Cite as 2025 Ark. App. 431 ARKANSAS COURT OF APPEALS DIVISION III No. CV-24-320
GEORGE ROTHWELL Opinion Delivered September 17, 2025
APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. FOURTEENTH DIVISION [NO. 60DR-23-28] TERRY ROTHWELL APPELLEE HONORABLE SHAWN J. JOHNSON, JUDGE
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
WENDY SCHOLTENS WOOD, Judge
George Rothwell (“Ben”) appeals the amended and substituted divorce decree ending
his forty-year marriage to Terry Rothwell (“Terry”). Ben’s appeal challenges seven of the
court’s findings valuing and dividing the couple’s marital property. We affirm in part and
reverse and remand in part.
I. Facts and Procedural History
The parties married in 1981. They do not have children. In 1986, they founded
Celerit Corporation (“Celerit”), an S corporation that provides information-technology
consulting services to banks.1 Terry is the sole shareholder and the CEO of Celerit, but the
1 The parties also own Celerit Solutions Corporation, which was not profitable at the time of the divorce and was being consolidated with Celerit. parties do not dispute that Celerit is marital property. Ben had limited involvement in
Celerit during the marriage and served on the company’s board of directors until 2020, when
Terry removed him from the board and barred him from the Celerit building. Celerit
constitutes the majority of the parties’ marital estate. The parties also own CRE Holdings,
LLC, a real estate holding company, which leases an office building and data center to
Celerit.
During their marriage, Terry focused on running Celerit, and Ben managed the
couple’s personal finances and investments. The parties’ principal disputes include two of
Ben’s investments: his creation in 2016 of Eskimo & Tucker’s Gold, LLC, a gold-mining
venture, and his investment in a treasure-hunting venture in the Philippines, which began
in 2017. These investments never produced any income or profit.
On June 15, 2020, Ben filed a complaint for divorce,2 and on August 5, the circuit
court entered an agreed temporary order pending the outcome of the divorce to address the
parties’ use of three jointly owned lines of credit (“LOCs”); their two primary homes—one in
Heber Springs and one in Little Rock; their bank accounts; and Celerit. The order stated in
relevant part that, although both parties have equal and open access to the LOCs because
both parties’ names are on them, LOC1, a $1 million business LOC, would continue to be
used by Celerit for business purposes only; LOC2, a $2 million LOC, could be used by Terry
to draw up to $250,000 pending the divorce; and LOC3, a recently opened $1 million LOC,
2 The case was initially filed in the Cleburne County Circuit Court but was transferred to the Pulaski County Circuit Court in December 2022.
2 could be used by Ben to draw up to $250,000 pending the divorce. The temporary order
required the parties to agree in writing to any funds drawn by either party over $250,000.
The parties acknowledged that any assets acquired or liabilities incurred were marital in
nature and would be adjudicated by the court at the final hearing. The order further
provided that Celerit employee Karen Johns would continue paying all the Rothwell’s
personal expenses from their joint checking account and that the Celerit operating account
would “maintain up to $600,000.” Terry was to pay any operating-account funds in excess of
$600,000 toward the outstanding balance of LOC2. The order also required Terry to provide
Ben with Celerit’s monthly financial reports. Finally, the parties agreed that Terry could
withdraw up to $250,000 from LOC2 to complete renovations on the Little Rock home.
In December 2022, Ben filed a motion to show cause, a motion to amend the
temporary order, and a motion to compel the sale of Celerit. Relevant to this appeal, Ben
alleged that Terry violated the temporary order by refusing to “sweep” the Celerit operating
account to pay down LOC2 when the amount exceeded $600,000, by refusing to provide
him with Celerit’s monthly financial reports, and by instructing Ms. Johns not to pay the
expenses for the treasure-hunting venture. In January 2023, Ben filed a motion for attorney’s
fees, alleging that Terry had restricted his access to marital funds, leaving him no money to
pay “bills” that included several invoices for his attorney’s fees and costs that he had
submitted to Ms. Johns for payment but that she did not pay. Ben alleged that the LOCs
were “maxed out” and that the joint checking account was empty. He also asked the court
to award him past and future attorney’s fees and costs.
3 At a hearing on his motion for attorney’s fees, Ben’s attorney clarified that Ben was
not requesting attorney’s fees from Terry. Rather, he was asking the court to give him access
to marital funds in order to pay his attorney. Terry argued that Ben did have marital funds
to pay his attorney but had paid a treasure hunter over $50,000 in the previous four months
instead. Ben acknowledged that Ms. Johns had paid his living expenses but said that she did
not pay an invoice from his attorney, the ongoing expenses of the treasure-hunting venture,
or his maid. He said they had paid $12,600 a month for the venture since 2017, claimed
that he had individually been paying it since Ms. Johns stopped paying it four months earlier,
and admitted that he had funded the venture rather than paying his attorney. The court
denied Ben’s motion for attorney’s fees.
On March 6, Terry filed a motion for contempt and to modify the temporary order,
alleging that Ben violated the temporary order by withdrawing funds in excess of $250,000
from LOC3 as well as the other LOCs without her agreement and stating that the LOCs
were “maxed out.” The court held a hearing on May 8 on Terry’s motion and on Ben’s
remaining motions.
