Creson v. Creson

917 S.W.2d 553, 53 Ark. App. 41, 1996 Ark. App. LEXIS 182
Court of Appeals of Arkansas·Decided March 20, 1996·No. CA 95-79·Published·Cited by 26 cases

Opinion

Wendell L. Griffen, Judge.

Walter Creson has appealed the August 22, 1994, decree entered in the Sebastian County Chancery Court on October 12, 1994, that divided real and personal property between him and his ex-wife due to their divorce. Appellant also challenges the chancellor’s findings regarding child support that he has been directed to pay. We have conducted a de novo review of this case, and conclude that the chancellor’s findings are not clearly erroneous. Therefore, we affirm the decree.

The parties were married on November 27, 1976, were separated on April 25, 1994, and are parents of two children named Ellen Creson (born September 27, 1977) and Caleb Creson (born May 27, 1980). Appellee filed for divorce on May 11, 1994, on the grounds of general and personal indignities, and was granted a divorce upon her petition. She was awarded custody of the children, and appellant was ordered to pay child support at the rate of $102.00 per week. The divorce decree also dissolved the tenancy by the entirety by which the parties held their marital residence, and granted appellee possession and use of the residence until any of three events occurs: (a) the youngest child graduates from high school; (b) appellee ceases to live in the residence; or (c) appellee cohabits there with someone to whom she is not married. In any event, the decree provides that the residence will be sold with the equity being divided equally. Appellee will receive credit for one-half of the principal reduction that occurs from the time of entry of the decree until the sale of the residence. Appellee was awarded title to the 1987 Honda Accord automobile that was debt-free; appellant was awarded title to the 1992 Toyota truck that was subject to a debt of almost $10,000, and the parties were awarded joint ownership of the 1980 Dodge Omni automobile driven by their daughter.

One aspect of appellant’s challenge to the property distribution made by the chancellor pertains to $3,800 that has been described as “inherited property.” Appellant inherited approximately $27,000 after his parents died. The money was placed in a joint account in the names of appellant and appellee. When the divorce decree was issued, approximately $3,800.00 remained in the account. Appellant argues that the chancellor erred in finding that this sum became joint property that could be distributed equally between the parties upon their divorce.

Appellant’s contention requires that we determine whether he produced clear and convincing evidence that he did not intend to bestow a gift of the inheritance money to rebut the presumption of gift that arises whenever one spouse places property in a joint account with the other spouse. Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988). Similarly, the law presumes that when personal property is placed in the names of both husband and wife, the property is held by them as tenants by the entirety. Boggs v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 (1988). To support a finding that such property is “separate property” for purposes of property distribution upon divorce, the party seeking to rebut either presumption must present clear and convincing evidence that the property was separately owned. In either event, the requirement of clear and convincing evidence means that the proponent seeking to rebut the presumption must do so by proof so clear, direct, weighty and convincing that the fact finder is able to come to a clear conviction, without hesitation, of the matter asserted. Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction respecting the allegation sought to be established. Maxwell v. Carl Bierbaum, Inc., 48 Ark. App. 159, 893 S.W.2d 344 (1995). In McLain v. McLain, 36 Ark. App. 197, 820 S.W.2d 295 (1991), we defined clear and convincing evidence as:

evidence by a credible witness whose memory of the facts about which he testifies is distinct, whose narration of the details is exact and in due order, and whose testimony is so direct, weighty, and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the truth of the facts related.

36 Ark. App. at 199-200.

We agree with the chancellor that appellant failed to produce clear and convincing evidence to rebut the presumption, and therefore conclude that the chancellor’s finding is not clearly erroneous. The record shows that although appellee did not deposit or withdraw funds from the joint account that contained the $3,800 balance, appellant engaged in several actions that support a finding that he either bestowed a gift of the money to appellee, or created a tenancy by the entirety in it. He deposited the money in a joint account with her after his mother died. When the parties later decided to refinance the residence that was acquired during their marriage and, therefore, held by them as a tenancy by the entirety, appellant withdrew $22,000 of the money from the joint account and paid it toward the refinancing. He contends that this money was separate property because appellee agreed that he would be repaid that amount whenever the residence was sold. Appellee concedes that she told him that the money would be repaid when the resale occurred. The chancellor, however, found that the funds had been so intermingled as to become a gift. We do not consider that finding to be clearly erroneous given that the record shows that the “inheritance money” was deposited in a joint account and was deliberately invested in the marital residence by the refinancing transaction. There was also proof that appellant used money from the joint account on other purchases, such as video equipment, which became marital property. We hold, therefore, that the chancellor’s finding that the $3,800 balance should be divided equally is not clearly erroneous.

We uphold the chancellor’s finding on this point, mindful that the parties testified at trial to an agreement between them that appellant would be repaid the $22,000 that was used from the joint account to refinance their marital residence. Appellant argues that their agreement was clear and convincing proof that the money was separate property. While appellee conceded that she agreed that the $22,000 would be repaid when the marital residence was resold, she argues that this agreement was merely to accommodate appellant and avoid further discussions. The chancellor had this proof before him when he made the finding regarding the joint account, and he resolved the credibility questions concerning it. We do not find his reasoning clearly erroneous. Indeed, appellant’s argument is unconvincing when one considers that he took admittedly separate property inherited from his parents, deposited it in joint property— an account — with appellee, then withdrew $22,000 of it to invest in more joint property — their residence — that he knew was property held as a tenancy by the entirety.

Appellant also challenges the chancellor’s decisions concerning the use of the marital residence, and the distribution of automobiles that the parties own.

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Creson v. Creson, 917 S.W.2d 553, 53 Ark. App. 41, 1996 Ark. App. LEXIS 182 (Ark. Ct. App. 1996).

917 S.W.2d 553 (Creson v. Creson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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