Jez v. Jez

• Decision Date: 07 December 2016
• Docket Number: No. CV–16–191,CV–16–191
• Citation: Jez v. Jez, 509 S.W.3d 1 (Ark. App. 2016)
• Parties: James JEZ, Appellant v. Angel JEZ, Appellee
• Court: Arkansas Court of Appeals

509 S.W.3d 1

James JEZ, Appellant

v.Angel JEZ, Appellee

No. CV–16–191

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered December 7, 2016

Alexander Law Firm, by: Hubert W. Alexander, Jacksonville, for appellant.

Hilburn, Calhoon, Harlper, Pruniski & Calhoun, Ltd., by: Sam Hilburn, North Little Rock and Erin W. Lewis, for appellee.

LARRY D. VAUGHT, Judge

Appellant James "Jimmy" Jez appeals the Pulaski County Circuit Court's October 13, 2015 divorce decree. Jimmy argues that the circuit court erred in awarding appellee Angel Jez half of his one-third interest in the Jez Family Limited Partnership, in calculating child support, and in awarding Angel alimony. We affirm.

The parties were married on September 25, 1995, and they had a son, J.J., in 2000. The parties separated on July 19, 2014. On August 8, 2014, Angel filed a complaint for divorce, and on August 14, 2014, Jimmy filed an answer and a counterclaim for divorce.¹

After multiple hearings, a divorce decree was entered by the circuit court on October 13, 2015. Relevant to this appeal, the decree granted Angel a divorce based on general indignities, awarded her custody of J.J., ordered Jimmy to pay child support of $316 biweekly, ordered him to pay Angel $200 per month in alimony, and awarded Angel a one-half interest of Jimmy's interest in his family's partnership. Jimmy filed a notice of appeal from this order on October 20, 2015.²

Jimmy's first point on appeal is that the circuit court clearly erred in awarding Angel a one-half share of his interest in the Jez Family partnership. We review division-of-marital-property cases de novo, but the circuit court's findings of fact are affirmed unless they are clearly erroneous or against the preponderance of the evidence. Sanders v. Passmore , 2016 Ark. App. 370, at 7, 499 S.W.3d 237. A finding of fact is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed; in reviewing the circuit court's findings, the reviewing court gives due deference to the circuit court's superior position to determine the credibility of the witnesses and the weight to be accorded to each witness's testimony. Id.

Jimmy argues that the circuit court erred in finding that the partnership was marital property and dividing it equally. He contends that his testimony and that of his father reflect that his interest in the partnership was a gift; therefore, he claims it is his separate, nonmarital property and, pursuant to Arkansas Code Annotated section 9–12–315, should be returned to him.

Arkansas Code Annotated section 9–12–315 (Repl. 2015) governs the division of marital property. Section 9–12–315(a)(1)(A) provides that marital property is to be divided equally unless it would be inequitable to do so. If the property is divided unequally, then the court must give reasons for its division in the order. Ark. Code Ann. § 9–12–315(a)(1)(B). The code also provides a list of factors the court may consider when choosing unequal division. Ark. Code Ann. § 9–12–315(a)(1)(A)(i)–(ix). Section 9–12–315(b)(1) excludes from the definition of marital property "property acquired ... by gift." Jimmy had the burden of proving that his partnership interest was his separate, nonmarital property. Johnson v. Johnson , 2011 Ark. App. 276, at 8, 378 S.W.3d 889, 895.

Here, the decree reflects that Jimmy's partnership interest was marital property (not a gift), which the court divided equally pursuant to section 9–12–315(a)(1)(A). This was not clearly erroneous. The partnership agreement reveals that it was created on May 22, 1996, during the parties' marriage. The agreement further reflects that during the marriage Jimmy contributed $11,132.21 as an initial contribution to the partnership in return for a 33% interest in the partnership. Thus, the evidence demonstrates that he used marital funds to invest in the partnership. Jimmy offered no evidence to the contrary. Finally, there was testimony that Angel and Jimmy paid taxes on the partnership during their marriage. We acknowledge the testimony of Jimmy and his father that Jimmy's interest in the partnership was a gift; however, in reviewing a circuit court's findings, we give due deference to the court's superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Myrick v. Myrick , 339 Ark. 1, 9, 2 S.W.3d 60, 65 (1999). Therefore, based on our de novo review, we hold that the court was not clearly erroneous in finding that Jimmy failed to meet his burden of proving that his interest in the family partnership was a gift. Accordingly, we affirm the trial court's finding that the partnership was marital property and equally distributing it.

Jimmy also argues on appeal that the circuit court erred in calculating his income for child-support purposes. He claims that the evidence fails to support the finding that his monthly "take-home pay" is $2,692.31.

Our standard of review for an appeal from a child-support order is de novo on the record, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Taku v. Hausman , 2014 Ark. App. 615, at 4, 2014 WL 5697450. In reviewing a circuit court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id.

Here, the circuit court did not clearly err in awarding child support of $316 biweekly. While the decree stated that the child-support award was based on Jimmy's monthly "take-home" income of $2,692.31, the support award was actually calculated based on his net income of $2,113.50, which was the income figure the parties stipulated to at the onset of the final hearing. The parties not only stipulated to the $2,113.50 income figure, but they further stipulated that his child-support obligation, based on that income, was $316 biweekly. It was Jimmy's counsel who articulated the stipulation and made the calculations at the hearing. There was no evidence or argument on the matter of child support thereafter. Accordingly, we hold that the circuit court did not clearly err in relying on the parties' income and child-support stipulation and, accordingly, in finding that Jimmy was obligated to pay child support of $316 biweekly based on that income. Taku , 2014 Ark. App. 615, at 5. Accordingly, we affirm on this point.

Jimmy's final argument on appeal is that the circuit court abused its discretion in awarding Angel alimony of $200...