Later courts went against this
Overruled on other grounds by Hartford Fire Insurance v. Sauer, 358 Ark. 89 (2004)
319 Ark. 270 , 890 S.W.2d 592 (1995), overruled on other grounds by Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89 , 186 S.W.3d 229
The opinion
Robert L. Brown, Justice, dissenting. I respectfully dissent and would consider the issue of the attorney’s fee award on the merits — not on the basis of a deficient abstract.
The abstract clearly states, as the majority opinion admits, that the trial court and the attorneys debated whether an attorney’s fee was appropriate for work done after the divorce decree for matters not involving alimony, maintenance, or support. Our statutes provide for post-decree attorney’s fees only for enforcement of awards in those limited categories. See Ark. Code Ann. § 9-12-309 (b) (Repl. 1993). It is further clear from the briefs that the work done by Mrs. Gavin’s attorney after the decree dealt with enforcement matters unrelated to alimony, maintenance, or support. Indeed, Mrs. Gavin in her Statement of the Case details three areas where she had to incur additional attor-. ney’s fees: (1) a contempt hearing due to Mr. Gavin’s attempt to thwart a real estate sale; (2) an enforcement action dealing with a marital bank account; and (3) an enforcement action to collect attorney’s fees and counseling fees. Neither party contests this. Nor. does counsel for Mrs. Gavin argue that any other statutory basis for the fee award applies. The stated issue is whether Mrs. Gavin’s counsel should be paid for work done to enforce other aspects of the decree which included division of marital property. Where the framed issue is clear and the facts are not in dispute, we should decide the question.
Further, when the parties agree on an interest rate to apply post-decree, I question the existence of a remaining case or controversy. Though the reasoning of the majority opinion about some basis for a concession is logical, the parties did not argue on appeal that the interest rate was in dispute. A ready inference from the briefs is that the eight percent rate was calculated, using the federal discount rate plus five percent. That is sufficient for me. In sum, I question whether we should resurrect an issue and scrutinize it when the parties have laid the dispute to rest and where there is a basis for the appellee’s concession.