Ginsburg v. Ginsburg

Decision Date26 June 2003
Docket NumberNo. 02-707.,02-707.
Citation120 S.W.3d 567,353 Ark. 816
PartiesGeorge T. GINSBURG, Mildred Ginsburg Baron, William Mac Ginsburg and A.G. Edwards & Sons, Inc. v. Phyllis GINSBURG.
CourtArkansas Supreme Court

J. Sky Tapp, Hot Springs, for appellants.

Richard L. Slagle and Morse U. Gist, Jr., Hot Springs, for appellee.


Appellants, George T. Ginsburg, Mildred Ginsburg Baron, and William Mack Ginsburg, appeal the Garland County Probate Court's grant of summary judgment in favor of appellee, Phyllis Ginsburg, the wife of Al Ginsburg, who died intestate, and the administratrix of his estate. At issue is a transfer-on-death account ("TOD account") established by the decedent naming appellants, his children from a former marriage, as the beneficiaries. We reverse the trial court's grant of summary judgment, and we remand with instructions.

On May 9, 1987, appellee and the decedent were married, and on May 14, 2000, they separated. On June 2, 2000, appellee filed for divorce, and on June 6, 2000, the decedent was served with a divorce complaint and summons. On June 19, 2000, the decedent established a TOD account with A.G. Edwards & Sons, Inc. ("A.G. Edwards"), which provided that the proceeds of the account would be divided upon the decedent's death and paid equally to appellants, his children by a former wife. The TOD account had a market value of $243,083.00 and a position value of $177,258.00 at the time of the decedent's death. In August of 2001, appellee and the decedent began cohabitating again. During November of 2001, the decedent became ill, and appellee cared for him. The decedent died on November 13, 2001. The divorce proceedings brought by appellee were never finalized.

Upon the decedent's death, appellee opened his estate and obtained an appointment as the administratrix. Appellee then filed a petition to set aside a fraudulent transfer under Ark.Code Ann. § 28-49-109 (1987), and on December 3, 2001, obtained a temporary restraining order that prevented A.G. Edwards from disbursing the account to appellants.

On January 7, 2002, appellee filed a motion for summary judgment, arguing that the account should be brought into the estate on two grounds: (1) that the transfer was fraudulent and (2) that the transfer was meant to deprive appellee of the rights and benefits arising from her marriage with the decedent. After a hearing on appellee's motion for summary judgment, the trial court granted the motion, setting aside the transfer by the decedent on the basis that (1) the transfer was made in anticipation of appellee's suit for divorce and alimony and that (2) the transfer was made to deprive appellee of her rights and benefits arising from the marriage. In a letter order dated April 1, 2002, the trial court found that, as a matter of law, the death of the decedent "had the effect of abating the divorce suit and bringing [appellee's] widow's dower rights into choate existence." On April 10, 2002, a final order was entered.

On April 19, 2002, appellants filed a motion for reconsideration, and on May 1, 2002, appellants timely filed a notice of appeal. On May 6, 2002, the trial court denied appellant's motion for rehearing and ordered A.G. Edwards to hold the TOD account in an interest-bearing account pending further orders from the trial court. It is from the trial court's grant of summary judgment that appellants bring their appeal.

Our standard of review for summary judgment cases is well-established. Stephens v. Petrino, 350 Ark. 268, 86 S.W.3d 836 (2002). Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Id. (citing City of Barling v. Fort Chaffee Redev. Auth., 347 Ark. 105, 60 S.W.3d 443 (2001)). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Id. (citing BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001)).

We have ceased referring to summary judgment as a "drastic" remedy and now simply regard it as one of the tools in a trial court's efficiency arsenal. Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id. Moreover, "[i]f a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence." Harasyn v. St. Paul Guardian Ins. Co., 349 Ark. 9, 75 S.W.3d 696 (2002).

In the threshold issue in this case, appellants argue that the trial court erred in finding that the decedent's death negated the requirement of determining whether the TOD account was marital or nonmarital. Specifically, appellants contend that the money used to purchase the TOD account came from the decedent's separate funds.

At the outset, we note the following well-established principle that death abates a divorce suit, and it becomes our duty as an appellate court to review a decree when property rights are involved. See Speer v. Speer, 298 Ark. 294, 766 S.W.2d 927 (1989); Owen v. Owen, 208 Ark. 23, 184 S.W.2d 808 (1945); Bradshaw v. Sullivan, 160 Ark. 547, 254 S.W. 1064 (1923); Strickland v. Strickland, 80 Ark. 451, 97 S.W. 659 (1906).

In Speer, supra, we cited with approval the following:

The same reasoning is found in 33 A.L.R.4th 47, Divorce Death Pending Appeal (1984), i.e., that a divorce action is purely personal and consequently terminates on the death of either spouse, but a different result is effected when property rights are involved: "This proposition [that the action is purely personal] is to be distinguished from the view taken in cases in which the death occurs after the final decree of divorce but during the time when an appeal may be taken. The general rule applied in cases involving such appeals is that the action abates with respect to the issue of the marital status of the parties but not with respect to the determination of property interests which may be affected by the divorce." Id, at § 2. To the same effect see 24 Am.Jur.2d, Divorce and Separation § 177 (1983).

Speer, supra.

In the present case, appellee and the decedent were involved in divorce proceedings at the time of his death, but a divorce decree was never entered. The parties were still married at the time of the decedent's death. For that reason, there is no issue with regard to marital property, as defined by Ark.Code Ann. § 9-12-315 (Repl.2002), because there was no divorce. We have said that the purpose of Ark.Code Ann. § 9-12-315 is to effect the equitable distribution of property upon divorce. Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986).

However, we must address the issue whether the decedent's TOD account was owned as the separate property of the decedent. Under Ark.Code Ann. § 9-11-505 (Repl.2002), a married person may own "sole and separate property." Id. The statute states:

(a) The real and personal property which any married person now owns, or has had conveyed to him or her by any person in good faith and without prejudice to existing creditors; which is acquired as sole and separate property; which comes to him or her by gift, bequest, descent, grant, or conveyance from any person; which he or she has acquired by trade, business, labor, or services carried on or performed on his or her sole or separate account; which a married person in this state holds or owns at the time of the marriage, and the rents, issues, and proceeds of all such property shall, notwithstanding the marriage, be and remain his or her sole and separate property.

(b) The separate property may be used, collected, and invested by him or her, in his or her own name, and shall not be subject to the interference or control of his or her spouse nor shall it be liable for the spouse's debts, except as may have been contracted for the support of the spouse, or support of the children of the marriage by the spouse or his or her agent.


Appellee advances the argument that Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994), is controlling on the issue whether she should be permitted to take against the TOD account. In Hamilton, supra, a divorce action was pending at the time the husband died, and we held that his widow could take against his will. Id. We stated:

Hamilton's death had the effect of terminating the divorce action. Hence, the parties were still married under our laws when Hamilton died. His widow's election to take against his will was appropriate, the pending divorce action notwithstanding.

Hamilton, supra (citations omitted).

However, Hamilton is not dispositive on the issue in the present case because there still remains a fact-question whether the TOD account was separate property under Ark.Code Ann. § 9-11-505. Here, there is evidence that the funds used to purchase the account were made from the decedent's separate property. According to an affidavit filed by appellee Mildred "Millie" Ginsburg Baron, she states:

[M]y father and Phyllis kept everything separate, including bank accounts. My father never put her name on any deeds, or titles to property, or ever gave her any interest in any of his business interests, and she certainly never had access to any of my father's accounts, even though she did work at Mid-American...

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