Johnson v. Johnson

378 S.W.3d 889, 2011 Ark. App. 276, 2011 Ark. App. LEXIS 288
CourtCourt of Appeals of Arkansas
DecidedApril 13, 2011
DocketNo. CA 10-842
StatusPublished
Cited by6 cases

This text of 378 S.W.3d 889 (Johnson v. Johnson) 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
Johnson v. Johnson, 378 S.W.3d 889, 2011 Ark. App. 276, 2011 Ark. App. LEXIS 288 (Ark. Ct. App. 2011).

Opinion

DAVID M. GLOVER, Judge.

|T The distribution of the parties’ property is at issue in this divorce case. Appellant James Johnson challenges the trial court’s award to appellee Norma Johnson of interests in the value of improvements to appellant’s nonmarital real property, some rental income, the proceeds of the sale of a business, an IRA, a 401(k) plan, and certain funds removed from a joint account. We find no error and affirm.

The parties, who married in November 1997, were both sixty-nine years old at the time of trial. For many years before the marriage, appellant was a general contractor and owned an air-conditioning business. He purchased a lot in Marion for $20,000 in 1995 and applied for a permit to construct a house there in September 1997. The parties disagreed at trial about whether they had moved into the new house in 1998 or 1999. They jointly | purchased some real property on Highway 77 in West Memphis, where they operated an equipment-rental business. Appellant sold the inventory and equipment from the rental business in April 2008 without sharing the profits with appellee. He then rented that building, keeping the rental payments for himself. After a few years of discord, the parties separated in August 2008.

Appellee sued appellant for divorce on September 9, 2008. Appellant consented to the divorce but contested the disposition of their property rights. On November 4, 2008, appellant filed a motion for a temporary restraining order to prohibit appellee from disposing of her 401(k) retirement plan. On February 17, 2009, the court issued an order awarding temporary possession of the home to appellee and granting possession of various items of personal property, including the vehicles, to each party. The court enjoined both parties from harassing each other and from disposing of any of their property until further orders. On July 13, 2009, appellee filed a petition asking the court to hold appellant in contempt for harassing her. After a hearing, the circuit court found appellant in contempt; directed him to remove all nails, screws, and wires that he had applied to the doors in their garage and shop and to return them to their original condition; and ordered him to refrain from bothering appellee.

At the divorce hearing on December 3 and 4, 2009, the parties, an employee for the Crittenden County Tax Assessor, and an appraiser testified. In its letter opinion, the circuit court found that appellant’s lot in Marion remained unimproved until after the marriage in November 1997; that primary construction of the house did not begin until at least January R1998; and that, according to the assessor’s office, the house was at least eighty percent complete in April 1999, by which time, the parties had moved in. It found that they did not complete construction of the home until the spring of 1999, even though appellant had testified that it was completed in the spring of 1998. The court found that ap-pellee substantially contributed to these improvements and to the financial well-being of the marriage, noting her testimony, which it found credible, that she had helped build the house by painting, laying tile, wallpapering, installing other materials, and supplying some furnishings. The court noted that the parties had lived in appellee’s house in Rosemark, Tennessee, while the new house was being built and found that appellant had induced appellee to sell that house in 1999. The court added:

As for financial contributions, Plaintiff deposited in the parties’ joint bank account the sum of $29,000 between June 2000 and March 2003. She may also have deposited another $4,000 into the joint account from the estate of her deceased mother. Her employment also paid for the health insurance premiums for Defendant and his adult son for much of the marriage. Medicare now covers Defendant. This does not diminish the contributions Defendant also made, financially and by human capital, to the construction of this home. He stated he had paid about $140,000 for these improvements and there is no mortgage debt on the house. Some of these funds came from the sale of the inventory and equipment of the parties’ joint business, Renit, which also counts as contributions from Plaintiff.
The appraised value of the lot and house is now $205,000, of which the lot’s value is $35,000. As Defendant purchased the lot prior to the marriage, this is nonmarital property. However, the court is given broad powers under Ark. Code Ann. Section 9-12-315 to distribute all property in a divorce, marital and nonmarital, to reach an equitable division. Based on the facts of this case, I assign Plaintiff a 40% interest in the value of the improvements of this house, or 40% of $170,000, which equals $68,000.

|4The court made extensive findings of fact about appellant’s disposition of the rental business, and specifically found that he was not credible:

The business previously known as Renit is marital property.... Defendant said he paid Harold Hickey $70,000 for this business which the seller financed until the debt was refinanced and converted to a bank loan by First Community Bank. Defendant also indicated he used funds from the sale of his premarital property, the sale of some of his air conditioning business inventory and the sale of his shop metal building in Memphis, to purchase equipment and inventory for this rental business.... As best I can glean from the evidence, Defendant bought and sold inventory and equipment for lease in the ordinary course of business and used some of his profits to pay off his bank loans and lines of credit at the end of every year. For example, Defendant sold a backhoe for $13,500 prior to the liquidation auction in April 2008, and used these proceeds to pay the bank. Parenthetically, to say that Defendant was not forthcoming in his examination by Plaintiffs attorney would be an understatement. Getting specific, reliable, and consistent information from Defendant at trial when examined by Mr. Rainey was like pulling teeth. He was obstructive, vague, and to a significant degree, unhelpful during that examination. However, he was a little more understandable and plausible in his testimony upon being questioned by his attorney. In any event, a liquidation auction of this rental business by Devazier Auctioneers occurred in April 2008. The distribution of the proceeds of this auction is subject to dispute by the parties.
Defendant conceded that Plaintiff received nothing directly from the sales/auction proceeds. Initially, Defendant said he could not document where the proceeds of the Devazier auction went; i.e., no paper trail. He operated this business as a sole proprietor, and in fact filed married, but separate federal and state income tax returns in 2006, 2007, and 2008. Apparently, the parties had filed joint tax returns before 2006. Furthermore, Defendant benefited from some substantial depreciation credits on these returns. However, there is no evidence of Plaintiffs income tax returns for those years, so I am unable to determine to what extent she could have benefited from one half of these credits on her return, or hypothetically, if they had continued to file joint returns.
... [Defendant] netted $127,787.16 from the auction proceeds, which was a total liquidation of the business including the buybacks from Defendant. Defendant indicated he received only an additional $2,000 from these buybacks from a person named Marshall. I don’t find that testimony to be particularly credible.

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Cite This Page — Counsel Stack

Bluebook (online)
378 S.W.3d 889, 2011 Ark. App. 276, 2011 Ark. App. LEXIS 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-johnson-arkctapp-2011.