Keathley v. Keathley, CA 01-423

• Decision Date: 05 December 2001
• Docket Number: CA 01-423
• Citation: 61 S.W.3d 219,76 Ark. App. 150
• Parties: Robert E. KEATHLEY v. Billie A. KEATHLEY
• Court: Arkansas Court of Appeals

76 Ark. App. 150

61 S.W.3d 219

Robert E. KEATHLEY

v.Billie A. KEATHLEY

CA 01-423

COURT OF APPEALS OF ARKANSAS DIVISION TWO

Decided December 5, 2001

Frances Morris Finley, for appellant.

Janice W. Vaughn, for appellee.

WENDELL L. GRIFFEN, Judge. STROUD, C.J., and PITTMAN, J., agree.

WENDELL L. GRIFFEN, Judge. Robert Keathley appeals from a divorce decree allocating certain marital property and debt between him and his ex-wife, Billie Keathley, the appellee. He argues that the trial court erred because it made an unequal distribution of property without considering all the factors set forth in Arkansas Code Annotated section 9-12-315 (Supp 2001), and because it considered fault as the basis for the unequal division of the marital property. We hold that the chancellor was not obligated to enumerate every factor when she analyzed the property allocation. Thus, we affirm.

The parties in this case were married on June 17, 1988. At that time, appellee was fifty-one years old and worked for Twin City Bank as a vice-president in the Credit Administration Department, where she had worked for twenty-six years. Appellant, then fifty-five, worked in the investment department atSimmons First National Bank. Appellant thereafter left the bank and began selling insurance. In 1992 or 1993, appellant had a stint placed in one of his arteries, and voluntarily retired from work. He drew Social Security retirement benefits of approximately $836 per month.

Appellee continued to work until May 2000, when her job was eliminated as the result of the sale and merger of her bank to Firstar Bank. She retired with a pension vested in the amount of $199,264.15, and a 401k plan with a net value of $64,626.21. Appellee subsequently accepted a part-time position working at her daughter's resale shop. Thus, she began spending more time at home during the weekdays. During the first week after appellee left the bank, she began receiving calls from creditors regarding credit-card debts in her name. Around this sametime, appellant suggested that they file for bankruptcy.

At the time the parties married, they had little or no credit card debt. Due to the calls from the creditors, appellee contacted a credit bureau and discovered that appellant had, without her knowledge, authority, or signature, obtained credit cards in his name, her name, and in their joint names. Their credit-card debt totaled over $100,000, and appellant had paid at least an additional $37,407 on credit-card debts in the preceding few years.

As a result, one week after appellee left the bank, she separated from appellant and filed for divorce. Although the proceedings were not designated for inclusion in the record by appellant, a temporary hearing was held on July 20, 2000. During that proceeding, appellant apparently admitted that he signed appellee's name to certain credit-card applications. The chancellor referred to appellant's testimony to this effect in both of the final hearings on the matter and in the divorce decree from which appellant appeals.

The final hearings were held on September 25, 2000, and October 20, 2000. At the divorce hearing, appellee offered evidence that she filed fraud reports with all of the creditors with whom appellant had opened an account in his name, her name, or their joint names, and had been relieved of three debts originally placed in their joint names totaling $20,718.34. She asserted that at the time of trial, she had not been relieved of unauthorized debt totaling $43,732.30. Of these debts, appellee admitted to signing the credit application for a joint card, a Bank of America card. However, she maintained that she last used the card years ago and that she had since paid the balance due on those charges. This card had an outstanding debt remaining of $10,979.

Appellee maintained that most of the credit card debt accumulated by appellant was accumulated by making cash advances for gambling because many of the cash advances were made at the Oaklawn Race Track and other Hot Springs locations. Between January 1998 and April 2000, appellant obtained at least $83,641 in cash advances. During this time period, he obtained an average cash advance of $2,987 per month.

Appellee performed most of the household duties even though she continued to work after appellant retired. Appellant handled the checkbook and paid the bills. In 1996, after an argument between the parties over appellant's failure to clean up after himself in the house, he began to do so.

