                                Cite as 2015 Ark. App. 223

                ARKANSAS COURT OF APPEALS
                                      DIVISION II
                                     No. CV-14-157

RICHARD WHITE                                   Opinion Delivered April 8, 2015
                              APPELLANT
                                                APPEAL FROM THE CARROLL
V.                                              COUNTY CIRCUIT COURT,
                                                WESTERN DISTRICT
                                                [NO. DR-2012-43 WD]
KAREN SHEPARD
                                APPELLEE        HONORABLE GARY ARNOLD,
                                                JUDGE

                                                REVERSED AND REMANDED



                              RITA W. GRUBER, Judge

       On July 24, 2012, Karen Shepard (now appellee) filed a complaint for absolute

divorce from Richard White (now appellant) and, on the same date, propounded requests

for admission on him. Shepard’s complaint asserted that she was a Missouri resident, and

White was a resident of Carroll County, Arkansas, and had been a resident there for more

than sixty days prior to the filing of her complaint; that she and White were married on

March 13, 2009; that the marriage was not a covenant marriage; that the parties separated on

September 5, 2011, after which time they continuously lived separate and apart from each

other without cohabitation; that there were property rights and debt responsibilities to be

adjudicated; and that during the course of the marriage, White had inflicted such personal

indignities upon her so as to entitle her to an absolute divorce pursuant to Ark. Code Ann.

§ 9-12-301(3). White timely answered the complaint, admitting that the parties had
                                    Cite as 2015 Ark. App. 223

separated and remained apart, denying her allegation regarding his infliction of indignities,

and stating that he would not contest the divorce. White counterclaimed for absolute

divorce on the ground of general indignities, and he responded to her requests for admission.

       On September 19, 2013, Shepard filed both an “Amended and Restated Complaint

for Divorce from Bed and Board” and a motion for summary judgment. In her amended

complaint, she alleged that White had failed to comply with the parties’ agreement that had

resulted from mediation:

              On January 5, 2013, Plaintiff and Defendant entered into a mediation
       agreement, denominated a “Memorandum of Understanding” (the “Property
       Settlement Agreement”), whereby Defendant agreed to refinance the mortgage on
       the home located at 400 Paradise Mountain Road, Eureka Springs, AR 72631 (the
       “Home”) in his name only within 2 months from the execution of the Property
       Settlement Agreement and agreed to quitclaim his interest in Tracts 1, 2, 8, 9, 10, 11
       and 12, Paradise Mountain Estates, Carroll County, Arkansas to Plaintiff.

The amended complaint also stated that the parties would quitclaim to each other nonmarital

real properties in Missouri. Shepard requested that she be awarded a decree of divorce from

bed and board, that White be ordered to specifically perform the mediation agreement, and

that she be granted other relief.

       In her motion for summary judgment, Shepard repeated her allegation that White had

refused to comply with the parties’ mediation agreement, and she further asserted that

Missouri property she had acquired prior to their marriage was nonmarital. Exhibits attached

to her motion included the memorandum of understanding and a letter from counsel to the

Firefighters Pension System of Kansas City, Missouri, stating that under Arkansas and

Missouri law, a “limited divorce” would not affect Shepard’s eligibility to receive a surviving


                                                2
                                 Cite as 2015 Ark. App. 223

spouse’s benefits. Other exhibits attached to the motion were the parties’ financial affidavits;

White’s affidavit of September 17, 2013, restating her allegations and attesting to White’s

Arkansas residency and the parties’ continuous separation without cohabitation since

September 5, 2011; and a September 18, 2013 affidavit of Larry Brookbank, attesting to

White’s Arkansas residency and the parties’ continuous separation without cohabitation since

September 5, 2011. Shepard prayed that she be awarded a divorce from bed and board from

White; that he be ordered to specifically perform the mediation agreement; that he be

ordered to pay the monthly mortgage, insurance and tax payments on the home; that he be

ordered to pay all taxes due on all of the property in Paradise Mountain Estates, Carroll

County, Arkansas, until such time as he quitclaims Tracts 1, 2, 8, 9, 10, 11, and 12 to her;

and that he be ordered to quitclaim her nonmarital real property in Missouri to her.

       White responded to the motion for summary judgment and opposed it.                   He

responded that the parties had indeed signed the mediation agreement requiring him to

refinance in his name, whereby Shepard’s name could be removed, and that he had

attempted to refinance, but the financial institutions he had approached had declined to

refinance in his name alone. He asserted that the parties had subsequently reached a novation

whereby he would attempt to obtain life insurance in order to protect her (as a mortgage

obligor) in the event of his death, but the premiums that were quoted to him were

prohibitively expensive.

