Fry v. Fry

Cite as 2015 Ark. App. 339

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-743

Opinion Delivered: May 20, 2015
SANDRA JEAN FRY
APPELLANT APPEAL FROM THE HEMPSTEAD
COUNTY CIRCUIT COURT
V. [NO. 29DR13-221-1]

JIMMY WAYNE FRY HONORABLE RANDY WRIGHT,
APPELLEE JUDGE

AFFIRMED

WAYMOND M. BROWN, Judge

This appeal involves the division of marital property following the parties’ 2014

divorce. Sandra Jean (Flowers) Fry brings this appeal from the Hempstead County Circuit

Court’s decree ending her marriage to Jimmy Wayne Fry. For reversal, Sandra Fry argues

that the circuit court erred by (1) disregarding the parties’ prenuptial agreement when it

considered her pre-marital inheritance in diminishing her marital property rights; (2)

making an unequal division of property on the basis of inheritance property; and (3)

misapplying the relevant factors for division of marital property pursuant to Arkansas Code

Annotated § 9-12-315(a)(1)(A)(i)–(ix). Because we find no error in the circuit court’s

decision, we affirm.

The parties separated in August 2013 after twenty-two years of marriage, and

Sandra Fry filed her petition for divorce on September 11, 2013. Previously the parties

had married in 1981 and divorced in 1983. Prior to their second marriage, the parties
Cite as 2015 Ark. App. 339

executed a “Mutual Disclaimer of Interest,” agreeing that any inheritance received from

the parties’ parents would remain separate property. Below is the portion of the agreement

at issue in this appeal.

Husband waives, releases, foregoes, and disclaims all of his rights in any and
all property, real, personal, or mixed, wheresoever situated, which Wife is or
may become seized or possessed, either by gift or inheritance from W.D.
Flowers, Jr. or Daris Jean Flowers and expressly waives all right to inherit
from Wife any of such property under the laws of any and all States of the
United States, and agrees that Wife shall have the right to dispose of all of
said property by Will.

In 2012, W.D. Flowers died leaving his daughter, Sandra Fry, as the sole

beneficiary of his approximately $600,000 estate. At a bench trial on May 12, 2014, she

testified that she was seeking an equal division of marital property and introduced the

premarital contract without objection. Conversely, appellee introduced evidence of

account values and certain appraised portions of real estate owned by appellant, over her

objection, as well as her inheritance from her father, requesting the circuit court make an

unequal property division. The court granted appellant’s petition for divorce on the basis

of general indignities, and in an order dated May 15, 2014, divided the property as

follows:

In consideration of all the evidence presented, and for the reasons
stated above, the Court awards Sandra Fry her Roth IRA, her IRA, the
Arkansas Diamond account, the Ameriprise account, her APERS
retirement, any interest she may have in a personal service corporation of
which evidence was presented showing she earned approximately $6,000
per year, subject to the provisions set out below.
The Court awards Jimmy Fry his investment accounts, including the
Allstate account, the Allstate IRA, Prudential IRA and the Lincoln account.
The Court further awards the home at 1510 Fairway Dr., Hope, Arkansas to
Jimmy Fry and he is to assume the mortgage on the home and hold Sandra
Fry harmless from any liability on the home. . . . The Court further finds
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that Sandra Fry shall reimburse Jimmy Fry $5,493.15 as expenses incurred in
upkeep on the house. Additionally, Sandra Fry shall pay Jimmy Fry $6,500
representing one-half the difference in contributions made toward purchases
of real estate by the parties during their marriage. Sandra Fry is further
ordered to reimburse Jimmy Fry $20,000 which represents one-half the
amount Sandra Fry withdrew from the deferred retirement account at the
time the parties separated. . .
The Court further finds by granting Sandra Fry her APERS account
and by granting Jimmy Fry his retirement and investment and the marital
home with equity of $30,000, it is equitable further that Sandra Fry pay to
Jimmy Fry the amount of $21,500, which represents one-half of the value of
her Roth IRA, IRA, Arkansas Diamond account and Ameriprise account.

Sandra Fry appealed.

