Georgianna Booker v. Patrick Booker

2022 Ark. App. 473, 655 S.W.3d 562

• Court: Court of Appeals of Arkansas
• Decided: November 16, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 473 ARKANSAS COURT OF APPEALS DIVISION II No. CV-21-484

GEORGIANNA BOOKER Opinion Delivered November 16, 2022 APPELLANT/CROSS-APPELLEE

V. APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT PATRICK BOOKER [NO. 26DR-19-35 ] APPELLEE/CROSS-APPELLANT HONORABLE LYNN WILLIAMS, JUDGE

AFFIRMED

MIKE MURPHY, Judge

Georgianna Booker appeals the Garland County Circuit Court’s order in her divorce

from Patrick Booker. Patrick cross-appeals. On appeal, Georgianna argues that the court

erred in granting Patrick an unequal division of certain marital property and debts.

Alternatively, she argues the court erred in denying her credit for one-half of Patrick’s

military retirement benefits from 2003 through 2015. Overall, she contends the court’s

decision was ambiguous and the case warrants remanding so that the circuit court can make

a valuation of the property division. On cross-appeal, Patrick agrees that this case should be

remanded to clarify the value of the marital home to support its unequal division and the

value of the retirement accounts, taking into consideration the twelve-year setoff. We previously dismissed the appeal and the cross-appeal without prejudice for lack of a final

order. The appeal is now properly before us. We affirm.

Georgianna and Patrick were married on April 19, 1980, and divorced by decree of

the Garland County Circuit Court on May 6, 2020. There were no minor children at the

time of the divorce, and the issues below and on appeal center on the division of marital

property and debts. At trial, there was testimony that the parties separated in 2003, and

Georgianna moved to Texas. The testimony differed on when the parties got back together,

but Patrick testified that Georgianna “showed up” again in 2015. Patrick testified that, from

2003 until around 2015, Georgianna did not contribute to the marriage in any way. She had

left and he had paid all the bills.

Following the hearing, the court found that Patrick was entitled to an unequal

division of the marital assets because he was the sole contributor to the acquisition,

preservation, and appreciation of the marital home and retirement accounts (excluding his

military retirement). It found that Georgianna was “not contributing to the marriage from

2003 through 2015” and was thus not entitled to the contribution to the marital assets for

that time. In pertinent part, the order further provided that the following:

IV.

The Court finds that [Georgianna] was not contributing to the marriage from 2003 through 2015 and should not be entitled to the contribution to the marital assets for that time period.

.... VI.

2 The Court finds that [Georgianna] is solely reliable for Upgrade, Inc., Lowe’s, Discover Card, Commerce Bank, and Navy Federal Credit Union debts that are solely in her name are not marital property.

VII.

The real property and all marital personal property shall be auctioned within a reasonable time on the courthouse steps or on the premises of the residence if agreed upon by the parties. [Patrick] shall get a credit set off for the unequal distribution after the sale of the property. The setoff should reflect what [Patrick] paid on the marital home from 2003 through 2015. The remaining proceeds shall go towards the marital debts and then be split equally between the parties. All personal property not specifically mentioned in this Decree shall be sold in the same respective manner on or about the same day.

.... IX.

[Georgianna] is entitled to one-half (½) of [Patrick]’s military retirement.

X.

The Court finds that there shall be an unequal division of [Patrick]’s other retirement accounts in favor of [him]. Any division of these retirement accounts shall exclude the years of 2003 through 2015.

From this order, the parties appeal.

This court reviews domestic-relations cases de novo, but we will not reverse the trial

court’s findings unless they are clearly erroneous. Reesnes v. Reesnes, 2022 Ark. App. 462. A

finding is clearly erroneous when, although there is evidence to support it, the reviewing

court on the entire evidence is left with a definite and firm conviction that a mistake has

been made. Id. Due deference is given to the circuit court’s superior position to determine

the credibility of witnesses and the weight to be given their testimony. Id. As to issues of law,

3 however, we give no deference to the circuit court; rather, we review issues of law and

statutory construction de novo. Id.

With respect to the division of property, we review the circuit court’s findings of fact

and affirm them unless they are clearly erroneous or against the preponderance of the

evidence; the division of property itself is also reviewed, and the same standard applies. Doss

v. Doss, 2018 Ark. App. 487, 561 S.W.3d 348. In accordance with Arkansas Code Annotated

section 9-12-315(a)(1) (Repl. 2020), at the time of entry of a divorce decree, the circuit court

shall equally distribute all marital property one-half to each party unless it is determined that

such a distribution would be inequitable; if the property is not divided equally, then the

circuit court must state the reasons and basis for not doing so, and the basis and reasons

should be recited in the order entered in the matter. While the circuit court must consider

the factors set forth in the statute and state its reasons for dividing property unequally, it is

not required to list each factor in its order or to weigh all the factors equally. Id.

