Carter v. Cox

2014 Ark. App. 654

• Court: Court of Appeals of Arkansas
• Decided: November 19, 2014
• Docket: CV-14-247
• Status: Published

Opinion

Cite as 2014 Ark. App. 654

ARKANSAS COURT OF APPEALS DIVISION III No. CV-14-247

Opinion Delivered November 19, 2014 LYDIA CARTER, DARYL CARTER, AND GENE COX APPEAL FROM THE YELL COUNTY APPELLANTS CIRCUIT COURT [NO. CV-2012-81] V. HONORABLE DAVID H. VICKIE ANN COX AND JAMES MCCORMICK, JUDGE BANKS APPELLEES AFFIRMED

BRANDON J. HARRISON, Judge

In this family land dispute, the court dismissed appellant Gene Cox’s claim to 35.9

acres of land and gave appellee Vickie Cox sole ownership of the property. We affirm.

Vickie and her late husband, Robert, owned and lived on a seven-acre tract of land in

Yell County. The adjacent 35.9 acres was owned by the Gene Cox Family Trust, of which

Robert’s father, Gene Cox, was trustee. On 22 May 2000, Vickie and Robert bought the

35.9 acres from the trust for $21,000. The warranty deed conveyed the property to them as

husband and wife, making them presumptive tenants by the entirety under Arkansas law.

Cloud v. Brandt, 370 Ark. 323, 259 S.W.3d 439 (2007).

I.

In 2006, Gene moved in with Vickie and Robert. Gene gave them $24,000, which

he claims was to re-purchase the 35.9 acres under an agreement with Robert. Vickie’s

version of events is that Gene gave her the $24,000 for safekeeping when he closed his Cite as 2014 Ark. App. 654

checking account after a divorce. She said that she doled the money out to him in bits and

pieces when he asked for it and that he used the money to buy personal items for himself, like

a pick-up truck.

Gene eventually built a house near Vickie and Robert. The record is conflicted on

whether the house was built on the seven-acre tract or the 35.9-acre tract.

Robert was diagnosed with dementia in late 2009 and went missing in February 2011.

Shortly before his diagnosis, he gave his sister, appellant Lydia Carter, power of attorney to

transact his business. After Robert disappeared, Lydia used her authority to draft a deed in

February 2012 conveying Robert’s “undivided one-half interest” in the 35.9 acres to Gene.

Vickie did not join in or consent to the deed.

In September 2012, Robert was declared legally dead by court order. Vickie, as the

surviving tenant by the entirety, asserted full ownership of the couple’s real property,

including the 35.9 acres. She leased the acreage to appellee James Banks for hay-cutting.

Gene claimed an interest in the property under a February 2012 power-of-attorney deed and

his alleged purchase of the property for $24,000. Vickie and Mr. Banks sued to settle the

ownership question. Gene counterclaimed.

After a bench trial, the circuit court determined that Vickie became the fee-simple

owner of the 35.9 acres as the surviving tenant by the entirety upon Robert’s death. The

court ruled that the power-of-attorney deed did not destroy the tenancy by the entirety, that

Gene failed to prove an agreement that Robert and Vickie intended to reconvey the

property, and that Gene failed to prove that he bought the property for $24,000.

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Additionally, the court declared that Gene’s counterclaim was barred by the statute of

limitations. The court ruled for Gene on the point that he could live in the house he had

built for the rest of his life, which Vickie agreed to before the litigation started. Gene,

Lydia, and Daryl appealed.

II.

The standard of review on appeal from a bench trial is whether the circuit court’s

findings are clearly erroneous or clearly against the preponderance of the evidence. Welsh v.

Mid-South Bulk Servs., Inc., 2011 Ark. App. 728. Findings are clearly erroneous when,

although there is evidence to support them, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been committed. City of Jacksonville

v. Nixon, 2014 Ark. App. 485, ___ S.W.3d ___. We give due deference to the superior

position of the circuit court to determine the credibility of witnesses and the weight to be

given their testimony. Welsh, supra.

Applying these standards, there is no clear error in the circuit court’s decision that

Vickie and Robert owned the 35.9 acres as tenants by the entirety. An estate by the entirety

is peculiar to marriage and entails the right of survivorship. Lowe v. Morrison, 289 Ark. 459,

711 S.W.2d 833 (1986). A spouse’s right of survivorship in real property can only be

dissolved by a divorce proceeding, death, or the voluntary action of both parties. Butcher v.

Beatty, 2010 Ark. 130; Lowe, supra. The February 2012 power-of-attorney deed, executed

while Robert was still alive, did not destroy Vickie’s survivorship right in the 35.9 acres by

any of these means. Her right of survivorship ripened into sole ownership upon Robert’s

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death in September 2012. She then acquired full ownership of the 35.9 acres, and Gene took

nothing by the power-of-attorney deed.

Regarding Gene’s argument that he had an equitable interest in the 35.9 acres and was

entitled to various equitable remedies, he testified that he paid $24,000 to re-purchase the

land, paid taxes on it, and built a house on it. Gene’s contention that he built his house on

the 35.9 acres lends some support to his claim to an equitable interest in the property, but he

offered no dollars-and-cents proof that his house increased the value of the land. And as we

have mentioned, the evidence is fuzzy on whether the house was even built on the 35.9 acres

in the first place. In any event, the court found his testimony disputed and lacking in

credibility. Facts in dispute and determinations of credibility are solely within the province

of the fact-finder. City of Jacksonville, supra.

To round out our discussion, we decline Gene’s invitation to remand based on the

Betterment Statute, Ark. Code Ann. § 18-60-213 (Repl. 2003), because the argument was

not made below. Joshlin Bros. Irrigation v. Sunbelt Rental, Inc., 2014 Ark. App. 65. Nor will

we address Gene’s argument that Robert acted as Vickie’s agent in agreeing to reconvey the

property because it was not previously raised and ruled upon. Id.

III.

The circuit court’s order is affirmed. Given our holding, we do not need to address

the court’s ruling that Gene’s claim was barred by the statute of limitations. Affirmed. HIXSON and WOOD, JJ., agree. Orvin W. Foster, for appellants. The Streett Law Firm, P.A., by: Alex G. Streett, James A. Streett, and Robert M. Veach, for separate appellee Vickie Ann Cox. 4