Gary B. Rogers and Adrienne M. Griffis, for

appellant/cross-appellee.

Cullen & Co., PLLC, by: Tim Cullen, for appellee/cross-appellant.

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