Box v. Box

851 S.W.2d 437, 312 Ark. 550, 1993 Ark. LEXIS 237
CourtSupreme Court of Arkansas
DecidedApril 19, 1993
Docket92-928
StatusPublished
Cited by36 cases

This text of 851 S.W.2d 437 (Box v. Box) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Box v. Box, 851 S.W.2d 437, 312 Ark. 550, 1993 Ark. LEXIS 237 (Ark. 1993).

Opinion

Donald L. Corbin, Justice.

Barbara Box appeals from a divorce decree and judgment entered by the Pulaski Chancery Court. She asserts only one point of error. John T. Box cross-appeals, asserting two points of error. As all assignments of error concern the classification and division of property, resolution of this appeal requires our interpretation of our division of property statute, Ark. Code Ann. § 9-12-315 (Supp. 1991). Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c). We reverse and remand on direct appeal and affirm on cross-appeal.

The parties married on March 25,1983. They separated on May 22, 1990, and appellant filed for divorce on May 9, 1991. Appellee counterclaimed for divorce on July 2, 1991.

The evidence presented at trial reveals that, prior to the parties’ marriage, appellee had acquired two parcels of real estate. He owned a 100-acre farm in Romance, Arkansas. Purchase-money mortgage payments on the farm are $ 190.83 per month. He also owned a 38-acre homestead in Jacksonville, Arkansas, which was given to him free of any debt by his parents. In September 1980, the homestead was mortgaged for $30,000.00, to be paid over 120 months at $465.90 per month. On the date the parties married, appellee owed $27,638.78 on this mortgage; during the marriage, the $27,638.78 balance on the mortgage was paid in full. Appellee stated that he borrowed the $30,000.00 to pay the property settlement in his prior marriage. In June 1985, the homestead was mortgaged for $2,000.00, to be paid over 24 months at $94.61 per month. This mortgage was paid in full during the marriage. Appellee stated that he borrowed the $2,000.00 to help purchase a car for one of appellant’s daughters. A court-appointed appraiser valued the homestead at $85,000.00 as of the date the parties married. The same court-appointed appraiser valued the homestead at $91,000.00 as of December 19, 1991.

Evidence presented at trial also reveals that, during the marriage, appellant was employed as a secretary for an insurance company earning $1,000.00 per month; appellee worked as a fireman for the civil service earning approximately $960.00 per month. During the first two and one-half years of their marriage, the parties and two of appellant’s three daughters lived in a house rented to appellant. Appellant paid the rent and all expenses on the rent house while the parties lived there and made improvements to appellee’s homestead. After the two and one-half years of living in the rent house while improving appellee’s house, the parties and appellant’s two daughters moved into appellee’s house and continued to live there for approximately five and one-half years. During this time, appellant used her earnings to pay the telephone bills, gasoline bills, grocery bills, and insurance on appellee’s house and all family vehicles; appellee used his salary to make the mortgage payments and utility bills on both his house and his farm. Appellant testified that over the course of the marriage, she spent a least $13,190.00 on improvements to appellee’s house and for living expenses. She stated that the $13,190.00 was proceeds from the sale of a house she owned a one-half interest in prior to the parties’ marriage.

Finding that the parties had lived separate and apart for more than eighteen months, the chancellor granted appellee an absolute divorce on those grounds effective March 27, 1992. A decree was entered on May 13, 1992, in which the chancellor found appellee to be the owner of the real properties he acquired prior to the marriage. The chancellor ordered that appellee would remain the owner of all real property owned by him prior to the , marriage and that appellant would have no interest in his real property except as provided in the decree. After considering the court-ordered appraisals, the chancellor then found that certain improvements were made to appellee’s house by the parties which caused the value of the house to increase by $6,000.00. The chancellor awarded appellant “$3,000.00 for one-half (1/2) of the increase in value of the home which resulted from the efforts of the parties.” The decree also distributed the parties’ personal property by ordering that the personalty should “remain the sole property of the one in possession.” There is little explanation of exactly what personalty was distributed. The decree also distributed part of appellee’s civil service pension to appellant.

DIRECT APPEAL REDUCTION IN MORTGAGE AS MARITAL PROPERTY

Appellant argues the chancellor erred by not considering evidence that during the parties’ marriage, the indebtedness held against appellee’s non-marital properties was greatly reduced through payments made with marital funds. Appellant argues, both below and on appeal, that section 9-12-315 permits the chancellor to award appellant one-half of the reduction in indebtedness, either as an increase in value of non-marital property, section 9-12-315(a)(2), or as a transformation of non-marital property into marital property through the investment of marital funds, section 9-12-315(a)(1)(A). Appellant claims the chancellor erred by not considering these sections of the statute when dividing the parties’ property. We agree.

With respect to the division of property in a divorce case, we review the chancellor’s findings of fact and affirm them unless they are clearly erroneous, or against the preponderance of the evidence; we review the division of property and affirm it unless it is clearly erroneous, or against the preponderance of evidence. Bagwell v. Bagwell, 282 Ark. 403, 668 S.W.2d 949 (1984); ARCP Rule 52.

In the present case, the chancellor’s finding with respect to ownership of the homestead and farm are supported by the preponderance of the evidence. Appellee owned these properties prior to marrying appellant. Section 9-12-315(b)(1) therefore excepts these two properties from the definition of marital property. In other more affirmatively phrased words, these two properties are classified as non-marital properties. We cannot say the chancellor erred in ordering that appellee remain the sole owner of these properties.

However, the chancellor did err in failing to consider that marital property was used to pay some of the debt against the non-marital properties. Earnings acquired subsequent to marriage are classified as marital property. Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984); Ark. Code Ann. § 9-12-315(b). In Bagwell, 282 Ark. 403, 668 S.W.2d 949, we stated that a chancellor may find that a non-owning spouse is entitled to some benefit by reason of marital funds having been used to pay off debts on the owning spouse’s non-marital property. We have also held that a non-owning spouse is entitled to some benefit when marital funds are used to purchase a home built on the owning spouse’s non-marital lot. Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983).

Section 9-12-315(a) gives a chancellor the discretion to divide equitably both marital and non-marital property after considering the stated factors.

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Bluebook (online)
851 S.W.2d 437, 312 Ark. 550, 1993 Ark. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/box-v-box-ark-1993.