At the May hearing, Ben testified that Terry, through Ms. Johns, paid for all his living
expenses, three credit cards that he used regularly, various home repairs, and several
vacations; that he had two retirement accounts he could draw from but chose not to; and
that he was educated and in good health. He said he earned approximately $5,000 a month
from rental income and oil and gas leases. Regarding the gold-mining and treasure-hunting
ventures, Ben said that he had invested in gold-mining leases in 2016 and had also purchased
4 gold-mining equipment for more than $1 million. He explained that he began the treasure-
hunting venture in 2017 by paying Nathanial Ellis $150,000 a year to hunt for treasure in
the Philippines, that Mr. Ellis was a truck driver before Ben hired him, that there was no
written contract between him and Mr. Ellis, that Ben had never been to the Philippines to
check on the progress Mr. Ellis was making, that Mr. Ellis had not found any treasure in the
seven years that Ben had been paying him, and that Ben had paid Mr. Ellis over $900,000
since the venture began. Ben said that he started the venture without Terry’s knowledge in
2017 because she had recently suffered a heart attack. He said that Terry stopped authorizing
the $12,600 monthly payment to Mr. Ellis for the venture in November 2022; thus, he (Ben)
had made the payments himself since that time. He testified that he made the payments with
cash from his safe, which contained the oil and gas revenues he had been saving for years.
Finally, he said that he had also invested money in another treasure-hunting venture called
Seafarer and had recently purchased approximately $60,000 in boat motors for that venture
from a marine dealership in Fort Lauderdale. He admitted that Terry had not agreed to the
purchase.
Terry testified that she provided Ben with quarterly reports from Celerit, explaining
that the accounting firm no longer prepares monthly reports. She said that the three LOCs
were maxed out with a total owed of $4 million. She understood that the temporary order
required her to sweep the Celerit account to pay down the LOCs but said that she had not
done so in order to preserve the marital estate. She claimed that if she swept the account to
pay down the LOCs, Ben would “take all of the money within days.” She said that she had
5 not known about Ben’s treasure-hunting investment and monthly payments to Mr. Ellis until
2020 when she was looking at Ms. Johns’s computer after Ben filed for divorce. After she
learned from Ben’s deposition that Mr. Ellis was a truck driver, that they were wiring $12,600
to him in Idaho every month, that there was no written contract between Mr. Ellis and Ben,
and that it was unclear what happened to the money after it was wired to Mr. Ellis, she asked
Ms. Johns to stop making the monthly payments. She said that she had no involvement in
any of their investments: her responsibility was the company, and Ben’s was investments.
She testified that neither the Philippines investment nor the gold-mining investment nor the
Seafarer investment had ever produced income.
Ms. Johns testified that she was an employee of Celerit and paid all the parties’
personal expenses. She said that in 2022, Ben’s living expenses were $361,529.18, and
Terry’s were $135,613.77. She testified that since the temporary order was entered in August
2020, in addition to her paying Ben’s living expenses, Ben had withdrawn $895,720 from
LOC2; $115,000 from LOC3; and $24,600 from LOC1. She said that the “vast majority” of
these expenses was related to treasure hunting or stock purchases. She said that Terry had
spent a total of $1 million renovating their home in Little Rock, $404,996.32 of which was
spent since entry of the temporary order.
On May 16, the court entered an order denying the parties’ motions for contempt
and their motions to modify the temporary order; however, the court ordered Terry to pay
Ben $154,996.32 from the Celerit operating account as an “early property settlement.” The
court found that this amount represented the difference between the amount the temporary
6 order authorized Terry to spend completing renovations to the parties’ Little Rock home
($250,000) and the actual cost of the post-temporary-order renovations ($404,996.32). The
court stated that the $154,996.32 “shall be accounted for and credited to” Terry in the final
division of property. The court also forbade Ben from accessing any funds from the LOCs.
Finally, the court reserved Ben’s motion to compel the sale of Celerit for the final hearing.
After mediation in July 2023, the parties entered into an agreed order on August 3
regarding the division of many of their marital assets and debts and agreed that the principal
issues left for the court to decide included the valuation of Celerit and Celerit’s and Celerit
Solutions’ office buildings. The agreed order further provided that “[n]othing in this order
negates any arguments regarding marital waste or financial responsibility which may impact
the division of marital property and credits to be issued.”
A final hearing was held on August 3. At this hearing, Terry testified that the parties
started Celerit in 1986 to provide temporary IT consultants to various businesses. She said
that she is and has always been Celerit’s CEO. Terry testified that she did not know the value
of Celerit because she is “not an appraiser.” She explained that she opined in her November
2022 deposition that Celerit was worth between $20 and $25 million because Ben had
included that amount on a 2022 financial statement. She also testified that Celerit’s profit
margins had changed over the past three or four years due to a merger between
BancorpSouth, their largest client, and Cadence Bank.
Terry said that Celerit would continue to need its office building and the data center
where Celerit Solutions currently operates once it absorbs Celerit Solutions because the
7 Celerit systems are located there, and Celerit will continue to keep all the employees. Terry
testified that the office building and data center were appraised for $1.625 million in March
2022 in connection with the sale of Celerit to Sollensys, which was not consummated. She
said that Ben had agreed with the terms of the sale.
Terry testified that any distributions she had received from Celerit since entry of the
temporary order had been used to pay interest on the LOCs. She said that between 2020
and 2023, she had paid $451,000 in interest on LOC1 and LOC2. Defendant’s exhibit
D10A shows that the total interest paid on all three LOCs from 2020 through the date of
the hearing was $498,570.69. Terry said that after the temporary order was entered, she
initially swept the Celerit operating account to pay the LOCs as required but eventually quit
because Ben removed money from the LOCs every time she paid them down. She said that
this was in spite of the fact that she paid all of Ben’s living expenses, credit cards, and health
insurance. She said Ben had never “paid for anything” or “put a penny in the bank accounts.”
Terry stated that she had no, or very little, involvement in managing the parties’
personal finances during the marriage. She did not look at their bank statement or
QuickBooks, pay any bills, keep up with the personal lines of credit, or make personal
investments. She said that her responsibility was to take care of the company, the employees,
and the clients and that she trusted Ben to take care of their personal finances and
investments. She also testified that Ben worked with their accountants to prepare the parties’
tax returns each year and that she had never personally reviewed them.