       White also answered the amended complaint—admitting the extended period of

separation, admitting that the parties had signed the memorandum, but claiming that they


                                               3
                                Cite as 2015 Ark. App. 223

had entered into novations or substituted agreements that he would obtain life insurance in

lieu of refinancing the Eureka Springs home. He claimed that he “subsequently agreed to

split the real estate” with Shepard, who then reneged on that agreement. He denied

Shepard’s allegation that he had refused to comply with the mediation agreement, pleading

that he had attempted the refinancing but that financial institutions had refused to refinance

solely in his name. He denied that the parties should quitclaim to each other their

nonmarital real properties in Missouri, pleading that Shepard’s Missouri home was marital

property or debt because it was partially refinanced or paid for by refinancing the mortgage

on the Eureka Springs home. He raised affirmative defenses of novation or substituted

contracts, failure to state a claim upon which relief can be granted, and failure of condition

precedent or frustration of purpose. He requested that Shepard’s amended complaint be

dismissed.   She replied to his response, denying that she had agreed to modify the

memorandum of understanding, denying that she had refused to comply with the mediation

agreement, and asserting that it was White who had refused to comply.

       On November 1, 2013, the circuit court conducted a hearing on Shepard’s motion

for summary judgment.       Shepard argued that the affidavits she had filed presented

uncontroverted facts supporting entitlement to specific performance of the mediation

agreement. She asked that she be granted a divorce from bed and board so that the parties

would continue to own the home.

       The circuit court entered a fill-in-the-blank docket order on November 1, 2013,

granting Shepard the “relief requested” in her summary-judgment motion, denying White’s


                                              4
                                 Cite as 2015 Ark. App. 223

counterclaim, and stating that Shepard was to provide an order within ten business days. On

November 14, 2013, White filed a notice of appeal.

       In a detailed order, entered on November 22, 2013, the court granted Shepard

summary judgment for a divorce from bed and board and for a division of property based on

the parties’ mediation agreement; the order also dismissed Richard White’s counterclaim for

absolute divorce. The court found that the facts of the case were settled based upon the

allegations of the pleadings and supporting affidavits. Included in these findings were that

White had refused to comply with the parties’ mediation agreement of property settlement,

certain real property was Shepard’s nonmarital property, the parties had continuously lived

separate and apart without cohabitation since September 5, 2011, and

       if [Shepard] is granted a divorce from bed and board rather than an absolute divorce,
       [she] will be entitled to collect a death benefit upon [White’s] death, thereby providing
       her with funds with which she can maintain the mortgage, taxes, and insurance on the
       home until she is able to sell the home.

White was ordered to quitclaim Tracts 1, 2, 8, 9, 10, 11, and 12, Paradise Mountain Estates;

to quitclaim the Missouri real property; to pay 2012 real property taxes on Tracts 1, 2, 3 and

6–14 in Paradise Mountain Estates; to pay monthly mortgage, insurance, and taxes on Tracts

4, 5, 17, and 19, “and the improvements thereon (the ‘Home’) and on Tracts 3, 6, 7, 13, and

14 “until he refinances the Home in his own name or until his death”; and, upon refinancing

the Home in his own name, to quitclaim the Home and Tracts 3, 6, 7, 13, and 14 to Shepard.

Finally, the order prohibited White from suing Shepard for absolute divorce until refinancing

the home in his own name, and his counterclaim was denied. White timely filed a

supplemental notice of appeal from this order.

                                               5
                                  Cite as 2015 Ark. App. 223

       White raises two points on appeal, contending that the circuit court erred (1) in

denying and dismissing his complaint for divorce and prohibiting him from suing for divorce,

and (2) in granting summary judgment to Shepard on all her claims. We reverse in part on

the first point, and we reverse on the second point.

                            I. White’s Complaint for Absolute Divorce

       White contends that the circuit court erred as a matter of law by unjustifiably denying

and dismissing his counterclaim for absolute divorce and by ordering him not to sue for

divorce. He asserts that he never abandoned his counterclaim, and he notes Shepard’s failure

to deny his claim of general indignities as well as her own pleadings and affidavits regarding

the parties’ separation. The statutory grounds for divorce include:


       (b) The circuit court shall have power to dissolve and set aside a marriage contract, not
       only from bed and board, but from the bonds of matrimony, for the following causes:
              ....

              (3) When either party shall:
                    ....

                      (C) Offer such indignities to the person of the other as shall render his
                      or her condition intolerable;

              . . . . ; [and]

              (5) When husband and wife have lived separate and apart from each other for
              eighteen (18) continuous months without cohabitation, the court shall grant an
              absolute decree of divorce at the suit of either party, whether the separation was the
              voluntary act of one (1) party or by the mutual consent of both parties or due
              to the fault of either party or both parties[.]

Ark. Code Ann. § 9-12-301 (Repl. 2009) (emphasis added). We agree with White, and

Shepard does not dispute, that the pleadings and affidavits in this case support the statutory

                                                6
                                 Cite as 2015 Ark. App. 223

grounds of eighteen months’ continuous separation without cohabitation. When this ground

is proven, the language of section 9-12-301(b)(5) mandates that “the court shall grant an

absolute decree of divorce at the suit of either party.”

