Jackson v. Jackson

765 S.W.2d 561, 298 Ark. 60, 1989 Ark. LEXIS 82
CourtSupreme Court of Arkansas
DecidedFebruary 20, 1989
Docket88-187
StatusPublished
Cited by15 cases

This text of 765 S.W.2d 561 (Jackson v. Jackson) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. Jackson, 765 S.W.2d 561, 298 Ark. 60, 1989 Ark. LEXIS 82 (Ark. 1989).

Opinions

Tom Glaze, Justice.

This appeal ensues from a divorce case and involves marital property issues that arise out of appellee’s inheritance of certain stock and the later purchase of her sister’s one-half interest in real-property that she and her sister inherited from their mother. Both of these events, the inheritance and purchase of property, occurred when appellee was married to the appellant. The chancellor held appellant acquired no marital interest in either the stock or real property, and in an unpublished opinion, the court of appeals affirmed. This court granted review pursuant to Ark. Sup. Ct. R. 29(l)(c).

We first consider the house and real property that the appellee and her sister inherited from their mother. The sisters each owned an undivided one-half interest in the property. By agreement with her sister, appellee and her husband, appellant, moved into the house, which is located in the Pleasant Valley Subdivision in Little Rock. Appellee and appellant made improvements on the property with monies appellee testified were her separate funds, which were monies from nonmarital stock inherited from her mother.

At this time, the parties were experiencing marital unrest. For that reason, appellee stated that when her sister offered to sell her one-half interest, appellee bought her sister’s interest by taking title in her name alone and paying her sister $67,850.31, which were funds appellee withdrew from her separate stockbroker account. That account contained the stock that appellee had inherited from her mother. In purchasing her sister’s interest, appellee concedes that she first deposited the funds drawn from her stock account into a joint checking account, bearing both appellant’s and appellee’s names. After depositing these funds, she wrote a check payable to her sister for $67,850.31, which was the full amount of the purchase. Appellant argues that, when appellee placed her nonmarital funds into the parties’ joint checking account, appellant acquired a one-half interest in those funds, as well as the sister’s one-half interest, which was purchased by with those funds.

In McEntire v. McEntire, 267 Ark. 169, 590 S.W.2d 241 (1979), the court recited the established rule that the estate by the entireties may be created in personal property. It stated, noting Ark. Stat. Ann. § 67-552 (Supp. 1965) (now Ark. Code Ann. § 23-32-1005 (1987)), that a bank account held in the names of persons who designate themselves as husband and wife is the property of such persons as tenants by the entireties and upon the death of one of the persons, the account is payable to the survivor. The court further noted that an estate by the entireties in a bank account differs in one significant aspect from an estate in real property in that the estate exists in the account only until one of the tenants withdraws such funds or dies leaving a balance in the account and that the funds withdrawn or otherwise diverted from the account by one of the tenants and reduced to that tenant’s separate possession ceases to be a part of the estate by the entireties . See also Black v. Black, 199 Ark. 609, 135 S.W.2d 837 (1940); Hayse v. Hayse, 4 Ark. App. 160-B, 630 S.W.2d 48 (1982).1

In Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975), this court further discussed tenancy by the entirety and held that the acquisition of property, whether realty or personalty, by persons who are husband and wife by an instrument running to them conjunctively, without specification of the manner in which they take, usually results in a tenancy by the entirety. The court added that there is at least a presumption that the taking in such circumstances is by the entirety. The court added that the fact that the consideration given by the property taken in the two names belong to one spouse only is of little, if any, significance where he or she is responsible for the property being taken in both names as the presumption is that there was a gift of an interest by the husband to the wife, even though the wife may have no knowledge of the transaction. Importantly, the Ramsey court held that the presumption is strong, and it can be overcome only by clear, positive, unequivocal, unmistakable, strong, and convincing evidence, partially because the alternate is a resulting trust the establishment of which, under circumstances, requires that degree of proof.

In the present case, the chancellor concluded, correctly we believe, that appellee should be entitled to her inherited or nonmarital funds, unless she did something to destroy the non-marital status of those funds. Clearly, appellee had the right to withdraw the funds she deposited in the parties’ joint account and, as pointed out in McEntire, the mere depositing of those nonmarital funds into the parties’ bank account did not render them forever funds owned by the entirety. The chancellor found that appellee merely “poured” her nonmarital funds in and out of the parties’ checking account, so she would have a receipt and record of the real estate transaction with her sister — a record appellee deemed necessary for the Internal Revenue Service. Also, significantly, the trial judge found appellee took title to the house in her name only, and he obviously believed her testimony that she intended to keep her funds and property separately since the parties were experiencing marital discord. The appellee testified she rejected appellant’s suggestion that they obtain a loan to purchase the sister’s interest because, to do so, would necessitate placing the property in both her name and the appellant’s. The chancellor further found the appellant exercised no dominion and control over appellee’s funds, and he was convinced that appellee never intended to make a gift of those nonmarital funds and property to appellant.2 We believe the record readily supports the chancellor’s findings in these respects. Our inquiry, however, does not end at this point.

We next must decide whether the one-half interest the appellee purchased from her sister is marital property subject to division under Ark. Code Ann. § 9-12-315 (Supp. 1987). Under § 9-12-315(b), all property acquired by either spouse subsequent to the marriage is marital property, unless it falls within one of five statutory exceptions. See Wagoner v. Wagoner, 294 Ark. 82, 740 S.W.2d 915 (1987); Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984). Of course, the appellee, during her marriage to appellant, acquired the property from her sister but did so, as we concluded above, by using her inherited or nonmarital funds. Based upon the record before us, appellee’s acquisition would appear to be included — if at all — within the exception set out in § 9-12-315(b)(2) which provides as follows:

Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent.

Although our court has not directly construed or interpreted the foregoing exception, other jurisdictions, with identical provisions, have.

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Jackson v. Jackson
765 S.W.2d 561 (Supreme Court of Arkansas, 1989)

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Bluebook (online)
765 S.W.2d 561, 298 Ark. 60, 1989 Ark. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-jackson-ark-1989.