8 Regarding specifically the 2022 financial statement that contained a valuation for
Celerit, Terry testified that Ben had always prepared the parties’ personal financial
statements, including that one, and that she had never assisted in their preparation. Ben
valued Celerit at $19.675 million in the 2022 financial statement. Terry testified that she
did not conduct independent research regarding that valuation, did not assist in preparing
the financial statement, and—aside from Steven Schroeder, the expert she hired for the
divorce hearing—had never hired an independent business appraiser, CPA, accountant, or
other professional to value Celerit. She said that the balance on the LOCs in 2022 was $4
million and that if she had not agreed with the valuations Ben gave to the bank, the bank
would have foreclosed on the loans.
She admitted that she knew “bits and pieces” about the gold-mining venture in the
beginning but said Ben had never consulted her about it, and she had no idea that he had
been investing millions of dollars in equipment, travel, and attorney’s fees connected with
the venture. She said that she learned about the purchase of a $230,000 airplane for the
gold-mining investment the morning he wired funds for the plane. She said that she told
him not to do it. Regarding the other funds spent by Ben, Terry learned that he had been
spending millions after she was served with divorce papers and began preparing “accounting
work.” When she learned about the monthly treasure-hunting payments, she said it would
have been impossible to prevent Ben from using the LOC and their joint checking account
to make the payments since he had equal access to the accounts and did not need her
9 approval. She said that she did not want any interest in either the gold-mining or the treasure-
hunting ventures.
Terry testified that Ben had taken a minimum of $4 million from marital assets over
a seven-year period for what amounted to gambling, that he had maxed out their LOCs, that
he had not put one penny into the parties’ joint accounts or paid anything towards their
LOCs, that the gold-mining and treasure-hunting ventures were not investments but
“scam[s],” and that he could not even explain where any of the money went. She asked the
court for credit or for an unequal division of property to compensate her for the $4 million
he had spent on those ventures and for the $498,570.69 in interest payments she made on
the LOCs Ben maxed out to pay for the ventures. She also asked the circuit court to credit
her for the $154,996.32 Ben received as an early property settlement after the May 2023
hearing and for reimbursement for a $13,907 check he wrote to his attorney from their joint
account after the court had already awarded him $154,996.32 to pay his attorney.
Ben testified that he had not been involved with Celerit for about a decade but said
he did prepare the financial statement in December 2022, which included a value for Celerit
of $19.675 million. He included a value of $2 million for the data center used by Celerit
Solutions. He said they had never found anyone who would appraise the building as a data
center—including all the fiber-optic loops and electronic equipment, raised floors, lowered
ceilings, and security—rather than as an office building, so he had to “fudge” the $2 million
number. Regarding his method for valuing Celerit at $19 million, he said that he used a
“template” that came from his accounting firm because he did not like paying the accounting
10 firm to prepare a financial statement that he could prepare himself and said that he had used
EBITDA3 to assign a value. However, he could not explain exactly how he used the EBITDA
formula to arrive at a precise number.
Ben said that since the temporary order, he had used the parties’ LOCs to purchase
$200,000 worth of Sollensys stock (which was worthless at the time of the hearing), to
continue investing in the gold-mining venture, and to make the payments for the treasure-
hunting venture in the Philippines. He said he did not have a checking account and did not
deposit money into the parties’ joint checking account; rather, he said that he used funds
from oil and gas investments, rental payments, and the $154,996.32 the court awarded him
in May 2023. However, he admitted writing a check in July 2023 from the parties’ joint
checking account for $13,907 to pay his attorney. He acknowledged that the court had
specifically awarded him “an early division of property [of] $154,000” in May to make this
payment, but he justified the $13,907 check because he did not think the $154,000 was
“specific for that cause.”
Ben said that he invested in gold mining in 2016 due to the “benefits of the taxation.”
He testified that he had no background in gold mining and that Terry had less knowledge
or experience than he did. He also said that Terry had “negligible involvement” with the
gold-mining investment. He admitted that he had purchased $1 million worth of equipment
3 EBITDA stands for earnings before interest, taxes, depreciation, and amortization.
11 for the gold-mining operation in addition to investing in leases. He conceded that he had
never received a return on his gold-mining investment and that no gold had been found.
Regarding the Philippines treasure-hunting venture, Ben testified that in 2017, after
getting Mr. Ellis’s name from Norman Missionaries and doing some “internet research,” Ben
had hired Mr. Ellis. Ben did not meet Mr. Ellis until February 2023 in Las Vegas, six years
after his initial investment. Ben said that he paid Mr. Ellis a lump sum of $150,000. Shortly
thereafter, Ben began paying Mr. Ellis $12,600 each month through June 2023. He testified
that the fee was paid by Ms. Johns or him. This monthly amount did not include the
purchase or repair of equipment, which Ben occasionally paid for. He said that Terry was
not told about the initial investment in this venture but that she was told about it after she
recovered from her heart attack. Ben said that he had never traveled to the Philippines, that
Mr. Ellis had never found treasure, and that he and Mr. Ellis did not have a written contract.
Ben said that he and Mr. Ellis had a verbal agreement to split any treasure that was found.
Karen Johns testified that she had been paying the parties’ living expenses since before
the divorce was filed and that she used money from their joint checking account to pay both
parties’ expenses after the divorce was filed unless funds in that account were insufficient, in
which case she drew on the LOCs. She said that all the money in the joint checking account
was put there by Terry. Ms. Johns testified that since the divorce had been filed, Terry’s
monthly expenses were approximately $11,000, and Ben’s were approximately $30,000. She
said the balance on all three LOCs was about $3.5 million and that Ben had withdrawn a
total of $1,208,920 since he filed the complaint for divorce. She explained that none of the
12 withdrawals by Ben related to his monthly expenses, credit-card expenses, or home repair,
all of which she had paid. She testified that the interest paid since July 2020 on all three
LOCs was $498,570.69.
