                               Cite as 2017 Ark. App. 13


               ARKANSAS COURT OF APPEALS
                                     DIVISION III
                                    No. CV-16-265
                                            Opinion Delivered   JANUARY 18, 2017

CYNTHIA INGRAM JORDAN                       APPEAL FROM THE OUACHITA
                                            COUNTY CIRCUIT COURT
                        APPELLANT           [NO. 52DR-04-457]
V.
                                            HONORABLE EDWIN KEATON, JUDGE
TIMOTHY ANDERSON JORDAN
                                            AFFIRMED
                           APPELLEE


                           DAVID M. GLOVER, Judge



      Cynthia and Timothy Jordan were divorced by “Agreed Divorce Decree” entered

on June 17, 2005. In April 2015, Cynthia filed a petition for modification of the divorce

decree, asking that Timothy’s payment of alimony to her be extended beyond the age

designated in their decree (62 1/2) and made permanent. On May 26, 2015, Timothy filed

a motion to dismiss the petition, contending that the court was without jurisdiction to

modify the alimony provision because it was agreed on by the parties as part of an

independent contract that was announced in open court and incorporated into the divorce

decree. Following a hearing on the motion, the trial court granted the motion to dismiss

by order entered on January 11, 2016. On January 29, 2016, Cynthia filed her notice of

appeal. We affirm.

      As her sole point of appeal, Cynthia contends the trial court erroneously interpreted

the divorce decree in this case when it ruled the award of alimony could not be modified.
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She subdivides this point into two subpoints: 1) “the circuit court had no proper basis for

utilizing a docket entry to supplement or vary the findings and orders contained in a properly

entered decree of divorce”; and 2) “the mere fact that the parties announced to the court

they had reached an agreement on what the court should include in the decree is not

tantamount to a separate, enforceable ‘property-settlement agreement’ under Arkansas law.”

We find no error.

       The “Agreed Decree of Divorce” provides in part,

       Property Settlement Agreement:
       ....
               8. Further based upon the agreement announced in open court, the plaintiff is
       ordered to pay permanent alimony to the defendant in the amount of $1,500.00
       weekly commencing Friday, May 6, 2005. The first payment shall be reduced by
       defendant’s weekly paycheck. The alimony shall be paid each and every week and
       shall terminate upon the happening of the first of any of the following events: (1)
       the death of either party, (2) the defendant, Cynthia Ingram Jordan, reaching the age
       of 62 and ½ years, or (3) the remarriage of the said defendant or the act of the said
       defendant cohabiting in the marital residence with a member of the opposite sex.
       The parties agree that said alimony is deductible on behalf of the plaintiff/payer and
       taxable to the defendant/recipient, and that both parties will report the said alimony
       payments as such in filing their individual income tax returns beginning with the tax
       year 2005 and continuing until the alimony is terminated under the terms mentioned
       hereinabove or by subsequent Order of this Court. In the event plaintiff misses any alimony
       payments or is delinquent in excess of thirty (30) days, then defendant may require
       that all future payments be made through the Circuit Clerk.

(Emphasis added.) The trial court’s docket entry provides in part,

       5/3/2005       FINAL HEARING – P/f appears w/ atty, Tim Womack. Def appears
                      w/ atty, T. Wineland. Parties reach agreement on certain issues and
                      read same into record. No minor child at time of divorce. Testimony
                      taken of parties and p/f’s witness, Mary E. Frey. P/f is granted an
                      absolute divorce on general indignities. Parties agreement re property
                      and debt is approved and is adopted as the order of the Court. Each
                      party acknowledges on the record their acceptance to the agreement
                      as announced today. Mr. Womack will prepare precedent.




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       At the hearing on Cynthia’s motion to modify, she took the position that the alimony

provision in the “Agreed Divorce Decree” was subject to modification because it was not

part of an independent contract signed by the parties but rather a mere stipulation agreed

upon by the parties and merged into the decree. Timothy, on the other hand, contended

that the parties’ property-settlement agreement was a separate and independent contract

between them that was incorporated into the decree but retained its independent,

contractual nature and was not subject to modification. In its order granting Timothy’s

motion to dismiss, the trial court noted that the decree contained a section labeled “Property

Settlement Agreement,” and that the terms of the agreement were set forth in paragraphs

four through thirteen of the decree. The alimony provisions of paragraph eight were thus

only a portion of the overall agreement. The trial court further explained in its order

granting the dismissal,

       The Property Settlement Agreement completely addresses all of the rights and
       liabilities of the parties. The settlement agreement was announced in Court and each
       party indicated that they understood and accepted the agreement as announced. The
       attorneys’ statements of the parties’ agreement on alimony, in announcing the same
       to the Court, was not a means of dispensing with proof on the alimony issue, but
       instead was a complete statement of the terms and conditions of the parties’ complete
       Property Settlement Agreement.