       We hold that the trial court erred as a matter of law by denying White’s counterclaim

for absolute divorce in light of the parties’ agreement that they had lived separate and apart

for eighteen months without cohabitation. In light of our ruling, we need not address the

second part of White’s argument: that the trial court also erred when it prevented White from

suing for divorce until after refinancing the home. We reverse and remand to the circuit

court for further proceedings consistent with this opinion.

                  II. The Granting of Shepard’s Motion for Summary Judgment

       Summary judgment is governed by Ark. R. Civ. P. 56:

       (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or
       cross-claim or to obtain a declaratory judgment may, after the expiration of 20 days
       from the commencement of the action or after service of a motion for summary
       judgment by the adverse party, move with or without supporting affidavits for a
       summary judgment in his favor upon all or any part thereof. . . .
       ....

       (c) Motion and Proceedings Thereon.

              (1) The motion shall specify the issue or issues on which summary judgment
              is sought and may be supported by pleadings, depositions, answers to
              interrogatories and admissions on file, and affidavits. The adverse party shall
              serve a response and supporting materials, if any, within 21 days after the
              motion is served. The moving party may serve a reply and supporting materials
              within 14 days after the response is served. For good cause shown, the court
              may by order reduce or enlarge the foregoing time periods. No party shall
              submit supplemental supporting materials after the time for serving a reply,
              unless the court orders otherwise. . . .

              (2) The judgment sought shall be rendered forthwith if the pleadings,

                                               7
                                  Cite as 2015 Ark. App. 223

              depositions, answers to interrogatories and admissions on file, together with the
              affidavits, if any, shows that there is no genuine issue as to any material fact and
              that the moving party is entitled to a judgment as a matter of law on the issues
              specifically set forth in the motion.
       ....

       (e) Form of Affidavits; Further Testimony; Defense Required. . . .[A]n adverse party
       may not rest upon the mere allegations or denials of his pleadings, but his response, by
       affidavits or as otherwise provided in this rule, must set forth specific facts showing that
       there is a genuine issue for trial. If he does not so respond, summary judgment, if
       appropriate, shall be entered against him.

       Summary judgment should be granted only when it is clear that there are no genuine

issues of material fact to be litigated, and the moving party is entitled to judgment as a matter

of law. York v. York, 2010 Ark. App. 343, 374 S.W.3d 827. Once the moving party has

established a prima facie entitlement to summary judgment, the opposing party must meet

proof with proof and demonstrate the existence of a material issue of fact. Payne v. France,

373 Ark. 175, 282 S.W.3d 760 (2008). The reviewing court determines if summary

judgment was appropriate based on whether the evidentiary items presented by the moving

party in support of the motion leave a material fact unanswered. Id. We view the evidence

in a light most favorable to the party against whom the motion was filed, resolving all doubts

and inferences against the moving party, and focusing our review not only on the pleadings

but also on the affidavits and documents filed by the parties. See id.

       We hold that, because there remained disputed issues of material fact in this case, the

trial court erred as a matter of law in granting Shepard’s motion for summary judgment. In

her supporting affidavit, Shepard stated that White had refused to comply with the

memorandum of understanding or mediation agreement. White stated in his competing


                                                8
                                 Cite as 2015 Ark. App. 223

affidavit that he was not willfully in default of the memorandum of understanding and had

attempted in good faith to comply with it. He stated that he had attempted to renegotiate the

loan in order to remove Shepard as an obligor, that financial institutions refused him, that the

parties then agreed that he would attempt to obtain a life-insurance policy in lieu of

refinancing, that attempts to obtain life insurance also failed, and that his subsequent attempts

to divide the property with Shepard also failed. Likewise, in his answer to the amended

complaint, White denied the allegation that he had refused to comply with the agreement.

Clearly, the issue of whether White refused to comply with the mediation was a disputed

issue.

         There also remained competing divorce complaints in this case, making summary

judgment improper. White’s request for absolute divorce was in direct contravention of

Shepard’s amended complaint for bed and board.1

         Further, there was inadequate evidence in the record to support the relief given to

Shepard. The grant of summary judgment, by dividing other marital property, went far

beyond ordering specific performance of the mediation agreement. See Ark. Code Ann. § 9-

12-315 (requiring that all marital property be distributed one-half to each party “unless the

court finds such a division to be inequitable,” in which event “the court shall make some

other division that the court deems equitable” after taking into consideration ten statutory

factors).


         1
        Although not determinative in our decision, we wish to express our concern
regarding the use of summary judgment in a contested pre-decree situation such as in the
present case.

                                               9
                                 Cite as 2015 Ark. App. 223

       Clearly, without evidence of whether property and debts were marital or nonmarital

and without a hearing on the statutory factors to be considered for an inequitable division of

marital property, the division of property and debt by an order of summary judgment was

both an abuse of discretion and an error of law. We reverse the grant of summary judgment

regarding the division of property, and we remand for further proceedings consistent with this

decision.

       Reversed and remanded.

       WHITEAKER and BROWN, JJ., agree.

       Parker Law Firm, by: Tim S. Parker, for appellant.

       Kristine Bradt Kendrick, for appellee.




                                                10