Ms. Johns provided the following explanation about her QuickBooks exhibit detailing
the parties’ expenses. She said that Terry had no involvement in the parties’ personal
financial affairs, did not know how much the parties spent, did not assist in the preparation
of taxes, and had never asked to see the QuickBooks documents. Ms. Johns said that Ben
handled all the parties’ personal finances. She said that since 2016, Ben had spent
$4,082,647.86 on treasure hunting and gold mining. She also testified that Terry did not
know anything about Ben’s Philippines treasure-hunting investment until after the divorce
had been filed. Ms. Johns testified that Ben told her that he did not want to tell Terry because
of her heart attack and that he felt like “God wanted him” to treasure hunt in the
Philippines. She said Terry discovered the payments after Ben had filed for divorce. Terry
was sitting at Ms. Johns’s desk with Ms. Johns going through QuickBooks after her attorney
requested that she review the accounting records. Terry noticed the monthly expenditures
and asked about them. Ms. Johns said that Terry was “appalled” when she explained what
the payments were for.
Finally, Steven Schroeder, a business appraiser hired by Terry, testified regarding
Celerit’s value. He said he had forty years of experience in appraising businesses and
appraised approximately twenty-five businesses each year. In his opinion, “the value of the
stock in Celerit . . . is eight million eight hundred thousand dollars ($8,800,000).” He said
13 that he had reviewed historical information back to 2015, that the profit margins had been
declining over the past four years, and that the loss of part of the BancorpSouth business
after the merger in 2021 with Cadence Bank was going to have a major impact on Celerit.
He said that that the merger may not have a significant effect on revenue, but it would have
an effect on profit because the larger banks do not need as many of the services or consultants
that Celerit provides.
Mr. Schroeder said that he used three methods to appraise Celerit: (1) the single-
period-capitalization method, which indicated a value of $6.285 million; (2) the market-
based-EBITDA-multiplier method, which indicated a value of $10.44 million; and (3) the
market-based-revenue-multiplier method, which indicated a value of $10 million. He testified
that he considered the failed Sollensys sale when evaluating Celerit,4 but he did not find it
relevant because it occurred in 2021—before the impact of the BancorpSouth merger—and
Mr. Schroeder evaluated the company as of May 2023; the Sollensys sale was never completed
and thus was not a ”sale” to establish value; Sollensys was a synergistic purchase since
Sollensys wanted to use Celerit to enhance its own operations; and finally, the Sollensys sale
included real estate, and Mr. Schroeder valued only the stock of Celerit, not real estate that
was not owned but only leased by Celerit.
Mr. Schroeder said he did not think Ben’s opinions of Celerit’s value were
“legitimate” because no one had explained the basis for Ben’s opinions. Ben said he obtained
4 Terry testified that the value of Celerit’s stock at the time of the potential Sollensys sale was $28 million.
14 “an EBITDA multiplier” from an accountant, but Mr. Schroeder explained that absent
detailed information about a company, an “off the cuff EBITDA multiplier” is as “common
as [a] bellybutton[], everybody has one.” He said that without getting data and performing an
examination, it might be admissible in court, but it was not relevant to his analysis. Finally,
Mr. Schroeder also said that he reviewed the appraisal associated with the real estate, which
indicated a value of $1.65 million for the office building and data center Celerit leased from
CRE Holdings, but he admitted that he did not independently prepare a property valuation
of the buildings.
Ben introduced the testimony of Dr. Ralph Scott, an economics professor at Hendrix
College. Dr. Scott testified that he had never been certified as a business-valuation expert in
a divorce case, that he remembered only one instance in which he had valued a closely held
corporation, that he was not a certified public accountant, that he had taken no specialized
training courses on business appraisals, and that he was not a member of any organization
accredited for the appraisal of privately owned companies. He said that most of his litigation
experience had been in personal-injury cases. He said that he is certified as an economist,
and as such, he could “handle” the valuation of businesses. He admitted that he had never
met with any Celerit management employees and that he did not prepare an independent
written report of Celerit’s value. Dr. Scott said he had a “general valuation based on the
testimony” he had heard.
Dr. Scott said that his main difference in opinion with Mr. Schroeder was Mr.
Schroeder’s failure to consider the sale of Celerit to Sollensys for $28 million in his analysis.
15 Although admittedly not consummated, Dr. Scott found the sale relevant because it was an
actual sale of Celerit, not simply the sale of a comparable company. He also believed that the
$19.675 million value placed on Celerit by the parties in their financial statement was
relevant. Finally, he testified that Mr. Schroeder relied too heavily on the first five months
of 2023 in trying to project the future. Dr. Scott preferred looking at three to five years of
performance, suggesting that the 2023 numbers could simply be a “blip on the radar.” Dr.
Scott opined that the value of Celerit should be $18.736 million. Terry objected to allowing
Dr. Scott to provide an opinion of value because he was simply a rebuttal witness to Dr.
Schroeder and did not have a formal independent written report. The court found that Dr.
Scott’s opinion of Celerit’s value was outside the scope of rebuttal, explaining that “all that
we’re looking at is whether or not we should believe Mr. Schroeder.”
The court entered an order5 on October 6, 2023, valuing and dividing the parties’
marital assets and debts and finding that Ben engaged in the wrongful dissipation of marital
assets. Terry filed a posttrial motion for reconsideration, amendment, and clarification
asking the court to clarify its order regarding certain bank accounts, retirement accounts,
and royalties. She also pointed out a “typographical error” in the court’s decision awarding
Ben a credit for the difference in value of the parties’ respective residences rather than
awarding her a credit since Ben’s property appraised for a higher amount than Terry’s.
