Baker v. Baker

2013 Ark. App. 543, 429 S.W.3d 389, 2013 WL 5476396, 2013 Ark. App. LEXIS 563
CourtCourt of Appeals of Arkansas
DecidedOctober 2, 2013
DocketCV-12-1112
StatusPublished
Cited by14 cases

This text of 2013 Ark. App. 543 (Baker v. Baker) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Baker, 2013 Ark. App. 543, 429 S.W.3d 389, 2013 WL 5476396, 2013 Ark. App. LEXIS 563 (Ark. Ct. App. 2013).

Opinion

BILL H. WALMSLEY, Judge.

11 Appellant Shanna Baker and appellee Matthew Baker married in 2005 and had one son, K.B. (DOB: 7-23-2008). The parties separated in 2010, and Shanna filed for divorce. Shanna appeals from the White County Circuit Court’s divorce decree, arguing that the trial court erred in its distribution of property and allocation of debt and in awarding custody of their son to Matt. We affirm.

In its August 28, 2012 order, the trial court awarded five acres upon which the marital home sat to Matt because the land had been given to him as a gift from his parents prior to marriage. The trial court also awarded Matt the marital home given that a sale was impractical, considering that the house was located only a few feet from Matt’s parents’ properly and the septic system was on his parents’ properly. Because marital funds were used to pay the principal of the mortgage in the amount of $4,084.43, Matt was ordered to pay Shanna $2,042.22.

|aThe trial court divided several items of personal property, including a 1905 gold coin that once belonged to Shanna’s great-grandmother. The trial court determined that the coin was marital property.

The trial court found that the parties had $22,672.37 in outstanding marital debt for which they should be equally liable. While the divorce was pending, Matt made payments on the parties’ credit cards, and the trial court ordered Shanna to reimburse him for one-half of the payments made or $9,001.46. Offsetting an overpayment of child support by Matt ($860), which Shanna was ordered to repay, and Matt’s obligation to pay Shanna one-half of the mortgage principal ($2,042.22), Shanna was ordered to pay Matt $7,819.24 ($9,001.46-$1,182.22) at 6% interest.

The trial court ruled that Rose Bud Heating and Cooling was Matt’s separate property and that he was responsible for $10,000 in business-related expenses owed on a Citibank credit card.

In awarding custody of KB. to Matt, the trial court determined that Shanna and her witnesses were less credible than Matt and his witnesses and that Matt would provide more stability for the child.

I. Marital Property

Matt testified that, when he was a teenager, his parents promised to give him a five-acre tract of land and that they deeded the properly to him on the day before the parties’ wedding. According to Matt, the marital home had been appraised at $96,565. There was evidence that the mortgage balance was $96,511.54.

|sShanna argues that Matt “regifted” the five acres to the marital estate when he told her as his new bride that they now had land upon which to build their home. Shanna also contends that title to the five acres became clouded due to the fact that the mortgage on the house that they built on the land was in both of their names. According to Shanna, this commingling created a presumption that Matt intended to make the five acres a gift to the marital estate.

Shanna also complains that she was awarded only $2,042.22, while Matt received 100% of the marital home. According to Shanna, the house was clearly marital property and, since the house alone appraised at $96,565, she should have been awarded one-half, or $48,282.50. Shanna further contends that the trial court should have valued the reduction in principal at the time of the divorce, instead of the separation, because Matt was essentially awarded a credit for marital funds he used to pay down the debt.

All marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable. Ark.Code Ann. § 9-12-315(a)(l)(A) (Supp.2011). Arkansas Code Annotated section 9-12-315 defines “marital property” as all property acquired by either spouse subsequent to the marriage, subject to certain exceptions, including property acquired prior to marriage or by gift. Ark.Code Ann. § 9-12-315(b)(l). There is a presumption that all properly acquired during a marriage is marital property. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). Once property, whether real or personal, is placed in the names of both spouses without specifying the manner in which they take, there is a presumption that they own the property as tenants by the entirety, and clear and convincing evidence is required to overcome that presumption. Cole v. Cole, 53 Ark.App. 140, 920 S.W.2d 32 (1996). A trial court’s findings of fact with respect to division of property will be affirmed unless clearly erroneous or clearly against the preponderance of the evidence. Barnes v. Barnes, 2010 Ark. App. 821, 378 S.W.3d 766. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.

We disagree with Shanna’s argument that Matt’s use of plural pronouns resulted in his making a gift of the five acres to her or the marital estate. The property was given to Matt as a gift prior to marriage, so it was not marital properly and, in any event, it would have qualified as an exception. In reviewing the trial court’s findings, this court gives due deference to the trial court’s superior position to determine the credibility of witnesses and the weight to be accorded to each witness’s testimony. Barnes, supra. The trial court clearly believed the testimony of Matt and his parents with regard to the five acres. Furthermore, Shanna’s name was not put on the deed, which is further proof that Matt never intended to give the acreage to Shanna or the marital estate. The trial court did not clearly err in awarding the five acres to Matt as his separate property.

With regard to the marital home, Shanna’s claim that she should be awarded one-half its value is unreasonable given that only approximately $4,000 had been paid on the mortgage. 1 We cannot say that the trial court clearly erred in awarding Matt the marital home, | 5along with its debt, considering the trial court’s reasons set forth in the order. 2 Shanna also argues for the first time on appeal that the trial court should have valued the reduction in principal at the time of the divorce, and not the parties’ separation. It is incumbent upon the parties to raise arguments initially to the trial court and to give that court an opportunity to consider them. Roberts v. Yang, 2010 Ark. 55, 370 S.W.3d 170 (holding that appellant failed to preserve argument that trial court erred by not valuing and dividing accounts at time of divorce decree). Because Shanna’s argument was not preserved below, we do not address it.

As for the gold coin, Shanna maintains that the evidence does not support the trial court’s finding that it was marital properly. According to Shanna, Matt’s testimony concerning how the parties acquired the coin was “contradictory and not believable.” Matters of credibility are for the trial court to determine. Barnes, supra. Testimony regarding the coin was conflicting, and the trial court obviously believed Matt’s testimony. We hold that there was no clear error in the trial court’s decision.

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Baker v. Baker
2013 Ark. App. 543 (Court of Appeals of Arkansas, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
2013 Ark. App. 543, 429 S.W.3d 389, 2013 WL 5476396, 2013 Ark. App. LEXIS 563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-baker-arkctapp-2013.