Brown v. Brown

284 S.W.3d 17, 373 Ark. 333, 2008 Ark. LEXIS 296
CourtSupreme Court of Arkansas
DecidedMay 1, 2008
Docket07-994
StatusPublished
Cited by23 cases

This text of 284 S.W.3d 17 (Brown v. Brown) 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
Brown v. Brown, 284 S.W.3d 17, 373 Ark. 333, 2008 Ark. LEXIS 296 (Ark. 2008).

Opinion

Annabelle Clinton Imber, Justice.

Appellant Mark Brown appeals from an order of the Union County Circuit Court, which divided marital property and set child support. He cites the following four points where the circuit court erred: 1) in determining the amount of child support when it considered the income attributable to Mark in a limited partnership; 2) in considering Mark’s interest in the limited partnership to justify an unequal division of marital property; 3) in finding that the increase in value of the limited partnership’s stock brokerage accounts was marital property; and 4) in finding that two residences were marital property. Because this appeal presents issues of first impression and of significant public interest, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l) & (4) (2007). We find no error and affirm.

Mark and Laura Brown were married in September of 1986 and separated in July of 2005. Laura sought a divorce from Mark on the grounds that they had been living separate and apart for eighteen continuous months. Following a trial, the circuit court entered a decree of divorce, granting temporary custody of the two minor children to Laura, setting temporary child support at $250 per week, and taking all issues of property division under advisement until such time as posttrial briefs were submitted. A letter opinion confirmed by final decree granted custody of the children to Laura and ordered Mark to pay child support in the amount of $384 per week, based on his two-year average income. The circuit court determined that the increase in value of Mark’s inheritance from his father, which was maintained in a limited partnership with Mark’s mother, was marital property. The court also found that the marital residence and another piece of real estate, both of which his mother had helped to purchase with funds from the limited partnership, were marital property. Because Mark’s non-marital estate was valued at $3,032,703, while Laura’s was valued at only $306,780, the court found an unequal division of the marital property to be appropriate. Mark filed a timely notice of appeal. 1

The limited partnership at issue in this appeal was formed in 1995 under the laws of the State of Louisiana. Mark’s father, George A. Brown, had earned considerable income as the owner of cocktail lounges, liquor stores, and commercial real estate. He died in 1990 and had bequeathed to Mark, his only child, all property owned at his death, with the exception of the marital home and certain furnishings within it and his wife’s one-half share of their community property estate. George A. Brown’s will noted that Mark’s inheritance was “subject to the usufruct heretofore granted to my wife, Billie Jean Brown.” Mark and his mother, Billie Brown, created the G.A. Brown Properties Limited Partnership after George A. Brown’s death, for the purpose of managing the estate.

Billie Brown was the sole general partner and was also a Class A limited partner; Mark was a Class B limited partner. Each owned a fifty percent partnership interest. Mark contributed to the partnership the property he had inherited from his father, and Billie Brown contributed her one-half share of the community property estate. The partnership agreement contained the following provision:

Mark S. Brown specifically acknowledges that pursuant to the Judgment of Possession rendered by the First Judicial District Court, Caddo Parish, Louisiana in the Succession of George A. Brown on August 25,1993, as amended by said Court on November 12,1993, the property which he contributes to this Partnership is subject to a usufruct in favor of his mother Billie J. Brown and that such usufruct attaches to and continues over the Class B Limited Partnership interest which he receives in exchange for such property on the same terms and conditions as the usufruct over the contributed property itselfj.]

According to the agreement, the partnership’s profits and losses were to be allocated proportionately between the partners, according to their partnership interests. Mark testified that his mother had discretion as to whether to share the partnership’s income with him. He stated that his mother had gifted certain amounts of money to him from the partnership’s assets, but that he had not received income from the partnership. An accountant testified, however, that Mark’s mother had the option to “yield” the usufruct with respect to properties in the partnership that had been changed from their original form. If the property was no longer part of the original corpus, Billie Brown could allocate a portion of its income to her son, provided that he was willing to accept the income and to pay taxes on it. According to the accountant’s testimony, Billie Brown had in the past chosen to allocate certain income to Mark, and he had accepted the income.

The marital residence was purchased with funds provided by Mark’s mother from the G.A. Brown Properties Limited Partnership. Testimony by the parties and by Mark’s mother indicated that the home was intended to be a gift. Mark and Laura later acquired a mortgage on the house to pay for an addition. Payments on the note were made by Mark and Laura.

The other property at issue, known as the West Oak Street property, was purchased as a home for Mark’s mother, who at one point intended to relocate to El Dorado from her former home in Shreveport, Louisiana. The funds for the down payment on the property and for some, if not all, of the mortgage payments came from the G.A. Brown Properties Limited Partnership. For estate-tax purposes, however, the property was titled jointly in the names of Mark and Laura. At the time of trial, Mark’s mother had not yet moved into the home, and Mark was residing there. While Laura agreed that the purpose of purchasing the property was to provide a home for Mark’s mother, she contended that she had an interest in the property, as it was titled in her name along with Mark’s.

I. Child Support

For his first point on appeal, Mark argues that it was error for the circuit court to consider his income from the limited partnership in determining the appropriate amount of child support, because that income was not available for his use. Fie contends that the usufruct in favor of his mother prevented him from realizing any income from the partnership and that the only distributions made to him were provided so that he could pay taxes on the income attributed to him.

Our standard of review for an appeal from a child-support order is de novo, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Hardy v. Wilhourne, 370 Ark. 359, 259 S.W.3d 405 (2007). In reviewing a circuit court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. However, a circuit court’s conclusion of law is given no deference on appeal. Id.

In determining an appropriate amount of child support, courts are to refer to the family support chart contained in our Administrative Order Number 10. See Ark. Code Ann. § 9-12-312(a)(2) (Repl. 2008). The family support chart provides a means of calculating child support based on the payor’s net income.

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Cite This Page — Counsel Stack

Bluebook (online)
284 S.W.3d 17, 373 Ark. 333, 2008 Ark. LEXIS 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-brown-ark-2008.