Finally, Terry alleged that it was “unclear what mathematical formula” the court intended to
5 While titled “Order,” the circuit court later referred to this pleading as the original divorce decree.
16 utilize to apply the various credits and distributions and asked the court to “clarify how the
credits and awards are calculated in the final division of property and the terms and
conditions of any equalizing payments needed.” Ben filed a posttrial motion for amendment
of findings of fact and conclusions of law, for new trial, for judgment notwithstanding the
verdict, and for relief from judgment.
On November 20, the court entered an order granting in part and denying in part
Terry’s posttrial motion and denying Ben’s posttrial motion and also entered an amended
and substituted decree of divorce. The court incorporated its order into the amended and
substituted decree. Relevant to this appeal, the amended and substituted decree provided
that Terry “shall receive a credit for half of the marital funds” spent in furtherance of the
treasure-hunting ventures in the amount of $2,041,323.93; Terry “shall be reimbursed” for
half of the interest payments she made on the LOCs from the time the divorce was filed;
Terry “shall receive a credit” for the early division of property in the amount of $154,996.32
that Ben received; and Terry “shall be entitled to credit in the amount of $13,907.50 for the
check Ben wrote from the parties’ joint checking account to his attorney. The court valued
Celerit at $10 million and the office building and data center used by Celerit at $1.65
million. It awarded both buildings to Terry, who was to pay Ben for his 50 percent interest
in both. Finally, the court awarded Terry the Little Rock home and Ben the Heber Springs
home, finding that the Little Rock home appraised for $1.34 million, and the Heber Springs
home appraised for $2.4 million. The court found that Terry should receive credit in the
amount of the difference in value: $1.06 million. Ben’s appeal followed.
17 II. Standard of Review
We review domestic-relations cases de novo on appeal and will not reverse a circuit
court’s findings unless they are clearly erroneous. Keathley v. Keathley, 76 Ark. App. 150, 61
S.W.3d 219 (2001). In reviewing a circuit court’s findings, we defer to the court’s superior
position to determine the credibility of witnesses and the weight to be accorded to their
testimony. Id. at 157, 61 S.W.3d at 224. Moreover, we will not substitute our judgment on
appeal as to the exact interest each party should have but will decide only whether the order
is clearly wrong. Jones v. Jones, 2014 Ark. 96, at 7, 432 S.W.3d 36, 41 (citing Pinkston v.
Pinkston, 278 Ark. 233, 644 S.W.2d 930 (1983)).
III. Discussion
A. Reimbursements
For his first point on appeal, Ben challenges the circuit court’s findings in the
amended and substituted decree (1) that he repay half the interest due on the parties’ LOCs
while the divorce was pending, (2) that Terry receive a credit for half of every dollar he spent
gold mining and treasure hunting, (3) that Terry receive a credit for the $154,996.32 awarded
to Ben while the divorce was pending, and (4) that Ben reimburse Terry for $13,907 in
attorney’s fees that he paid while the divorce was pending.
1. Gold-mining and treasure-hunting expenses and LOC interest
Because Ben’s first two reimbursement arguments are related and were decided by
the circuit court under the heading “Unequal Property Division” in the amended and
18 substituted decree of divorce, we will address them together. After an explanation of the
factors a court must consider when awarding an unequal distribution of property, an
extensive rendition of the facts surrounding Ben’s investment in the gold-mining and
treasure-hunting ventures, its finding that Ben lacked credibility when discussing the parties’
finances and his treasure-hunting ventures, its determination that Ben’s spending was
“reckless” and constituted a “wrongful dissipation of marital assets,” and its finding that
Terry was entitled to an unequal division of property, the circuit court awarded a
$2,041,323.93 credit to Terry for half of the marital funds that Ben spent on these
investments, which was $4,082,647.86. The court also found that Ben had used the parties’
LOCs to continue paying for these investments after the divorce was filed and the temporary
order entered, which led to excessive principal balances and, consequently, to excessive
amounts of interest accumulation. Accordingly, the court also ordered Ben to reimburse
Terry $249,285.35 for half of the interest she had paid servicing the three LOCs while the
divorce was pending, which totaled $498,570.69.
On appeal, Ben recognizes that a court has broad powers to distribute property and
may make an unequal distribution of property, but he argues that the $2,041,323.93 credit
to Terry was not an unequal distribution of marital property but rather a reimbursement of
funds spent during the marriage. Similarly, he argues that the LOC interest payments are
not debt for the court to divide because the amounts have been paid with marital funds. He
claims that income earned and spent during the marriage is not subject to reimbursement
19 or division unless the money was spent on a paramour or with the fraudulent intent of
divesting the other spouse of the funds.
In support of his argument that the issues do not involve the unequal distribution of
property but rather the direct reimbursement of funds spent during the marriage, Ben relies
on Johnson v. Cotton-Johnson, 88 Ark. App. 67, 194 S.W.3d 806 (2004), and Chism v. Chism,
2018 Ark. App. 310, 551 S.W.3d 394. These cases do not support Ben’s argument.
In Johnson, we affirmed in part and modified a circuit court’s order requiring Arthur
to reimburse Renita for one-half of the total amount in gifts he had purchased for two
paramours during the parties’ marriage. Although we recognized in Johnson that a court may
divide property unequally when one spouse has diverted marital assets to a paramour, we
reduced the amount that the court awarded Renita for gifts that Arthur gave to one of the
paramours because Arthur and Renita had reconciled after the gifts were made. Id. at 83,
194 S.W.3d at 815. We stated that reconciliation after the gifts was “tantamount to a
forgiveness of the manner in which marital funds were spent” and that Renita should be
precluded from seeking reimbursement of those funds to the marital estate. Id., 194 S.W.3d
at 815. However, we affirmed the award to Renita of one-half the value of the gifts made to
the other paramour where there was no evidence that the parties reconciled after Renita
knew of the gifts. Id., 194 S.W.3d at 815.
