ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION IV

JOHN FITTON

APPELLANT

V.

SUSAN FITTON

APPELLEE

CA 00-1328

September 12, 2001

APPEAL FROM THE PULASKI

COUNTY CHANCERY COURT,

FIFTH DIVISION[91-3372]

HONORABLE ELLEN BASS

BRANTLEY, CHANCERY JUDGE

REVERSED AND DISMISSED

Appellant, John Fitton, and appellee, Susan Fitton, were married on February 2, 1968. They separated on or about October 19, 1990, and the complaint for divorce was filed on June 3, 1991. The divorce decree was entered on July 10, 1991, and the parties' property settlement agreement was "approved and adopted by the court and made a part of this Decree by reference." On May 24, 2000, appellee filed a motion for contempt against appellant, alleging that he had failed to comply with a provision of the agreement that required him to maintain a life insurance policy naming appellee as the sole beneficiary. Appellant moved to dismiss and raised several defenses, including an affirmative defense based on his contention that the statute of limitations barred enforcement of this provision of the settlement agreement. Following a hearing that was held on July 31, 2000, the chancellor

denied appellant's motion to dismiss and found that appellant agreed to provide the insurance and that the agreement was included in the parties' overall property settlement agreement. Consequently, the chancellor ordered appellant to maintain the policy, to name appellee as the sole beneficiary, and to be responsible for all premiums. We reverse and dismiss.

Appellant raises three points of appeal: 1) "the trial court erred in finding that the appellant's obligation to keep appellee indefinitely designated as beneficiary of appellant's term life insurance was `bargained for' at the time of the parties' property settlement agreement," 2) "the trial court erred ordering appellant to keep appellee as beneficiary of appellant's term life insurance policy even though appellant had no remaining financial obligation owed to the appellee under the parties' property settlement agreement and appellee had no continuing insurable interest remaining on appellant's life," and 3) "the trial court erred in finding that the five-year statute of limitations did not bar the enforcement of the parties' property settlement agreement requiring appellant to name appellee as beneficiary of appellant's term life insurance policy on his life." We find it unnecessary to address the first two points of appeal because we have concluded that the chancellor erred in refusing to bar enforcement of this portion of the parties' settlement agreement based upon the statute of limitations.

In Meadors v. Meadors, 58 Ark. App. 96, 946 S.W.2d 724 (1997), this court affirmed the trial court's application of the five-year statute of limitations to a property settlement agreement that was incorporated into a decree of divorce. Arkansas Code Annotated section

16-56-111(b) (Supp. 1999), provides that applicable actions shall be commenced within five years after the cause of action shall accrue. The general rule as to when a cause of action accrues is the moment the right to commence an action comes into existence, and the statute of limitations commences to run from that time. Hunter v. Connelly, 247 Ark. 486, 446 S.W.2d 654 (1969). The accrual of a cause of action refers to a complete and present cause of action. Id. Moreover, ignorance of a cause of action does not prevent the running of the statute of limitations unless there has been fraudulent concealment on the part of those invoking the statute. Id. As explained in Dupree v. Twin City Bank, 300 Ark. 188, 191, 777 S.W.2d 856, 858 (1989), for breach of contract cases "the true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion."

Here, the parties' divorce decree provided that the property settlement agreement was fair and equitable, that it was adopted by the court, and that it was made a part of the decree by reference. Paragraph VII of the settlement agreement provided:

VII. LIFE INSURANCE

Husband shall maintain his present policy of life insurance in the sum of $100,000 by Security-Connecticut #859276M [The word "indefinitely" appeared immediately following this policy number in the original typed text, but was struck through and initialed by both parties.] and Wife will be the sole beneficiary of such policy. Husband will keep all premiums due thereon current and not to be encumbered by loans.

Appellant testified that he retained the life insurance policy, but that in 1994 he changed the beneficiary from appellee to his two daughters, and that in the year and a halfprior to the hearing he changed the beneficiary from his two daughters to his business. Appellant acknowledged that he gave no notice to appellee of either change. Appellee testified that she called the insurance company every six months to confirm that the policy remained in effect. However, she did not take the additional step of confirming that she remained as the beneficiary under the policy. It was not until the year 2000 that she began to suspect that appellant was not adhering to the terms of their settlement agreement. In short, she could have first maintained an action based upon her allegation that appellant had breached this portion of the parties' agreement sometime in 1994 when appellant removed her as the beneficiary. Yet, she did not file her motion for contempt until May 24, 2000, which was well beyond the five-year period of limitation. It is of no consequence in this case that the chancellor retained jurisdiction for any further orders that might become necessary to enforce the provisions of the divorce decree because the underlying action based upon an alleged breach of the parties' agreement was barred by the applicable statute of limitations.

Reversed and dismissed.

Neal and Vaught, JJ., agree.