For her first point, Georgianna contends that the unequal division was clearly

erroneous and that the court did not sufficiently state the reasons for the unequal division.

The court found that Patrick was entitled to an unequal division of assets under Arkansas

Code Annotated section 9-12-315(A)(1)(a)(viii), which states that the contribution of each

party in acquisition, preservation, or appreciation of marital property, including services as

a homemaker, is a factor the court may take into consideration when making a division of

property on some other basis than an equal distribution. The court found that Georgianna

did not contribute to the marriage from 2003 through 2015. She was living in Texas during

4 this time, having essentially abandoned the marriage and marital assets. It was not clearly

erroneous for the court to find that because Georgianna did not contribute to the marital

assets during this time, she should not get the benefit of those assets at the time of divorce.

Georgianna cites West v. West, 103 Ark. App. 269, 288 S.W.3d 680 (2008), to support

her argument that the decree was defective because it lacked explanation why an equal

division of the marital property was inequitable. In West, a default judgment stated that “an

even division of the property would be inequitable” because Charles was “the one who has

contributed to both the checking account and to the house, which made it possible for the

parties to have them.” West, 103 Ark. App. at 275, 288 S.W.3d at 685. This court ruled that

“simply reciting the source of the funds cannot equate to a proper consideration of the

contribution of each party in the acquisition, preservation, or appreciation of marital

property. . . . The trial court’s mere recitation of Charles’s contribution was an inadequate

explanation for the unequal distribution of marital property.” Id.

Here, the court does more than recite Patrick’s contribution. It cites the statute to

support its decision, provides specific dates, and finds that Patrick was the sole contributor

during that time. Under these facts, the court’s finding of unequal division was not clearly

erroneous.

Next, Georgianna argues that the court erred when it did not give her any credit for

the debt she incurred making improvements to the house. The court found her solely liable

for the debts in her name, but Georgianna argues that she should be credited for the new

windows and kitchen remodel on the marital home. This court has held that Arkansas Code

5 Annotated section 9-12-315 and its presumption of equal division does not apply to the

division of marital debts. Doss, 2018 Ark. App. 487, 561 S.W.3d 348. Here, given that the

debt was incurred due to expenses associated with the marital home, and upon the home’s

sale, she will receive half of the proceeds less what Patrick paid toward the mortgage while

she was not contributing to the marriage, it was not clearly erroneous for the court to allocate

the debt the way it did.

In the alternative, Georgianna asserts that if we do not reverse the inequitable asset

division, she should get credit for half of the military retirement benefits she did not receive

from 2003 through 2015. We disagree. Arkansas law does not require parties to a divorce to

account for every sum spent during a marriage. Chism v. Chism, 2018 Ark. App. 310, at 6,

551 S.W.3d 394, 398. The income was marital; thus, Patrick had the right to use and transfer

that money, as long as he was doing so nonfraudulently. See Skokos v. Skokos, 332 Ark. 520,

968 S.W.2d 26 (1998). Georgianna is not entitled to reimbursement or credit for the money

Patrick received absent proof of an intent to defraud, which Georgianna does not allege.

Thus, it was not erroneous for the court to not credit her those funds.

Last, both Georgianna and Patrick ask us to remand the case for the circuit court to

provide a value on the unequal division, but for different reasons. Georgianna would have

us remand the entire case because there are no values stated, which she contends makes it

difficult to determine just how unequal the division may really be. Patrick asks us to affirm

the unequal division but remand for the circuit court to provide a clearer value of the

property division.

6 Neither party sought to have the court address the valuation issues until now. To

preserve an issue for appeal, a party must object at the first opportunity and obtain a ruling

from the circuit court. Stell v. Stell, 2021 Ark. App. 478, 638 S.W.3d 855. We will not review

a matter on which the circuit court has not ruled, and the burden of obtaining a ruling is on

the movant; matters left unresolved are waived and may not be raised on appeal. Id. Neither

Georgianna nor Patrick preserved this issue for appeal. In the event additional clarification

is critical to carrying out the court’s orders, neither party is foreclosed from seeking it

pursuant to the circuit court’s continuing jurisdiction. See Stuart v. Stuart, 2012 Ark. App.

458, at 11, 422 S.W.3d 147, 154 (“The trial court ‘retains the power to clarify or interpret a

prior decree for more than ninety days in order to more accurately reflect the court’s original

intention.’”(quoting Linn v. Miller, 99 Ark. App. 407, 413, 261 S.W.3d 471,475 (2007))).

We affirm the circuit court’s division of property.

Affirmed.

ABRAMSON and GLADWIN, JJ., agree.

Tapp Law Firm, P.A., by: Tylar C.M. Tapp III, for appellant/cross-appellee.

The Ballard Firm, P.A., by: Adrew D. Ballard, for appellee/cross-appellant.