This court made clear in Johnson that the circuit court could distribute property
unequally on the basis of misspent marital funds and affirmed in part the court’s order doing
so. Here, there is no evidence that Terry “forgave” Ben’s wasteful spending. In fact, the
20 evidence suggested that Terry had no idea about the spending and did all she could to
prevent Ben’s continued spending on the ventures once she discovered it.
In Chism, the circuit court divided the parties’ marital and nonmarital property and
then found that Evelyn’s earnings and retirement benefits that had been paid between 2002
and 2013 (the year before the divorce was filed) had been kept in a separate account in her
separate name and that Evelyn had failed to account for the money. The court awarded a
judgment to Jim for $118,000, representing one-half of the sum earned. Evelyn argued on
appeal that a spouse is not entitled to be reimbursed in a divorce proceeding for every
nonconsensual transfer of marital funds made by the other spouse in the absence of an intent
to defraud; that there was insufficient evidence that she had spent the funds with the intent
to defraud Jim; and that only $20,000 remained in the account when the parties separated,
which the court had already divided. 2018 Ark. App. 310, at 5, 551 S.W.3d at 397–98. We
reversed the judgment, holding there was no evidence presented, and Jim did not argue, that
Evelyn concealed or disposed of her property in an attempt to defraud him and that the
court’s equal division of the account was based on the balance at the time of separation. Id.
at 6, 551 S.W.3d at 398.
Chism is inapposite to the instant case. Unlike in Chism, the court here did not award
Terry a judgment based on unaccounted-for funds. Rather, the court specifically made an
unequal distribution of property and properly stated its reasons for doing so. Moreover, the
court here specifically found that Ben’s treasure hunting was a wrongful dissipation of the
marital assets and amounted to fraud against Terry.
21 Arkansas Code Annotated section 9-12-315 (Repl. 2020) grants the circuit court
broad powers in distributing both marital and nonmarital property to achieve an equitable
division. Keathley, 76 Ark. App. at 157, 61 S.W.3d at 224. The overriding purpose of the
property-division statute is to enable the court to make a division of property that is fair and
equitable under the circumstances. Id., 61 S.W.3d at 224. All marital property shall be
distributed one-half to each party unless the court finds such a division to be inequitable.
Ark. Code Ann. § 9-12-315(a)(1)(A). The court may make an unequal division of marital
property if it finds some other division equitable taking into consideration certain factors
listed in the statute, but the circuit court must state the reasons and basis for not dividing
the property equally, which should be recited in the order entered in the matter. Ark. Code
Ann. § 9-12-315(a)(1)(A), (B). The court is not required to list each factor, weigh each factor
equally, or limit itself to the factors listed. Kelly v. Kelly, 2014 Ark. 543, at 8, 453 S.W.3d
665, 661.
In the case at bar, the circuit court made an unequal distribution of marital property
when it awarded Terry a credit for half of Ben’s investment expenses and reimbursement for
half of the LOC interest she paid on those expenses. The court issued these awards in its
decree under the heading “Unequal Property Division,” and the court set forth the factors
it was required to consider pursuant to section 9-12-315(a)(1)(B) when making this unequal
division of marital property. Focusing on the factor regarding each party’s contribution to
the “acquisition, preservation, or appreciation” of marital property, the court found that Ben
abused Terry’s trust in him to spend their funds in a “covert, wasteful fashion” while Terry
22 worked hard to accumulate marital assets. It credited Terry’s and Ms. Johns’s testimony that
Terry was not aware of Ben’s investment in the Philippines treasure-hunting venture until
after the divorce was filed. The court was “not persuaded” by Ben’s testimony that Terry
should have known about the venture from the parties’ tax returns, and it found that Ben’s
“reckless spending went unchecked for years because he hid it from Terry.” The court likened
Ben’s behavior to one who goes to a casino month after month for seven years, spending
tens of thousands of dollars gambling, but having nothing to show for it. The court
specifically found that Ben’s actions amounted to “fraud against Terry.” Consequently, it
awarded 100 percent of the assets and debts of the parties’ gold-mining and treasure-hunting
ventures to Ben and found that Terry “shall receive a credit for half of the marital funds”
Ben spent on these ventures. The court also found that Ben continued to invest in these
ventures after the divorce was filed and after Terry quit funding the expense, maxing out the
parties’ LOCs. The court found that Ben’s use of the LOCs led to the excessive balances and
interest accumulation, found that both parties should bear the expense equally, and ordered
Ben to reimburse Terry for half of these interest payments.6
6 We note that the court did not order Ben to reimburse Terry for all interest paid on the parties’ LOCs during the marriage but only for the interest it found attributable to Ben’s excessive and wasteful spending during the parties’ separation and pending divorce. In spite of the temporary order’s provision barring either party from borrowing more than $250,000 from their designated LOC without written approval from the other party, Ben was responsible for maxing out all three LOCs. The court found this violated the temporary order, took this violation into account in its decision to order credits and reimbursements, and found that compliance with its order would purge the contemptuous behavior.
23 The circuit court compared Ben’s actions to the husband’s depletion of the marital
estate in Keathley. In Keathley, this court affirmed an unequal division of property to the wife
after the circuit court found that the husband depleted the marital estate through gambling
losses while the wife was working to accumulate assets. 76 Ark. App. at 155, 61 S.W.3d at
223. The husband in Keathley, like Ben in this case, handled the parties’ finances while the
wife worked to earn income. The circuit court found that the wife did not know about the
husband’s continuing gambling losses, had no reason to suspect that he was accumulating
credit-card debt in her name, and found that his actions rose to the level of fraud against the
wife. Id. at 155, 61 S.W.3d at 223.
