Dillard v. Dillard, CA

• Decision Date: 21 June 1989
• Docket Number: No. CA,CA
• Parties: John E. DILLARD, Appellant, v. Cecilia Ann DILLARD, Appellee. 88-359.
• Court: Arkansas Court of Appeals

Page 355

772 S.W.2d 355

28 Ark.App. 217

John E. DILLARD, Appellant, v. Cecilia Ann DILLARD, Appellee.

No. CA 88-359.

Court of Appeals of Arkansas,

En Banc.

June 21, 1989.

Robert Batton, Jacksonville, for appellant.

Howell, Price, Trice, Basham & Hope, Little Rock by Dale Price and Carey E. Basham, for appellee.

MAYFIELD, Judge.

The parties in this divorce case were married in 1963. The appellee, Cecilia Ann Dillard, filed for divorce on April 16, 1987. They have two sons: John Vincent, who was twenty-one at the time the divorce suit was filed, and Michael Edward, who was seventeen. The appellant, John E. Dillard, appeals the court's property division. He argues that the court erred in (1) failing to order appellee to return certain funds taken from two joint accounts; (2) awarding appellee one-half of his severance pay; and (3) finding that two racing cars were marital property.

In 1980 appellant opened two accounts in Savers Federal Savings and Loan, each of which listed the name of one of his sons, followed by appellant's name and his wife's name, all separated by an "or." The social security number listed on each account was that of the son and each of the young men testified that he was aware of the fund in his name. Each of them understood that the fund was for his college education. Each of them thought the fund in his name belonged to him; knew he could withdraw the money from the fund but had not been told by his father that the fund was a gift; and before the parents separation, neither of the boys had ever removed any of the money from his fund.

Appellee testified that she had not signed the signature card for either account and, until just prior to the separation from her husband, had never written a check on either account. However, prior to her separation, she withdrew $2,500.00 from Michael's account and, on the day she filed for divorce, she withdrew another $500.00 from that account. She testified that the accounts had originally been set up when the boys were small to provide for their college education but that her husband had used the accounts for some ordinary personal obligations.

Appellant testified that the accounts were marital property; that the money in them did not belong to the boys and that neither had any authority to remove any funds from either account. He said he placed the boys' names on the accounts to provide funds for them and as a means of bypassing probate in case something happened to him and their mother.

After divorce proceedings had been instituted, appellee and her sons went to Savers and withdrew all the money from each account. Each check was made out to appellant and appellee, as well as to the son whose name was on the account. John Vincent's withdrawal totalled $34,434.05; Michael's withdrawal totalled $29,244.28. Appellee endorsed each check and the money was deposited in a bank in Texas. John Vincent deposited his money in an account in his and his wife's names; Michael deposited his money in an account in his and his mother's names.

Appellee argued at trial that the money in the two accounts was a gift to the boys and, therefore, not marital property. The chancellor held, however, that the money was marital property and ordered appellee to return to appellant one-half of the funds withdrawn by Michael. The appellee has not appealed from that decision. As to the funds withdrawn by John Vincent, the chancellor, during a discussion with counsel at the end of a hearing, stated:

I think the funds, as between the parties, were marital property, and if they were still setting in the Savers account, I would order them split. I just need to know what to do, since they're not, and were withdrawn by persons that Mr. Dillard authorized to withdraw them and not her.

After further discussion about the account in John Vincent's name, the chancellor stated:

I did not find that she caused her son, her older son, to make the withdrawal. That dispute is between him and his father. And possibly his mother, if she wants some portion of it back. As to the amount that is remaining in the account with the younger son, one-half of those funds should be returned to Mr. Dillard.

Appellant contends on appeal that the chancellor erred in failing to also order appellee to return to him one-half of the funds taken from John Vincent's account. Appellant argues that the court incorrectly stated he had authorized his sons to withdraw funds from the accounts; that appellee was a participant in the improper withdrawal of the funds; and that appellee still has control over sufficient funds to make restitution to him.

The first argument is based upon the assumption that the chancellor relied upon Ark.Code Ann. § 23-32-1005 (1987) for her decision that appellant had authorized his sons to withdraw from the accounts. This statute provides that accounts may be opened in banking institutions and savings and loan associations in the names of two or more persons and unless a written designation to the contrary is made the account will be owned by those persons as joint tenants with right of survivorship. The statute also provides that unless a contrary written designation is made, the funds in the account may be paid to or on order of any joint tenant or any surviving joint tenant. The savings and loan associations were added to this statute by an amendment enacted in 1983. Thus, the appellant argues that the act does not apply to this case since these accounts were opened in 1980. However, we do not agree that the chancellor relied upon this statute, and we think the view she took makes the statutory problem moot.

There is in evidence a signature card executed November 12, 1980, to open one of the accounts in the Savers Federal Savings and Loan Association. This card was for the account in Michael's name. The card has a line designated for the names of the holders of the account and underneath this line is printed "as joint tenants with right of survivorship and not as tenants by the entirety." The first name on this card is Michael E. Dillard, followed by John E. Dillard, followed by Cecilia Dillard, with the word "or" at the end of the first two names. While the card for John Vincent's account is not in evidence, there is no contention that another type card was used for his account. Also, there is in evidence an account statement, dated May 7, 1987, for each account. The names on John Vincent's account are just like the ones on Michael's account except for the names of the boys. The appellant testified that he opened both accounts and he was responsible for the manner in which they were opened.

Based upon the names on the accounts and the other evidence in the case, the chancellor found that the money withdrawn by John Vincent from his account was authorized by his father and that any dispute about the ownership of that money was a matter between them. Although the appellant argues that the appellee was responsible for the withdrawal of the funds, the trial court did not agree. The judge's decision as to the other fund is not at all inconsistent. Both funds were found to be marital...