Mason v. Mason

                                      Cite as 

                  SUPREME COURT OF ARKANSAS
                                         No. CV-16-488


                                                    Opinion Delivered: June 22, 2017


DEBRA L. MASON
                                  APPELLANT APPEAL FROM THE PULASKI
                                            COUNTY CIRCUIT COURT
V.                                          [NO. 60DR-10-1318]

CHARLES F. MASON                             HONORABLE VANN SMITH,
                                    APPELLEE JUDGE

                                                    CERTIFIED QUESTION ANSWERED;
                                                    REMANDED TO THE COURT OF
                                                    APPEALS.


                            SHAWN A. WOMACK, Associate Justice


        Debra Mason appeals from an order in the Pulaski County Circuit Court terminating

 her previous alimony award pursuant to 

(a)(2)(D) (Repl. 2015).

 She argues that the statute may not be applied retroactively to divorce decrees entered prior

 to a statutory amendment, the statute is unconstitutionally vague, and the circuit court’s

 previous order stated the only grounds upon which alimony would terminate, rendering

 the statute inapplicable.1 We accepted certification of this case from the court of appeals on

 the basis that it involves issues of first impression; significant issues needing clarification or

 development of the law; and substantial questions of law concerning the validity,

 construction, or interpretation of an act of the General Assembly. See Ark. Sup. Ct. R. 1-


        1
           Appellant also argues that the circuit court erred in its initial alimony award and
 failure to later modify the award based on a change in circumstances. Additionally, she
 challenges the circuit court’s determination that a retirement account was nonmarital
 property.
                                     Cite as 

(b)(1), (5), & (6); Ark. Sup. Ct. R. 1-2(d). We hold that the mandatory termination

language in the statute does not apply retroactively to automatically terminate alimony

awards entered before the 2013 amendment. We therefore remand to the court of appeals

to address the merits.2

       On March 24, 2010, Charles Mason filed a complaint for divorce in the Pulaski

County Circuit Court. On August 4, 2011, the court entered a divorce decree and noted

that Charles is a physician who makes between $350,000 to $380,000 per year, while Debra,

who has an accounting degree, had not worked substantially during the marriage and made

approximately $39,000 per year. Considering the economic discrepancy, the court awarded

Ms. Mason $3,500 per month for thirty-six months and then $1,500 for an additional sixty




       2
         We note that the briefs the court of appeals certified to us are deficient. The appellee
raised his statutory argument in a motion for summary judgment. Debra filed a response and
Charles filed an additional reply. The circuit court held a hearing on May 5, 2014, and
issued an order on June 17, 2014, denying the appellee’s motion for summary judgment.
None of the mentioned pleadings, hearings, orders, or briefs and exhibits are included in
the abstract or addendum.

         Our rules require that the parties include in the abstract and addendum everything
that is essential to our understanding and ability to decide the issues on appeal. See Ark. Sup.
Ct. R. 4-2(a)(5), (8) (2016). We typically require rebriefing when the briefs are insufficient
for us to address the merits. Ark. Sup. Ct. R. 4-2(b) (2016); Unum Life Ins. Co. of Am. v.
Edwards, 

, 

 (2005). We nevertheless did not order
rebriefing from this court because we were able to answer the certified question without
the additional information. We remand to the court of appeals to address the briefing
deficiencies and the underlying merits of the case. It is unfortunate that this case was certified
to our court in its current state. We note that with twelve judges, twenty-four law clerks,
and four staff attorneys, the court of appeals has sufficient resources to spot such deficiencies.
In the future, we expect the court of appeals to ensure that the briefs comply with our rules
prior to certifying a case to this court.


                                                2
                                    Cite as 

months or until she remarried.3 On February 5, 2014, Debra filed a motion to modify the

alimony award, and Charles responded that, based on a revision to Ark. Code Ann. 9-12-

312(a)(2), his obligation to pay alimony terminated as an operation of law when she began

living with her boyfriend. Debra responded by arguing that applying a 2013 statute to a

2011 divorce decree would apply the statute retroactively, the statute was unconstitutionally

vague, and the court “otherwise ordered” that the alimony award would not terminate.