Similarly, in Thakar v. Thakar, 2022 Ark. App. 284, 646 S.W.3d 666, this court
affirmed the circuit court’s unequal division of property in favor of the wife where evidence
established that the husband handled the parties financial affairs during the marriage and
transferred considerable assets from the parties’ joint accounts to accounts in India and to
his family members without the wife’s knowledge or consent. The husband argued that he
no longer had all the funds and that the circuit court made no finding that he had committed
fraud, as he contended the supreme court required. We affirmed the court’s order, stating
that fraud included a “scheme of deceit,” which the circuit court found existed. Id. at 7, 646
S.W.3d at 670–71. See also Skokos v. Skokos, 332 Ark. 520, 535, 969 S.W.2d 26, 34 (1998)
(holding that to entitle a spouse to reimbursement of funds spent during the marriage, he or
she must demonstrate a nonconsensual transfer of marital funds was made with the “specific
intent” to defraud the other spouse of his or her interest in the property).
24 We do not have a definite and firm conviction that a mistake was made as to the
circuit court’s findings that Terry is entitled to a credit for one-half of the marital funds spent
on the gold-mining and treasure-hunting ventures and that Ben reimburse Terry one-half of
the LOC interest she paid on those expenses during the divorce. As we have previously
explained, we will not substitute our judgment on appeal as to the exact interest each party
should have but will decide only whether the order is clearly wrong. See Pinkston, 278 Ark. at
235, 644 S.W.2d at 931. Any exception to the rule of equal distribution will always depend
on the specific facts as reflected by the circuit court’s findings and conclusions. Kelly, 2014
Ark. 543, at 10, 453 S.W.3d at 662. Our review of the extensive record in this case does not
convince us that the court’s order is clearly erroneous, and we affirm this point.
2. $154,996.32 and $13,907
Ben argues that the circuit court clearly erred by ordering him to reimburse Terry for
the $154,996.32 that the court awarded him after the May 2023 hearing and by ordering
him to reimburse Terry for the $13,907 he paid his attorney from the parties’ joint account
two months later. Ben contends that there was no evidence that he still possessed the money
at the time of the final hearing and that it was money spent during the marriage from the
marital estate. Therefore, as he previously argued, he contends that a court may not order a
party to account for money spent during the marriage absent evidence of fraud. He also
contends that Terry paid her attorney from the parties’ joint account and that nothing
prevented him from doing the same thing.
25 Regarding the $154,996.32 award to Terry, the court’s May 2023 order specifically
provides that the money “shall be accounted for and credited to” Terry in the final division
of property. Ben did not object to the court’s order. Moreover, in Ben’s proposed findings
of fact and conclusions of law filed immediately after the final hearing, Ben deducted this
amount from his share of the marital estate. An appellant may not complain of an erroneous
action of a circuit court on appeal if it has induced or acquiesced in that action.
Barrows/Thompson, LLC v. HB Ven II, LP, 2020 Ark. App. 208, at 13–14, 599 S.W.3d 637,
646. Accordingly, he has failed to preserve this point for appeal.
With regard to the $13,907 reimbursement, the circuit court found that Ben
“unapologetically admitted at trial that he wrote a check out of the parties’ joint bank
account” for this amount to pay his attorney “rather than utilizing the $154,996.32 awarded
to him in May for that exact purpose.”7 The circuit court’s initial order included a credit to
Terry for $13,907, and Ben failed to challenge this finding in his posttrial motion. Therefore,
his argument is not preserved for appeal. Although a party is not required to file a posttrial
motion to preserve error, a party who files such a motion and fails to include an argument
that could be addressed by the circuit court has not raised the issue at the earliest opportunity
and therefore has waived the issue. See Dace v. Doss, 2017 Ark. App. 531, at 8, 530 S.W.3d
7 We note that it was undisputed that Ben contributed nothing to the joint checking account, that all his expenses were being paid from marital funds by Ms. Johns, and that he did not place any of the marital funds he received—checks for oil and gas royalties, rent, and the $154,996.32—into the joint account but kept these amounts in cash in his safe.
26 893, 898–99 (holding that the appellant waived his appellate argument because he failed to
raise it in his posttrial motion).
B. Value of Celerit
Ben also challenges the circuit court’s valuation of Celerit. He argues that the court’s
finding that Celerit was worth $10 million was clearly erroneous. First, he claims that the
circuit court ignored relevant evidence of value in favor of Mr. Schroeder’s valuation.
Specifically, Ben argues that Mr. Schroeder gave the Sollensys sale no weight. Second, Ben
argues that Mr. Schroeder’s valuation included only the stock, and therefore, that the circuit
court clearly erred by including the business accounts in the $10 million valuation
collectively with the stock, although he does not specify which accounts.
The only expert witness who appraised Celerit was Terry’s expert, Mr. Schroeder. Mr.
Schroeder testified that he had forty years of experience in appraising businesses and had
appraised approximately twenty-five businesses each year. He provided a forty-seven-page
appraisal with a detailed financial analysis of Celerit’s balance sheets and income statements
and set forth the three methods he used to arrive at his opinion of the company’s value. He
testified that he considered the failed Sollensys sale when evaluating Celerit and explained
why he did not find it relevant to his analysis. Ben then presented the testimony of Dr. Scott
to rebut Mr. Schroeder’s opinion, but neither Ben nor Dr. Scott provided a separate
appraisal or evidence of an alternative value for Celerit.