       In Linehan v. Linehan, 8 Ark. App. 177, 179-80, 649 S.W.2d 837, 838-39(1983), our

court quoted the supreme court in explaining that there are two major types of alimony

agreements and describing the differences between them:

             In Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954 (1953), the Arkansas
       Supreme Court distinguished between the two major types of agreements for the
       payment of alimony, stating:
                     Our decisions have recognized two different types of agreement for
             the payment of alimony. One is an independent contract, usually in writing,
             by which the husband, in contemplation of the divorce, binds himself to pay

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              a fixed amount or fixed installments for his wife’s support. Even though such
              a contract is approved by the chancellor and incorporated in the decree, as in
              the Bachus [v. Bachus, 216 Ark. 802, 227 S.W.2d 439] case, it does not merge
              into the court’s award of alimony, and consequently, as we pointed out in
              that opinion, the wife has a remedy at law on the contract in the event the
              chancellor has reason not to enforce his decretal award by contempt
              proceedings.
                      The second type of agreement is that by which the parties, without
              making a contract that is meant to confer upon the wife an independent cause
              of action, merely agree upon “the amount the court by its decree should fix
              as alimony”. . . A contract of the latter character is usually less formal than an
              independent property settlement; it may be intended merely as a means of
              dispensing with the proof upon an issue not in dispute, and by its nature it
              merges in the divorce decree.

In analyzing the facts before it in Linehan, our court rejected the husband’s argument that

the stipulated agreement could not qualify as an independent contract because it was not in

writing and was not signed by the parties. Our court reasoned,

       Oral stipulations made in open court which are taken down by the reporter and acted
       upon by the parties and court are valid and binding. Such stipulations are in the
       nature of a contract. It is not necessary that an agreed statement of facts, admitted
       by the parties to be true in open court, should be signed by the parties or their
       attorneys. Contractual stipulations affect the subject matter of the lawsuit. They deal
       with the rights or property at issue and are styled stipulations only because they occur
       in connection with the litigation.

       Id. at 180, 649 S.W.2d at 839 (citations omitted).

       We have reviewed the cases cited by both parties, and agree with Timothy that the

facts here are very similar to those in Linehan. There is no separate written agreement signed

by the parties, as was true in Linehan, but the “Agreed Divorce Decree,” “approved as to

form and substance” by counsel for both parties, states in its first paragraph that

       the parties announced to the Court, through their respective attorneys, that a
       settlement of all issues to be presented in this case had been reached, and based upon
       the same, and otherwise being well and sufficiently advised in the premises, and
       further based upon both parties announcing to the Court, individually, that he/she


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       understood all of the terms of the settlement agreement, THIS COURT DOTH
       FIND AND ORDER[.]

The decree designates with a separate heading the parties’ “Property Settlement

Agreement,” with paragraphs four through thirteen contained in that section. Paragraph

eight, as quoted previously, addresses alimony. The language throughout emphasizes the

parties’ agreement.

       While the trial court’s order granting dismissal does reference and quote from the

docket sheet, we find no significant conflict between the docket entry and what is expressed

in the decree itself, which was approved by both sides as to form and substance. With

respect to Cynthia’s contention that “the mere fact the parties announced to the court they

had reached an agreement on what the court should include in the decree is not tantamount

to a separate, enforceable ‘property settlement agreement’ under Arkansas law,” we note

the parties’ handling of their agreement in the instant case goes much further than Cynthia

describes. Here, the parties’ settlement of property issues is more clearly a negotiated

settlement of issues—set forth in a designated “property-settlement agreement” that the

parties intended to be binding—than a mere agreement to stipulate to some issues to avoid

putting on proof.

       Affirmed.

       WHITEAKER and BROWN, JJ., agree.

       Ronald L. Griggs, for appellant.

       Tripcony, May & Associates, by: James L. Tripcony, for appellee.




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