We review cases dividing marital property de novo.1 However, we will not reverse

a finding of fact by the circuit judge, including whether certain property is marital

property, unless it is clearly erroneous.2 A finding is clearly erroneous when, although

there is evidence to support it, the reviewing court on the entire evidence is left with a

definite and firm conviction that a mistake has been committed.3

Sandra Fry advances three basic and interrelated arguments for reversal: (1) that the

circuit court disregarded the premarital contract when it divided the parties’ property; (2)

that it also erred in making an unequal property division; and (3) that the statutory factors

did not support an unequal division. Conversely, appellee responds that the circuit court,

1
Horton v. Horton, 2011 Ark. App. 361, 384 S.W.3d 61 (citing Gillam v. Gillam, 2010 Ark.
App. 137, 374 S.W.3d 108).
2
Hargrove v. Hargrove, 2015 Ark. App. 45, 453 S.W.3d 683 (citing Scott v. Scott, 86 Ark.
App. 120, 161 S.W.3d 307 (2004)).
3
Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2000) (quoting Smith v. Parker, 67
Ark. App. 221, 998 S.W.2d 1 (1999)).
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in fact, acknowledged and upheld the contract, that the property division was equal, and

that even if it had been unequal, the division was supported by relevant statutory factors.

Appellant’s first argument is somewhat perplexing. At points throughout her brief

she argues that the circuit court disregarded the premarital contract, directly violated the

terms of the contract, or maybe infringed on the intent of the contract. Perhaps the easiest

argument to discern is shown when she states that the “heart of this appeal is that the trial

court erred in disregarding that agreement, by only acknowledging its existence yet

deviating from its core.” We find no error.

The main problem with appellant’s argument is that it rests on the assumption that

the circuit court unequally divided the property, which is an inaccurate statement that we

will address below. While we agree that the circuit court did little beyond acknowledging

the existence of the contract, we cannot say that it deviated from the core of that contract

for the simple reasons that the court did specifically note the existence of the contract in

its order and, more importantly, it did not divide any of Sandra Fry’s inheritance. In the

instant case, appellee waived his right to receive any inheritance from his former wife’s

father. “Waiver” is the voluntary abandonment or surrender by a capable person of a right

known by him to exist, with the intent that he shall forever be deprived of its benefits,

and it may occur when one, with full knowledge of the material facts, does something that

is inconsistent with the right or his intention to rely upon it. 4 Furthermore, it is our duty

4
Taylor v. Hamilton, 90 Ark. App. 235, 205 S.W.3d 149 (2005).
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to enforce contracts as they are written and in accordance with the ordinary meaning of

the language used and the overall intent and purpose of the parties.5

The plain language of the parties’ “Mutual Disclaimer of Interests” states that

appellee waives all interest in any property that appellant would have received from her

father. Therefore, he voluntarily abandoned any claim he would otherwise have had to

W.D. Flowers’s $600,000 estate. At the point that the circuit court awarded zero dollars

from that inheritance to appellee, it not only acknowledged the existence of the contract,

but actually enforced its validity. There is no error.

Further weakening the “heart” of Sandra Fry’s appeal, and in contravention of her

second argument, is the fact that the circuit court made an equitable division of property.

First, the language of the circuit court order demonstrates that the judge was intending to

make an equal distribution when he stated “it is equitable further that Sandra Fry pay to

Jimmy Fry the amount of $21,500.” A circuit court has broad powers to distribute

property in order to achieve an equitable distribution.6 We also note that our property

division statute, Arkansas Code Annotated § 9-12-315, does not compel mathematical

precision in the distribution of property; its overriding purpose is to enable the court to

make a division that is fair and equitable under the circumstances.7 Nevertheless, a study of

the property values distributed in the instant case, which we must accept as correct, shows

near mathematical precision. Subsequent to the divorce, appellant received the following:

5
Hancock v. Tri-State Ins. Co., 43 Ark. App. 47, 858 S.W.2d 152 (1993).
6
See Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).
7
Jones v. Jones, 2014 Ark. 96, 432 S.W.3d 36.
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Roth IRA $ 7,412.39

