Ford v. Ford, CA

• Decision Date: 24 September 1980
• Docket Number: No. CA,CA
• Citation: 270 Ark. 349,605 S.W.2d 756
• Parties: Bonnie Faye FORD, Appellant, v. Taid FORD, Jr., Appellee. 80-143.
• Court: Arkansas Court of Appeals

Page 756

605 S.W.2d 756

270 Ark. 349

Bonnie Faye FORD, Appellant, v. Taid FORD, Jr., Appellee.

No. CA 80-143.

Court of Appeals of Arkansas.

Sept. 24, 1980.

Rehearing Denied Oct. 29, 1980.

Cathey, Goodwin, Hamilton & Moore, by Donis B. Hamilton, Paragould, for appellant.

Burris & Berry, Pocahontas, for appellee.

HAYS, Judge.

The parties, husband and wife, were divorced by decree dated January 23, 1979. The wife brings this appeal from certain portions of the decree. Three issues are raised, the primary issue being whether the chancellor erred in the division of personal property by not applying the criteria contained in Act 705 of 1979. Because it is clear that Act 705 was not applied, the case is reversed and remanded.

Bonnie Faye Ford and Taid Ford, Jr., were married in March, 1960. She was 17 years of age at the time and had not completed high school. The couple began their marriage with no property of consequence and Mr. Ford began farming cotton on rented land. The couple had their first child, a son, in 1961 and their second, a daughter, in 1974. Mrs. Ford worked in the home and seems to have helped considerably in the fields in the first years of the marriage, admittedly the first seven or eight, disputedly after 1968 or 1969. In 1969 or 1970, Mrs. Ford began working as a secretary in a framing business, which continued for three or four years. Her wages were used for family needs or applied to savings jointly held. By all accounts, she was frugal in money matters. There is some dispute as to whether she prepared meals as regularly as Mr. Ford had a right to expect and whether he was not entitled to have his work clothing washed more frequently, although Mr. Ford describes her as having been a good housekeeper. He testified that she did not always prepare meals for him; she contended that he preferred to eat frequently at O'Kean's store, notwithstanding her pleas to eat at home.

Mrs. Ford testified that she began experiencing depression before becoming pregnant with her daughter. The depression became acute a few months prior to the birth. She did not leave the hospital after the delivery, but was transferred directly from maternity to the wing for psychological treatment. Since 1974, she has had intermittent, lengthy institutional care for recurrent, severe depression and apparently has been regularly under the care of psychiatrists since that time. She has undergone electro-shock therapy on more than one occasion and has attempted suicide at least once. The evidence clearly supports the conclusion that Mrs. Ford has a genuine, long standing depression of immobilizing effect.

The parties have not resided together for the past five and one-half years, although they have had sexual relations on several occasions, most recently after suit was filed.

Mr. Ford has clearly been an industrious, capable farmer, and the evidence shows that over the years the labor and prudent management of the Fords has enabled them to acquire and improve farm lands of approximately 190 acres, to build a home, and to accumulate substantial farm equipment and savings, the personal property aggregating around $300,000.00 by some estimates, $360,000.00 by others, all debt free. In addition to the farmlands owned jointly, Mr. Ford farms some 800 additional acres which he rents from his father.

At the close of trial, the chancellor made lengthy comments concerning his findings so as to give clarity to the decree, which have been beneficial to counsel and to this court. The decree granted the divorce, on uncontested evidence, to Mr. Ford, along with custody of their daughter, Brandy, which Mrs. Ford conceded to be in their daughter's best interest. Possession of the home and one acre was given to Mr. Ford until Brandy reaches her majority. The remaining acreage was converted to tenancy in common and ordered sold. Alimony was denied at the present time, although the court reserved jurisdiction as to possible future needs. In dividing personal property, the court concluded on the basis of the case of Poskey v. Poskey, 228 Ark. 1, 305 S.W.2d 326 (1957), that Act 705 of 1979 could not be applied retroactively to property which had vested prior to the effective date of the Act. On that assumption, the court awarded Mrs. Ford 10% of the personal property which the chancellor calculated to be approximately $300,000.00. The formula for this division was arrived at on the basis of Mr. Ford's testimony that of the total acreage which he farmed, 20% belonged to the Fords jointly and since Mrs. Ford's interest therein was one-half, she was entitled to one-half of 20%, or 10%. The chancellor allowed Mrs. Ford's solicitors a fee of $1,000.00 to be paid by Mr. Ford.

