Warren v. Warren

603 S.W.2d 472, 270 Ark. 163, 1980 Ark. App. LEXIS 1387
CourtCourt of Appeals of Arkansas
DecidedSeptember 10, 1980
DocketCA 80-69
StatusPublished
Cited by11 cases

This text of 603 S.W.2d 472 (Warren v. Warren) 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
Warren v. Warren, 603 S.W.2d 472, 270 Ark. 163, 1980 Ark. App. LEXIS 1387 (Ark. Ct. App. 1980).

Opinions

James H. Pilkinton, Judge.

This is a divorce case but the issues on appeal are confined only to (1) the division of property, (2) the trial court’s failure to allow alimony and (3) the sufficiency of the award of attorney’s fees made by the trial court for appellant’s counsel.

Judy A. Warren and Lonnie C. Warren had been married for fifteen years at the time of the trial but had been separated for the last two years. Dr. Warren is in private practice as a dentist and teaches at the University of Arkansas Dental Hygiene School. Mrs. Warren is not employed, except on a part-time basis. Mrs. Warren filed a petition for divorce in October of 1978 and Dr. Warren filed a counterclaim also asking for a divorce. The court granted a divorce to the wife.

The trial court awarded Mrs. Warren all of the household furnishings, a 1976 Buick automobile, one-half of Dr. Warren’s equitable interest in some real property which he owns jointly with his father, and one-half of the proceeds from the sale of Dr. Warren’s 1971 Datsun automobile. Dr. Warren was awarded all of his dental office equipment and furnishings, and a 1977 Jeep. The court also ordered that the home, in which Mrs: Warren and the children are living, be sold and the proceeds divided equally between the parties. The court did not award Mrs. Warren any interest in her husband’s accounts receivable. However, the trial court did order the husband to pay all of the family debts. The parties are the parents of two minor children, Bryce, age 11, and Rachelle, age 5. Mrs. Warren received custody of the children and Dr. Warren was ordered to pay $700 per month to the mother as child support. No alimony was awarded.

Counsel for Mrs. Warren was awarded a $100 fee at a temporary hearing in March of 1979 and an additional fee of $600 at the trial on September 29, 1979, at which time Mrs. Warren was awarded a divorce. Mrs. Warren has appealed from the decision of the trial court insofar only as the three matters mentioned above are concerned. There is no cross-appeal.

I

Appellant argues that the trial court erred by failing to award any portion of the accounts receivable to the wife. Counsel seems to agree, and the record would indicate, that the trial court was attempting to distribute all of the marital property one-half to each party in accordance with Ark. Stat. Ann. § 34-1214(1) (Supp. 1979). We agree with appellant that accounts receivable may be treated as a marital asset with a provable net present value. Riegler v. Riegler, 243 Ark. 113, 419 S.W. 2d 311 (1967). While the decree did not spell out individual allocations in some of the specific items, including the accounts receivable, and while some of the value testimony was sharply disputed, it is apparent from the record that the value of the marital assets Mrs. Warren received, taken as a whole, equaled or exceeded the value of the property awarded to Dr. Warren. The husband was required by the court to pay all of the family debts amounting to $13,832.67. Under the record in this case, we are unable to say that the chancellor did not take the accounts receivable into consideration in making the property division. Nor can we say the trial court’s action in the division of the property was clearly erroneous or clearly against a preponderance of the evidence. Equity cases are tried de novo on appeal upon the record made in the chancery court. O’Neal v. Ellison, 266 Ark. 702, 587 S.W. 2d 580 (1979); Ferguson v. Green, 266 Ark. 556, 587 S.W. 2d 18 (1979). However, we do not reverse the decision of the chancellor on a disputed fact question unless the decision is clearly against the preponderance of the evidence. Rule 52, Arkansas Rules of Civil Procedure.1

Appellant next argues that the trial court erred in holding appellee’s interest in the Twin Lakes lot to be one-third equity. The testimony is undisputed that Dr. Warren and his father purchased the Twin Lakes lot for $5,000 under a sales contract as an investment. The contract did not set out the percentage of ownership. The evidence shows that appellee’s father paid $1,000 down and Dr. Warren made $50.00 monthly payments, and is continuing to make $50.00 monthly payments. Dr. Warren testified that his father made an additional $1,500 payment. Appellant contends that the parties considered this to be a 50-50 partnership, appellee’s father having contributed $2,500 and appellee making his contribution of $2,500 is the form of monthly payments of $50.00 each. Appellee contends that it is immaterial whether Dr. Warren and his father bought the Twin Lakes property as partners — with equal ownership — as that is not really the issue. Appellee claims the real issue is what equitable interest Dr. Warren has in the property for the purpose of awarding appellant one-half of the value of that interest. The property was valued at $8,000 but Dr. Warren and his father still owed $1,500 on the land. It is undisputed that Dr. Warren has paid only one-third of the purchase price and his father has paid two-thirds of it. The trial court found that the equitable interest of Dr. Warren in this particular property was $2,200, and that Mrs. Warren was entitled to receive one-half of that amount. We cannot say that the trial court’s determination of this issue was clearly erroneous or clearly against the preponderance of the evidence. The burden was upon appellant to establish the nature and extent of appellee’s property. It was for the chancellor to resolve the conflict in the evidence. McCray v. McCray, 256 Ark. 868, 514 S.W. 2d 219 (1974). After a careful review of the record, we are unable to say that the chancellor did not award Mrs. Warren her proper statutory share in value of the personal property.

Ill

Appellant contends that the trial court erred in ordering the sale of the homestead. The chancellor ordered Dr. Warren to make the monthly mortgage reduction payments on the homestead, plus the pro rata payments for insurance and taxes, for the months of October, November, and December, 1979, after which the court ordered the homestead sold and the net proceeds divided equally between the parties. The decree had the effect of dissolving the estate by the entirety under which the parties held title to their home.

The record shows that the parties were married on June 13, 1964, in Little Rock, Arkansas, and then moved to Memphis, Tennessee, where appellee was a third-year dental student. Mrs. Warren provided income while he completed dental school, after which they returned to Little Rock; where Dr. Warren started teaching at the University of Arkansas Dental Hygiene School and began his private dental practice. Their standard of living continued to increase. They constructed a new home in 1976 which was then appraised at $80,000. According to the evidence the home was worth considerably more at the time of the trial. Dr. Warren paid income taxes in 1977 on an adjusted gross income of $45,934. In 1978 his adjusted gross income was $58,200. At the time of the trial, his 1979 adjusted gross income had not been determined but the testimony indicates that it would be somewhat less than the receding years. Dr. Warren had deposited $1,-500 a month to the household account for approximately three years prior to the trial.

Mrs. Warren had devoted most of her time to caring for the two children and had not been employed on a regular basis.

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Bluebook (online)
603 S.W.2d 472, 270 Ark. 163, 1980 Ark. App. LEXIS 1387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warren-v-warren-arkctapp-1980.