                                 Cite as 2015 Ark. App. 176

                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                       No. CV-14-36


LINDA FAY MARSTON, PATSY                          Opinion Delivered   March 11, 2015
ELLIFRITZ, WANDA GAIL GRAGG,
and DENNIS WAYNE TAYLOR                           APPEAL FROM THE CRAWFORD
                    APPELLANTS                    COUNTY CIRCUIT COURT
                                                  [NO. 17-CV-2012-424]
V.

                                                  HONORABLE GARY COTTRELL,
JAMES TAYLOR, DIANE CRIMS, and                    JUDGE
JOANN MORGAN
                     APPELLEES                    AFFIRMED



                            PHILLIP T. WHITEAKER, Judge


       This litigation involves a dispute between seven siblings over the distribution of the

proceeds of a sale of real property. The appellants, Linda Fay Marston, Patsy Ellifritz, Dennis

Taylor, and Wanda Gragg, appeal from an order of the Crawford County Circuit Court

awarding a money judgment in favor of the appellees, James E. Taylor, Diane Crims, and

Joann Morgan. The appellants assign error to the circuit court’s order awarding the judgment

and directing them to pay the judgment or face incarceration for contempt. As to the first

point, we find no error and affirm; as to the second point, we conclude that the issue is not

preserved for our review.
                                    Cite as 2015 Ark. App. 176

                                          I. Background

       Both the appellants and the appellees 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 complaint 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 of the sales

price of the property. Moreover, the court held each of the appellants in contempt for failing


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to 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

stated that the appellants 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,

2014 Ark. App. 143. 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 made. Id. We have reviewed the entire evidence in this

matter, and we are not convinced that a mistake was made or that the circuit court’s finding

was clearly erroneous.

       The circuit court received Gurtie’s medical records into evidence. Undisputedly,

Gurtie was diagnosed with Alzheimer’s and dementia. The medical records reflected that

Gurtie was frail in appearance, confused, and disoriented. In October 2011, just four months

prior to the execution of the deed, her doctor found that Gurtie was “forgetting a lot more”

and “getting worse in her dementia.” Gurtie’s physician repeatedly noted her confusion and

anxiety, as well as her increasing difficulties speaking and swallowing. Gurtie’s general

appearance was described as “frail” with a “flat affect” and a “confused” mental state. In early

February 2012, shortly before the execution of the deed, the medical reports noted that


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Gurtie complained of not being able to feel the inside of her mouth, and her daughter was

“worried that she is having mini-strokes.” That same report again described Gurtie as

confused and disoriented, with slow speech.

       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, 2015 Ark. App. 104.

       The determination of whether a deed is void because of the mental incapacity of the

grantor is measured by his or her mental ability at the time of the execution of the deed.

Munzner v. Kushner, 2010 Ark. App. 196, at 6, 375 S.W.3d 647, 651 (citing Andres v. Andres,

1 Ark. App. 75, 83, 613 S.W.2d 404, 409 (1981)). If the grantor is mentally competent at the

time he executes the deed at issue, the deed is valid. Id. The test of mental competency to

execute a deed was set forth by our supreme court in Donaldson v. Johnson, 235 Ark. 348, 359

S.W.2d 810 (1962), as follows:

               If the maker of a deed, 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


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       influence, mental weakness, whether produced by old age or through physical
       infirmities, will not invalidate an instrument executed by him.

Id. at 352, 359 S.W.2d at 813 (citations omitted). The mental capacity of the maker of a trust

or deed is presumed, and the burden rests on the contestants to prove incapacity by a

preponderance of the evidence. Munzner, supra (citing Rose v. Dunn, 284 Ark. 42, 46, 679

S.W.2d 180, 183 (1984)).

       The appellants contend that the circuit court erred in “failing to recognize that a

grantor could execute 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

time of the execution of the deed. The appellants stress that Dyer and Parker, who were

uninterested in the property itself, testified that Gurtie possessed sufficient mental capacity

during the execution of the deed; they contend that the circuit court therefore erred in

giving greater weight to the medical records than it did to these two “unbiased witnesses.”

       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 concluded 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, 2009 Ark.

App. 580, 336 S.W.3d 425). Thus, giving the proper deference to the trial court’s weighing

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of the credibility of the witnesses, see Clegg, supra, we are unable to say that the trial court

clearly erred in finding that appellees had proved Gurtie’s mental incapacity by a

preponderance of the evidence. We therefore affirm the circuit court on this point.

                                        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 deposited 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 stated 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 the 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


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Dennis Taylor, Linda Marston, Patsy Ellifritz, and Wanda Gragg be committed 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, should have been given the opportunity to

demonstrate that she was unable to afford to pay the judgment and that her failure to comply

was thus not willful. These are the same arguments that are made in the appellants’ brief on

appeal.

          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 appellants’

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

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       those 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, 53 Ark. App. 242,
       922 S.W.2d 345 (1996).

Wilkinson v. Smith, 2012 Ark. App. 604, at 2. We therefore lack an effective ruling on the

arguments that were raised in the appellants’ motion to stay and to recall the body attachment

and which are now raised on appeal. Accordingly, these issues are not preserved for our

appellate review. We do not review on appeal matters on which the trial court did not rule,

and the party raising the point on appeal has the burden to obtain the ruling. Bryant v.

Hendrix, 375 Ark. 200, 289 S.W.3d 402 (2008); Hodges v. Huckabee, 338 Ark. 454, 995

S.W.2d 341 (1999).

       Affirmed.

       VAUGHT, J., agrees.

       HARRISON , J., concurs.

       BRANDON J. HARRISON , Judge, concurring. I agree with parts I and 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 than one year before the final

order was issued in this case. 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 petition for


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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 after

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

Misc . . . 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 regarding how the

other appellants spent their house-sale money was ever even proffered. In other words, no

one but Marston even attempted to provide the circuit court with inability-to-pay proof.

       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 postjudgment phase and this appeal, when the lines of


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argument admittedly expanded. Recall that in response to the 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,

225 Ark. 487, 283 S.W.2d 340 (1955). As a matter of civil-contempt law, the circuit court

had the power to coerce appellants to pay money it had previously ordered them to tender

to the court, though that power is circumscribed by a contemnor’s inability to pay. “If the

court finds inability to comply, the civil contempt citation must be dismissed. . . . If, however,

one capable of paying money is ordered to do so and refuses, a court order imprisoning the

defendant is held to be imprisonment for contempt and not for debt.” 2 David Newbern, et

al., Arkansas Practice Series: Civil Practice and Procedure § 33:7, at 723 (5th ed. 2010); see also

Albarran v. Liberty Healthcare Mgmt., 2013 Ark. App. 738, 431 S.W.3d 310.

       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 Marston 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 to 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., 2013 Ark. App. 753, at 6, 431 S.W.3d 364, 368 (2013) (attorney’s arguments




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not evidence). And one year later, during the bench trial, all the proof of inability to pay

came through Linda Marston, and that evidence did not persuade the court.

       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.

       Medlock and Gramlich, Attorneys at Law, by: M. Jered Medlock and W. Steven Estell,

for appellants.

       Law Office of H. Ray Hodnett, by: H. Ray Hodnett, for appellees.




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