Dalrymple v. Dalrymple

47 S.W.3d 920, 74 Ark. App. 372, 2001 Ark. App. LEXIS 555
CourtCourt of Appeals of Arkansas
DecidedJuly 5, 2001
DocketCA 00-886
StatusPublished
Cited by12 cases

This text of 47 S.W.3d 920 (Dalrymple v. Dalrymple) 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
Dalrymple v. Dalrymple, 47 S.W.3d 920, 74 Ark. App. 372, 2001 Ark. App. LEXIS 555 (Ark. Ct. App. 2001).

Opinions

JOHN F. STROUD, Jr., Chief Judge.

In this appeal, we are J asked to review the chancellor’s findings regarding the division of property and the allocation of debts in a divorce case. Appellant makes three arguments: 1) that the chancellor erred in ruling that appellee’s corporation, Dalrymple Insurance Agency, Inc., was nonmarital property; 2) that the chancellor erred in ruling that the agency’s renewal commissions were nonmarital property; and 3) that the chancellor erred in ruling that two bank notes representing approximately $41,000 in debt were marital debts rather than corporate debts. We affirm on the first two points and reverse on the last.

Appellant and appellee were married in June 1987. Approximately thirty years prior to the marriage, appellee founded the Dalrymple Insurance Agency. He operated the business as a sole proprietorship until January 1989, eighteen months into the parties’ marriage. In that year, he transferred the assets of the sole proprietorship to Dalrymple Insurance Agency, Inc., in exchange for corporate stock. The stock was issued in his name only.

In the divorce proceeding, filed in 1998, appellant asked the court to declare that the stock of Dalrymple Insurance Agency, Inc., was marital property. Appellee opposed appellant’s request on the ground that the stock was acquired in exchange for nonmarital property, i.e., the assets of the sole proprietorship. The chancellor ruled in favor of appellee and declared that the corporation was his separate property. The first issue on appeal is whether the chancellor’s ruling was in error.

Our standard of review in chancery cases is well settled. Chancery cases are reviewed de novo on appeal. See Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000). With respect to the division of property in a divorce case, we affirm the chancellor’s findings unless they are clearly erroneous. See Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000). Due deference is given to the chancellor’s superior ability to determine the credibility of the witnesses and the weight to be accorded their testimony. Hunt v. Hunt, supra.

Marital property is all property acquired by either spouse subsequent to the marriage, with certain exceptions fisted in Ark. Code Ann. § 9-12-315(b) (Repl. 1998). The relevant exception in this case is contained in section 9-12-315(b)(2), which provides that property acquired in exchange for property acquired prior to the marriage is not marital property. Whether this exception applies depends upon whether appellee actually used nonmarital property to acquire the stock of Dalrymple Insurance Agency, Inc.

The facts relevant to the acquisition of the corporate stock are as follows. In 1989, appellee executed a document that assigned his business assets to Dalrymple Insurance Agency, Inc., in exchange for 100 shares of common stock.1 The corporation’s 1989 tax return reflected that, as a result of the exchange, assets valued at $14,568 were received by the corporation. A stock certificate was issued evidencing appellee’s ownership of 100 shares in Dalrymple Insurance Agency, Inc. According to appellee, he used no marital assets to purchase the shares of stock.

Appellant argues on appeal that appellee did not prove that he acquired the corporate stock with nonmarital property.2 She claims first that, in effecting the exchange of assets from the sole proprietorship to the corporation, appellee drew on an account in which marital and nonmarital funds were commingled. She bases her claim on the assertion that, just prior to the marriage in 1987, appellee had only one bank account. She deduces that, as a result, it is likely that business and personal funds were commingled in that one account between 1987 and 1989 and that those commingled funds were later used to acquire the corporate stock. However, appellant’s argument is belied by her own testimony that, almost immediately after getting married, she and appellee opened a separate household account. Given that separate business and household accounts existed between 1987 and 1989, it would be pure speculation to assume that business and personal funds were commingled in either.

Appellant claims further that appellee’s evidence was simply insufficient to sustain his burden of proving that the stock was acquired in exchange for nonmarital property. We disagree. First, appellee testified that he used strictly nonmarital funds to acquire the stock. This testimony was not disputed by appellant. When the issue is whether a source of funds is marital or nonmarital, we defer to the chancellor’s superior position to resolve credibility questions pertaining to the issue. See Wright v. Wright, 29 Ark. App. 20, 779 S.W.2d 183 (1989). Second, appellee had operated the business as his own for thirty years before he married the appellant. It is therefore unlikely that, by changing the business from a sole proprietorship to a closely held corporation for tax purposes, he intended to change its status from nonmarital to marital property. Third, the stock certificates were issued solely to appellee, a factor considered significant in Cate v. Cate, 35 Ark. App. 79, 812 S.W.2d 697 (1991). Fourth, as already discussed, there was no evidence that business and personal funds were commingled. Finally, the assignment and tax documents reflected appellee’s intention that the acquisition of stock be accomplished solely by the transfer of business assets. In fight of these factors, we affirm the chancellor’s decision that the corporation was nonmarital property.

The dissent would have us apply the holding of Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987), and declare that any increase in the value of the corporation became marital property by virtue of appellee’s efforts. This point is not argued by appellant. It is well recognized that, if a party fails to make a particular argument on appeal, that argument is considered abandoned. Texarkana Housing Auth. v. Johnson Constr. Co., Inc., 264 Ark. 523, 573 S.W.2d 316 (1978). Any basis for reversing a case on appeal should originate in the arguments advanced by the appellant, not from arguments created by appellate judges.

Appellant argues next that the agency’s renewal commissions should have been declared marital property subject to division. At the time of the divorce, Dalrymple Insurance Agency, Inc., was authorized to sell fife and disability policies for approximately eight companies. Expert testimony was given at trial to the effect that insurance companies commonly pay renewal commissions to agencies from the second through the tenth years following issuance of the policy, so long as premiums are paid and the policy remains in force. Appellant’s expert determined that the net present value of renewals collectible by the agency through 2008 was $330,094. Appellee’s expert determined that the net present value of the renewals was $69,139.

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Dalrymple v. Dalrymple
47 S.W.3d 920 (Court of Appeals of Arkansas, 2001)

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Bluebook (online)
47 S.W.3d 920, 74 Ark. App. 372, 2001 Ark. App. LEXIS 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalrymple-v-dalrymple-arkctapp-2001.