         On August 1, 2014, the circuit court entered an order finding that the statute was

not unconstitutionally vague, that Debra and her boyfriend cohabitated full-time, and that

she was not entitled to any increase in alimony. On October 29, 2014, the circuit court

held that applying the act to the divorce decree would not have a retroactive effect and that

Charles’ obligation to pay alimony ceased as a matter of law. Debra appealed, but the court

of appeals dismissed for lack of a final order. Mason v. Mason, 

. The

circuit court entered a final order on February 23, 2016, and Debra timely appealed that

order.

                                     Retroactive Application

         The relevant statute provides:

                Unless otherwise ordered by the court or agreed to by the parties, the
                liability for alimony shall automatically cease upon the earlier of:

                (D) The living full time with another person in an intimate,
                cohabitating relationship.




         3
         Appellant appealed the circuit court’s order but the court of appeals dismissed her
appeal for lack of a final order. Mason v. Mason, 

.


                                               3
                                    Cite as 

(a)(2)(D) (Repl. 2015). The circuit court determined that

applying the statute to the divorce decree would not amount to retroactive application

because it would only affect future alimony payments. See Bethell v. Bethell, 

, 

 (1980) (entitlement to alimony vests “as the payments

accrue” and a cause of action and right to payment accrues as of that date).

       Retroactivity is a matter of legislative intent. Bean v. Office of Child Support Enf’t, 

, 

 (2000). Generally, statutes are construed as having only

a prospective operation, unless the purpose and intention of the legislature to give them a

retrospective effect is expressly declared or is necessarily implied from the language used.

Bolin v. State, 

, 

; Bean, 

, 

; Gannett River States Pub. Co. v. Ark. Judicial Discipline & Disability Comm’n, 

, 

 (1990). In the absence of such legislative intent, we have

observed a strict rule of construction against retroactive operation and indulge in the

presumption that the legislature intended statutes, or amendments thereof, to operate

prospectively only. Evans v. Hamby, 

, 

.

       Here, rather than analyzing for a change in circumstances that would cause it to

exercise its sound discretion to terminate alimony, the circuit court’s order applied a 2013

statutory amendment to automatically terminate the alimony provision of its previous

divorce decree based on a ground that did not require automatic termination when the

decree was entered. This termination as a matter of law amounted to a retroactive

application of the current statute. Neither party argues, and nothing in the statute or the

legislative history indicates, that the General Assembly intended for this statute to apply to


                                                4
                                   Cite as 

previous alimony awards. See 

; Act 1487 of 2013. We therefore

hold that Act 1487 does not automatically terminate alimony awards entered before August

16, 2013.

       Our analysis today is limited to the certified question concerning the mandatory

automatic-termination language of the statute and places no limitation on a circuit court’s

historic ability to alter or terminate its own alimony awards based on changed circumstances,

including cohabitation in an intimate relationship. See 

 (Repl.

2015); Bracken v. Bracken, 

, 

 (1990).

       Having answered the certified question, we remand the case to the court of appeals

to address the merits and all other unaddressed issues on appeal.4 Bales v. City of Fort Smith,

, ___ S.W.3d. ___.

       Certified question answered; remanded to the court of appeals.

       KEMP, C.J., dissents.

       JOHN DAN KEMP, Chief Justice, dissenting. The majority has answered a

certified question, which involves an issue of statutory interpretation that was argued by the

parties in the circuit court, and has remanded the case to the court of appeals to address the

merits. Because appellant Debra Mason has submitted a brief with a deficient abstract and


       4
          The court of appeals additionally certified questions regarding whether the statute
is unconstitutionally vague and whether the circuit court “otherwise ordered” the
conditions on which alimony would terminate such that 

-
312(a)(2)(D) was inapplicable. We decline to address these questions. First, since we have
already concluded that the mandatory termination provision of the statute does not apply
retroactively to automatically terminate the alimony award, we decline to further address
the constitutionality of the statute. Second, whether the circuit court “otherwise ordered”
when alimony would terminate is a question of fact that turns on the merits rather than an
issue of statutory interpretation that we must resolve.