The court considered this evidence, set forth two pages of detailed findings, and
valued Celerit at $10 million. Mr. Shroeder’s appraisal (on which the court relied) was based
27 on the company’s financial statements, which included the company’s bank accounts. The
circuit court specifically mentioned Sollensys, Terry’s testimony regarding the failed
Sollensys transaction, and Mr. Schroeder’s models that included comparable sales. In fact,
while the court recognized that Mr. Schroeder used three methods to arrive at his valuation
of $8.8 million, the court specifically found that the two methods using comparable sales
were the most reasonable valuations, leading the court to its $10 million value. The court
also recognized that Dr. Scott did not offer an independent appraisal of the company. And
although Ben testified that Celerit was worth anywhere between $10 million and $30
million, he did not present an accountant or other expert to confirm his opinion, and the
circuit court specifically found that Ben’s testimony discussing the parties’ finances lacked
credibility.
Ben’s argument is nothing more than a request that we reweigh the evidence and
evaluate it differently than did the circuit court, which we will not do. See Williams v. Williams,
2019 Ark. App. 186, at 19, 575 S.W.3d 156, 166. The circuit court was required, as the trier
of fact, to determine the credibility of witnesses and to resolve conflicting testimony. Thakar,
2022 Ark. App. 284, at 4, 646 S.W.3d at 670. On appeal, we will not disturb a circuit court’s
resolution of disputed facts or determinations of credibility because these are within the
province of the finder of fact. Id. at 7, 646 S.W.3d at 671. This court will reverse the circuit
court’s valuation of a business only if it is clearly erroneous. Fowler v. Fowler, 2023 Ark. App.
543, at 4, 680 S.W.3d 68, 71.
28 Ben has not demonstrated that the circuit court clearly erred on this point. He failed
to offer his own appraisal or provide any expert evidence to support his opinion. Terry
presented expert testimony, supported by a forty-seven-page appraisal, which was deemed
credible by the circuit court. In short, Ben’s arguments on appeal attempt to parse out various
components of Terry’s expert’s opinion, but this was a matter for the circuit court to consider
and resolve. Our de novo review of the evidence convinces us that the circuit court did not
clearly err in its valuation of Celerit, and we affirm this point.
C. Value of the Office Building and the Data Center
The circuit court valued the office building and data center at $1.65 million and
ordered Ben to receive a credit for $825,000. Ben contends that the circuit court clearly erred
in its valuation of the buildings because it failed to consider all the relevant evidence. Ben
also contends that the court based its determination of value on an appraisal that was not
entered into evidence.8
In its decree, the circuit court found that the buildings were vital to the continuing
operation of Celerit and awarded them to Terry. Neither Ben nor Terry entered an appraisal
of the buildings into evidence, and the court based its determination of value on Terry’s and
Mr. Schroeder’s testimony. Both testified that an appraisal had been performed in
connection with the potential sale of Celerit to Sollensys in 2021, which valued the
8 Ben also argues that the circuit court should have ordered the office building and data center sold as required by Arkansas Code Annotated section 9-12-315(a)(3)(B). However, Ben did not include this argument in his posttrial motion. Thus, he has waived this argument on appeal. See Dace, 2017 Ark. App. 531, at 8, 530 S.W.3d at 898–99.
29 properties at $1.65 million. The court stated that no other credible evidence regarding the
properties was presented, specifically noting Ben’s lack of credibility.
The opinion of the owner of real estate is generally admissible on the question of its
value, regardless of the owner’s knowledge of market values. Enter. Sales Co. v. Barham, 270
Ark. 544, 547–48, 605 S.W.2d 458, 459 (1980). That testimony must, however, be based on
facts that support his opinion. Ark. State Highway Comm’n v. Geeslin, 247 Ark. 537, 541, 446
S.W.2d 245, 247 (1969). Value cannot be based on a figure plucked from the air. Ark. State
Highway Comm’n v. Stanley, 234 Ark. 428, 353 S.W.2d 173 (1962). Here, Terry, an owner of
the property, testified that her opinion was based on an appraisal of the property. This figure
was not “plucked from the air” and is the only value presented regarding the buildings. We
hold that the circuit court’s valuation of the real estate was not clearly erroneous and affirm
this point.
D. Home Values
Ben contends that the circuit court clearly erred by unequally dividing the parties’
homes without offering an explanation for the unequal division. The court awarded Terry
the Little Rock home and Ben the Heber Springs home, finding that the Little Rock home
appraised for $1.34 million, and the Heber Springs home appraised for $2.4 million. The
court then found that Terry should receive credit in the amount of $1.06 million—the
difference in value between the two homes. Ben argues that the court gave no justification
for its unequal division and should have awarded Terry half of the difference between the
homes—$530,000—so that each party would have $1.87 million in home value.
30 It is unclear in the circuit court’s decree whether it intended to equally or unequally
divide the value of the parties’ homes. If the court intended to equally divide it, it failed to
do so. Under the circuit court’s analysis, Ben’s home value is now $2.4 million, and Terry’s
home value is $1.34 million. If the court intended to unequally divide the value of the
homes, it failed to provide any explanation for an unequal division. Therefore, we agree with
Ben that the circuit court clearly erred in dividing the value of the parties’ homes.
We do not hold that the circuit court must divide the value of the homes equally or
unequally, but if it does divide it unequally, it is required to explain why an unequal division
is equitable and state its basis and reasons in the order. Ark. Code Ann. § 9-12-315(a)(1)(B).
Accordingly, we reverse and remand the issue of division of the value of the parties’ homes
for the circuit court to either divide the marital property one-half to each party or to make
some other division that it deems equitable and provide written findings that support the
unequal division. See Branscum v. Branscum, 2022 Ark. App. 126, at 5–6, 642 S.W.3d 270,
274.
Affirmed in part; reversed and remanded in part.
KLAPPENBACH, C.J., and VIRDEN, J., agree.
Taylor & Taylor Law Firm, P.A., by: Tory H. Lewis, Andrew M. Taylor, and Tasha C.
Taylor, for appellant.
Kamps & Griffis PLLC, by: Adrienne M. Griffis, for appellee.