IRA 9,729.03

Ark. Diamond 30,000.00

Ameriprise 5,534.84

APERS Account 403,663.00

Thus, the total amount of assets distributed to Sandra Fry was $456,339.26. Appellee

received the following:

Allstate 40,770.05

Allstate (2) 58,079.84

Lincoln 60,513.46

Prudential 225,449.46

Marital Home 160,000.00

Although appellee’s total assets amount to $545,812.73, our analysis is not finished. As part

of the distribution, appellee has also been left the responsibility of paying for the couple’s

first mortgage, totaling $131,000, thus reducing his share of assets to $414,812.73. The

circuit court then adjusted certain aspects of the division to effectively equalize the amount

distributed to both parties.8 Appellee was awarded an additional $21,500 after the court

granted appellant her APERS retirement account, worth $403,663, and appellee the

$30,000 equity in the marital home. If we accept these figures as true, and we must

8
It further required appellant to reimburse appellee $6,500 as the difference between what
the two collectively contributed to marital home purchases, as well as an additional
$20,000 representing one-half of the amount that appellant withdrew from a deferred
retirement account when the parties separated. These awards balanced out assets that were
no longer in existence, and therefore, were not marital property for purposes of division.
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considering our standard of review, the net value received by appellant was $434,839.26,

and by appellee, $436,312.73. The difference in awards is almost nominal. Thus, there was

an equal distribution of the parties’ property.

Finally, even if our court were to find that there was an unequal distribution, we

would still affirm. A court’s unequal division of marital property will not be reversed

unless found to be clearly erroneous.9 The circuit court order meets the mandates

prescribed by Ark. Code Ann. § 9-12-315. The statutory factors our courts take into

consideration for distribution of marital property include: (i) length of the marriage; (ii)

age, health, and station in life of the parties; (iii) occupation of the parties; (iv) amount and

sources of income; (v) vocational skills; (vi) employability; (vii) estate, liabilities, and needs

of each party and opportunity of each for further acquisition of capital assets and income;

(viii) contribution of each party in acquisition, preservation, or appreciation of marital

property, including services as a homemaker, and; (ix) the federal income tax

consequences of the court’s division of property.10 The trial court must consider these

factors and state its reasons for dividing property unequally, but it is not required to list

each factor in its order nor to weigh all the factors equally.11

The circuit court discussed several of these factors in its order.

In considering the evidence presented, the parties have been married for 23
years as of the date of divorce and were previously married for 2 years when
they divorced in 1983. As it was stated by Sandra Fry they operated their
marriage as a team, even though each kept their earnings and savings

9
Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001).
10
Ark. Code Ann. § 9-12-315(a)(1)(A).
11
Keathley, supra.
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separately. They divided the expenses equally and were successful in their
marriage for a long time, and they accumulated some wealth during this
time. The Court notes that there was a Mutual Disclaimer of Interest
entered into by the parties prior to their second marriage. The Court finds
the length of time of the marriage and the timing of the divorce at this time
in the couple’s life as significant. The parties have both worked to
accumulate as a couple a nest egg that if taken together would enable them
to enjoy their retirements together. However, with the granting of the
divorce the wealth must be separated. The Court finds that it is apparent
Sandra Fry will continue to earn income from some work and that Jimmy
will not.

Hence, in reaching its decision, it is clear that the circuit court at least considered the

relevant statutory factors for distribution of marital property, specifically discussing factors

such as the length of the marriage, sources of income, contribution to the marriage, etc.

Again, we cannot say that the circuit judge clearly erred.

In summation, appellant Sandra Fry would like for us to believe that it is error for

the circuit court to note her inheritance in its order dividing property because of the

existence of the premarital contract. She is incorrect. The premarital contract required that

Jimmy Fry would not receive any of his wife’s inheritance from her father. He did not.

Thus, the contract was upheld, and the circuit court made an equal division of marital

property.

Affirmed.

ABRAMSON and GLOVER, JJ., agree.

Robert S. Tschiemer, for appellant.

Wilson, Walker & Short, by: Charles M. Walker, for appellee.

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