                                              5
                                    Cite as 

addendum in violation of Arkansas Supreme Court Rule 4-2(a)(5), (8) (2016), I would order

rebriefing before this court answers the certified question. For this reason, I respectfully

dissent.

         Rule 4-2(a)(8) of the Arkansas Supreme Court Rules provides that the addendum

contained in the brief must include copies of all documents in the record on appeal that are

essential for the appellate court to confirm its jurisdiction, to understand the case, and to

decide the issues on appeal. Specifically, the addendum must include “all motions . . .

responses, replies, exhibits, and related briefs, concerning the order, judgment, or ruling

challenged on appeal.” Ark. Sup. Ct. R. 4-2(a)(8)(A)(i). Further, pursuant to Rule 4-2(b)(3),

this court affords an appellant the opportunity to cure any deficiencies by filing a substituted

brief.

         We have consistently ordered rebriefing in appeals of summary-judgment orders

when the appellant fails to include in the addendum the motion for summary judgment, the

opposing party’s response to the motion, the moving party’s reply to the response, and any

briefs in support. See, e.g., Skalla v. Canepari, 

 (per curiam) (rebriefing ordered

to include in the abstract the deposition testimony attached as an exhibit to the motion for

summary judgment); Kennedy v. Morales, 

 (per curiam) (rebriefing ordered for

lack of cross-motions for summary judgment, briefs, and replies in the addendum); Grand

Valley Ridge v. Metropolitan Nat’l Bank, 

 (per curiam) (rebriefing ordered for

lack of motion for summary judgment, responses, replies, and briefs in support); Bryan v.

City of Cotter, 

, 

 (per curiam) (rebriefing ordered for failure to

include in the addendum the motion for summary judgment, response, reply, and briefs in


                                               6
                                   Cite as 

support); Meyer v. CDI Contractors, LLC, 

, 

 (per curiam)

(rebriefing ordered for failure to include in the record and addendum the brief in support

of response to motion for summary judgment); Neely v. McCastlain, 

, 

 (2009) (per curiam) (rebriefing ordered for failure to include in the addendum

appellees’ joint motion for summary judgment and the response); Whiteside v. Russellville,

, 

 (2008) (per curiam) (rebriefing ordered because the

addendum lacked a brief in support of the motion for summary judgment, responses, and

replies); Preston v. Stoops, 

, 

 (2008) (per curiam) (rebriefing

ordered when appellant failed to include the motion for summary judgment); CitiFinancial

Retail Servs. Div. of CitiCorp Trust Bank, FSB v. Weiss, 

, 

 (2007)

(per curiam) (rebriefing ordered in appeal of summary judgment where addendum lacked

motions for summary judgment and briefs in support).

       In the case at bar, appellee Charles Mason raised his argument to terminate alimony,

pursuant to Arkansas Code Annotated section 9-12-312(a)(2)(D) (Repl. 2015), in his

motion for summary judgment. Debra filed a response, and Charles replied. The circuit

court held a hearing and subsequently entered an order denying Charles’s motion for

summary judgment. Debra’s addendum does not contain these essential pleadings and the

order. Debra also failed to abstract the circuit court’s summary-judgment hearing, in

violation of Arkansas Supreme Court Rule 4-2(a)(5).

       Now this court answers a certified question involving an issue of statutory

interpretation without the benefit of these relevant pleadings and the abstracted hearing

before it. This court has stated that it is axiomatic that there is only one record, and it is


                                              7
                                   Cite as 

impossible for seven judges to examine it. See, e.g., Unum Life Ins. Co. of Am. v. Edwards,

, 

 (2005). More significant, it is Debra’s burden to provide us

with a brief that allows us to understand, in this instance, the statutory issue presented to

this court. See, e.g., Meyer v. CDI Contractors, LLC, 

, 

. Because

Debra has failed to comply with our rules, and in an effort to be consistent with our

precedent, I would order rebriefing. Therefore, I dissent.

       James Law Firm, by: Bobby R. Digby II, for appellant.

       Hilburn, Calhoon, Harper, Pruniski & Calhoun, LTD., by: Sam Hilburn and Scott
Hilburn, for appellee.




                                             8