Appellant appeals only from the chancellor's division of personal property, the denial of alimony, and the amount of fee allowed.

In substance, Act 705 provides that at the time a divorce decree is entered "all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable." If the court finds an equal division inequitable, it shall consider the following criteria:

(1) Length of the marriage

(2) Age, health and station in life of the parties

(3) Occupation of the parties

(4) Amount and sources of income

(5) Vocational skills

(6) Employability

(7) Estate, liabilities and needs of each

(8) Opportunity for further acquisition of assets and income

(9) Contribution of each party in the acquisition, preservation or appreciation of "marital property," including services as a homemaker.

Marital property is defined as all property acquired by either spouse subsequent to the marriage, except for gifts, inheritance, exchange, etc.

One proviso clearly present in Act 705 is the requirement that when property is not divided one-half to each, the court must state in writing the basis and reasons for not doing so in accordance with the above criteria. Appellee argues that the court's comments dictated into the record was done in compliance with this requirement, but that cannot be confirmed; none of the criteria are mentioned.

We believe the chancellor erred in interpreting Poskey v. Poskey as requiring that Act 705 of 1979 can be applied only to personal property acquired after the effective date of the act. The decision in Poskey simply followed the earlier case of Jenkins v. Jenkins, 219 Ark. 219, 242 S.W.2d 124 (1951), in holding that an estate by the entirety in land acquired prior to the effective date of Act 340 of 1947 cannot be dissolved by the chancellor in divorce cases and treated as a tenancy in common. In Jenkins, the court acknowledged that a majority of states hold that an estate by the entirety can be dissolved by divorce decree, but that in Arkansas the contrary view had become a rule of property and, hence, Act 340 could only be applied prospectively. Whatever may be said of Jenkins v. Jenkins, there is nothing in that opinion or in Poskey v. Poskey to require us to apply such a restrictive concept to Act 705 in a case affecting personal property in divorce. In fact, chancery courts have had the inherent power to divide personal property in divorce suits in accordance with the equities of the case, both by statute and at common-law, for decades. Williams v. Williams, 186 Ark. 160, 62 S.W.2d 971 (1932). Nelson v. Nelson, 267 Ark. 353, 590 S.W.2d 293 (1979).

Appellant argues that an equal division of property should have been ordered by the trial court, irrespective of whether Act 705 criteria are applied and a number of decisions support that view: Williams v. Williams, supra; Stephens v. Stephens, 226 Ark. 219, 288 S.W.2d 957 (1956); Nelson v. Nelson, supra. In Nelson, the court stated:

We have long held that a court has a right to divide property acquired through the joint efforts of the parties on an equitable basis. Stephens v. Stephens, 226 Ark. 219, 288 S.W.2d 957 (1956). When the parties were married they did not own this property. It was acquired during the marriage, through the joint efforts of the parties. We are not required to make a determination as to whether more money or effort was expended on the part of one party or the other in reaching this conclusion. For about 18 years all of the efforts of both parties were directed to the acquisition and operation of the farm. Both of them assisted in raising the children as well as doing all other duties necessary to the operation of the farm. After appellant became employed, outside the home, her money was used to pay household expenses, purchase groceries, and repair and refinish the house in Waldron. In discussing the matter of disposition of property in a divorce proceeding, when the property was held only in the husband's name, we stated in the case of Williams v. Williams, 186 Ark. 160, 52 S.W.2d 971 (1932):

. . . If appellee and appellant by their joint work, labor, and management, acquired the property, a court of equity would even before the recent statutes, protect the wife's interest in the property.

(And) . . .

We think the law relating to ownership of personal property is the same as that cited in the previous point relating to ownership of real property.

We view the difference between the decisions regarding a wife's right to property before the enactment of Act 705 and afterward as being largely a matter of emphasis. In the earlier class of cases, the emphasis was on the degree to which the wife contributed to the joint earnings of parties and, thus, the wife whose primary activities were those of a homemaker was subject to being penalized in a divorce by her inability to point to actual monetary contributions during the marriage. Act 705 seeks to correct the inequity inherent in that approach by expressly including homemaking as one element for the court to consider if it departs from an equal division. But the basic premise of Act 705, we believe, is that "marital property" belongs to the parties jointly. We conclude...