Davis v. Davis

84 S.W.3d 447, 79 Ark. App. 178, 2002 Ark. App. LEXIS 517
CourtCourt of Appeals of Arkansas
DecidedSeptember 25, 2002
DocketCA 02-156
StatusPublished
Cited by38 cases

This text of 84 S.W.3d 447 (Davis v. Davis) 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
Davis v. Davis, 84 S.W.3d 447, 79 Ark. App. 178, 2002 Ark. App. LEXIS 517 (Ark. Ct. App. 2002).

Opinion

Josephine Linker Hart, Judge.

Hazel Davis has appealed from three aspects of a divorce decree that ended her forty-nine-year marriage. She contends that the trial judge should have awarded her a one-half interest in a farm to which appellee William Davis acquired title before the parties were married and that the judge awarded an insufficient amount of alimony. She also argues that the judge should have awarded an increased amount of child support for the parties’ disabled adult daughter, for whom appellant provides full-time care. We affirm the child-support award and reverse and remand as to alimony and the division of the farm.

The parties married in 1952, when appellant was fifteen years old. Throughout the marriage, appellant did not work away from the home. The parties had four children during the marriage; one child died in infancy and another, Vicki, was born in 1956 with a serious mental handicap. Vicki mentally performs at the level of a seven-year-old and requires full-time care; there is no dispute that her needs prevent appellant from working outside the home.

In 1951, about six months before the marriage, appellee purchased a 211-acre farm in Arkansas County for $21,500, and borrowed the entire purchase price. The first payment on this debt was made after the parties married. The debt was satisfied by income that appellee generated from farming. Both parties later signed applications for loans that were used to improve the farm. On the loan applications, the farm was listed as belonging to both of them. At the time of trial, their son farmed this property and paid rent to appellee. The parties’ son-in-law, George Juhl, testified that the farm now has a value of between $1,500 and $2,000 per acre. Appellee’s brother, Johnny Davis, testified that its value was between $1,800 and $2,000 an acre.

In addition to the 211-acre farm, the parties acquired a significant amount of other property, both real and personal, during the marriage. One item of personal property that was not litigated was appellee’s acquisition of stock in a family farm corporation, Davis Farms, Inc. According to the parties’ daughter, Cynthia Juhl, appellee inherited some of this stock and purchased the rest. Appellant presented evidence, and appellee admitted, that he had taken steps to transfer marital property, including his stock in Davis Farms, to their son before the divorce. Although appellee explained that he did so to enable his son to use the stock as collateral for a loan, he denied having any further interest in this stock. Cynthia stated that appellee had told her that he had loaned the stock, and had not given it, to her brother. Additionally, Johnny Davis testified that appellee had stated on more than one occasion before the divorce that he was “getting everything fixed” to protect his assets from appellant and Vicki.

On his affidavit of financial means, appellee fisted his total monthly expenses as $1,370. Appellant listed her and Vicki’s monthly expenses as $2,526.50. Appellant and Vicki each draw $441 in social security benefits, and Vicki receives $90 in Supplemental Security Income (SSI) benefits. Appellee receives social security benefits of approximately $930 per month. In addition to his social security income, his affidavit reflected an annual income of $18,500 from the rental of the farm and $10,000 from machinery rental.

In the decree, the trial judge found that Vicki is in need of support and set appellee’s child-support obligation at $180 per month, noting that this amount is in addition to the social security benefits that she receives. The judge awarded appellant alimony in the amount of $300 per month. The judge found that the farm is nonmarital property. However, he awarded appellant the right to occupy the house on this property because she is Vicki’s primary caregiver. He ordered appellant to pay for the utilities and normal maintenance on the house, and made appellee responsible for major maintenance and repairs, taxes, and insurance on it.

The judge ordered the parties’ marital property, both real and personal, to be divided equally. This property included two parcels of real estate in Jefferson County, life insurance policies, an IRA, stock certificates, several bank accounts, a 1994 Lincoln Town Car, farm equipment, a GMC truck, and four guns. The judge ordered the real property in Jefferson County to be sold and the proceeds divided equally.

Arguments

Appellant makes the following arguments on appeal: (1) the judge erred in failing to award her a one-half interest in the farm; (2) the judge set her alimony too low; (3) the judge set child support too low.

The Property Division

Appellee asserts that appellant cannot argue on appeal that she was entitled to an interest in the farm because she failed to make this argument at trial. We disagree. Appellant presented extensive testimony about the parties’ residence on the farm throughout their long marriage and introduced as exhibits copies of the loan applications upon which she and appellee had listed the farm as a joint asset. Our review of the record reveals that, at trial, it was clear that appellant was asserting an interest in the property. Appellant adequately preserved this issue for purposes of appeal.

The burden was on appellee to establish that the farm was his separate nonmarital property. Aldridge v. Aldridge, 28 Ark. App. 175, 773 S.W.2d 103 (1989). The trial judge’s findings as to the circumstances warranting a property division will not be reversed unless they are clearly erroneous. Dennis v. Dennis, 70 Ark. App. 13, 13 S.W.3d 909 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed. Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001). We are left with such a conviction in this case.

We believe that the trial judge clearly erred in finding that the farm is appellee’s nonmarital property. It is true that Ark. Code Ann. §§ 9-12-315(b)(1), (5), and (7) (Repl. 2002) provide that all property acquired prior to the marriage, its increase in value, and its income are not marital property. See Thomas v. Thomas, 68 Ark. App. 196, 4 S.W.3d 517 (1999). 1 However, a spouse’s earnings acquired subsequent to marriage are classified as marital property. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). Appellee’s earnings from farming were, therefore, undis-putably marital property. When dividing the parties’ marital and nonmarital property, the trial court should consider that marital property was used to pay a debt that one spouse incurred prior to the marriage. Id.; Bagwell v. Bagwell, 282 Ark. 403, 668 S.W.2d 949 (1984); see also Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983).

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Bluebook (online)
84 S.W.3d 447, 79 Ark. App. 178, 2002 Ark. App. LEXIS 517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-davis-arkctapp-2002.