McCormick v. McCormick

416 S.W.3d 770, 2012 Ark. App. 318, 2012 Ark. App. LEXIS 429
CourtCourt of Appeals of Arkansas
DecidedMay 2, 2012
DocketNo. CA 11-1049
StatusPublished
Cited by11 cases

This text of 416 S.W.3d 770 (McCormick v. McCormick) 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
McCormick v. McCormick, 416 S.W.3d 770, 2012 Ark. App. 318, 2012 Ark. App. LEXIS 429 (Ark. Ct. App. 2012).

Opinion

CLIFF HOOFMAN, Judge.

| ] This appeal concerns the division of property acquired by appellant Denise McCormick and appellee Albert McCormick prior to and during their marriage. In six points for reversal, Denise argues that the circuit court misapplied Arkansas Code Annotated section 9-12-315 (Repl. 2009) and erred in dividing the parties’ property unequally. We affirm.

Denise is a medical doctor, and Albert is long retired from General Motors. The parties started living together in 2002 and in 2004 began commingling their funds, after Denise had resolved some past tax issues she had with the IRS. They were married in January 2006. In July 2009, Denise filed for divorce. Albert answered and counterclaimed for divorce.

At trial, one of the major issues litigated was the status and division of the forty-acre marital residence, referred to as the Fulton County property, which the parties purchased in February 2006. As part of the transaction, the parties traded an eight-acre piece of property Albert had purchased in 2001, referred to as the Glen-coe property. The parties received a [^credit of $90,000 for the Glencoe property toward the $132,500 purchase price of the Fulton County property. The parties executed a mortgage for the remaining portion of the purchase price, which was satisfied later in 2006. Title to the Fulton County property was taken solely in Albert’s name. Albert testified that this was done at Denise’s insistence. Both testified that they feared that the IRS would seek to attach Albert’s property if the title was in Denise’s name.

The parties also contested the division of various bank accounts, retirement accounts, and certificates of deposit, all of which were titled solely in Albert’s name. Some of these accounts existed prior to the marriage, and others were acquired during the marriage. Also at issue was the division of four time-share properties titled in both names and other personal property, including various automobiles.

The circuit court entered its decree of divorce on June 6, 2011, granting Denise a divorce on the grounds of eighteen-months’ separation. The court found that the Fulton County property was marital property and ordered it sold at auction. The decree provided that Albert would receive the first $90,000 in proceeds on the basis that the down payment was made with his premarital property. The court gave two time-share properties to each party, finding that the total value of the two properties each party received was approximately equal. Although the court found $20,000 in one of the accounts to be marital property, it did not award any of the funds to Denise after finding that she had sold marital property after filing for divorce and had not divided the proceeds with Albert. Denise was also ordered to pay Albert $2,708 for a debt he paid on her Cadillac from her proceeds from the Fulton ^County property. Denise was awarded a Sebring automobile free of debt and an Avalanche vehicle with its associated debt. Albert was awarded a 2010 Chevrolet pick-up, a riding mower, guns, and other personal items. Denise was made solely responsible for any tax liability she may owe. The court’s findings of fact were attached to the decree. In those findings, the circuit court noted that Denise admitted selling various items of marital property totaling $22,300. The court also applied the “unclean hands” doctrine in connection with Denise’s contention that she was entitled to one-half of all of the accounts held by Albert because she had made contributions to those accounts. The court discussed in this regard Denise’s testimony that she had received a discharge in bankruptcy in 2003 that discharged approximately $166,000 in tax debt to the IRS; her testimony that she did not file tax returns for the years 2006 through 2009 because Albert would not provide her with the information that she needed to do so; and her claim that she did not have any bank accounts or real property titled in her name because this was demanded by Albert. The court noted Albert’s testimony to the contrary and stated that it was perplexed as to Denise’s failure to file tax returns during the marriage. The court also could not find any rational basis for her failure or neglect to title the real property or bank accounts in her name.

On June 14, 2011, Denise filed a motion for new trial, claiming that the division of property was clearly against the preponderance of the evidence and that the court deviated from the statute without stating its reasons. After being granted an extension of time, Albert filed his response to the motion on July 11, 2011. The motion for new trial was deemed denied on July 14, 2011, and Denise timely filed her notice of appeal on July 22, 2011.

|4On appeal, Denise contends that the circuit court erred in (1) finding that Albert should receive $90,000 off the top from the sale of the parties’ marital home; (2) dividing the four time-share properties owned by the parties without regard to their value; (3) awarding Albert all accounts in his name despite the fact that income used to open these accounts was acquired from both parties’ income; (4) failing to account for any increase in the investments made by the parties during their marriage; (5) failing to consider the contributions of the parties for their property and its appreciation during their marriage and dividing it equally; and (6) failing to divide the marital personal property equally, including a 2010 Chevrolet truck valued at $30,000.

The statutory authority for a circuit court’s division of property upon divorce is set forth in Arkansas Code Annotated section 9-12-815 (Repl.2009). Section 9-12-315(a) gives a court the discretion to divide equitably both marital and nonmarital property after considering certain listed factors in order to achieve an equitable distribution. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993); Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983). While the circuit court must consider these factors and state its reasons for dividing property unequally, the court is not required to list each factor in its order, nor is it required to weigh all of the factors equally. Bamburg v. Bamburg, 2011 Ark.App. 546, 386 S.W.3d 31. 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. Baxley v. Baxley, 86 Ark.App. 200, 167 S.W.3d 158 (2004). With respect to the division of property in a divorce case, we review the circuit court’s findings of fact and affirm them unless they are clearly erroneous or |fiagainst the preponderance of the evidence. Id. A circuit court’s finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Id. In reviewing a circuit court’s findings, we defer to the circuit judge’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Id. We note that the statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Id. We will not substitute our opinion as to what exact interest each party should have; we will decide only if the order is clearly wrong.

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Bluebook (online)
416 S.W.3d 770, 2012 Ark. App. 318, 2012 Ark. App. LEXIS 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccormick-v-mccormick-arkctapp-2012.