When the parties married, appellant owned a home and had accumulated $25,000 in equity in the home. He sold this home and used $8,500 of the proceeds as a down payment on a new home that was acquired in joint tenancy. In 1999 when the parties sold the home, the debt on the home had been reduced from $73,000 to $54,000, a $19,000 reduction. They then bought the current marital home using $30,000 from the sale proceeds of their previous home as a down payment. The day before the final hearing in this case, the parties sold the marital home and received net proceeds of $18,000 from the sale. Both parties asked the court to order an equal division of these proceeds.

At the close of trial, the court requested a written proposal from each party explaining how each party wanted the court to divide the parties' assets and debts. Appellant proposed that the court divide the house proceeds equally, that he be obligated for all of the credit-card debt except the Bank of America card, and thathe receive one-half of the marital portion of appellee's 401k and pension plan.

The chancellor found that appellant did nothing to contribute to the acquisition, preservation or appreciation of the marital property and did not even provide services as a homemaker. The chancellor further found that appellant's conduct in depleting the assets that appellee worked to accumulate rose to the level of fraud. She ordered appellant to pay all of the credit-card debts that he incurred without appellee's knowledge or approval. She noted that appellant made false statements to the court by admitting at the temporary hearing that he had signed appellee's name to credit-card applications and then at the final hearing attempting to claim that appellee incurred the debt. The chancellor also noted that when she reminded appellant that he had previously admitted signing for the credit card in appellee's name, he claimed that he could not remember whether he signed for credit in her name.

The chancellor valued the entire portion of the $64,626.21 of pension plan as marital property and awarded appellant ten percent, or $6,462.62. However, from this amount, she deducted appellee's attorney's fees of $3,500, for a net distribution to appellant of $2,963.62. The chancellor found that it was appellant's fraudulent behavior that necessitated the need for appellee to incur most of her attorney's fees.

The chancellor also set aside another ten percent of the pension plan for the satisfaction of unresolved unauthorized debts, which she found totaled $32,753.30. She found the $10,979 Bank of America debt was a joint debt. She ordered an additional ten percent of the pension plan to be set aside to pay any portion of the Bank of America Card debt remaining on that card after proceeds from the sale of the parties' home was used to pay the Bank of America debt. The chancellor further ordered that this additional ten percent shall be used to set off one-third of various marital debts totaling $4,068 that appellee had already paid.

The chancellor valued the marital portion of appellee's 401k account at $26,057.08 as of the date of trial. Because there was a loan issued against this account, that loan must be paid in full and a $7,000 penalty will be assessed against the remaining balance in the account upon removal of the funds. Therefore, the court ordered that 20% of the penalty incurred should be deducted from appellant's share of the proceeds from this account and 80% of the penalty shall be deducted from appellee's share of the proceeds.

The chancery court ordered that another 10% of the 401k fund be set aside in the same manner as the 10% set aside from appellee's pension fund. The funds will first be used to offset any debt remaining on the Bank of America debt, then to reimburse appellee for any debts she previously paid, and finally, to reimburse appellee for any unresolved indebtedness.

The chancellor specified that should appellee be able to relieve herself of liability of the unresolved debts by February 15, 2001, any funds remaining in the set aside account, as well as any funds remaining from the 401k account would become appellant's property. However, if she is not able to relieve herself of these debts by that date, the funds in an amount equal to any remaining unresolved accounts shall revert to appellee to compensate her for her liability on those debts. The court ordered that appellee would receive the remaining funds of the pension plan, that is 80% of the marital portion of the account, and 100% of the nonmarital portion of the account.

With regard to the parties' marital home, the court found that the reduction in debt was attributable to appellee's efforts. Pursuant to both parties' requests that the home be sold and the proceeds split, the court ordered the home to be sold and that each party was to receive $5,000 in net equity proceeds. The remaining proceeds from the sale of the home were to be removed from escrow and given to appellee to pay off the Bank of America account ($10,979). The chancellor stated that by dividing the funds from the sale of the house in this manner, she was dividing the funds equally. Appellant appeals from this order. ¹

I. Consideration of Factors under Ark. Code Ann. § 9-12-315(a)(1)(B)

Appellant first argues that the trial court erred because it failed to consider all of the factors listed in Ark. Code Ann. section 9-12-315, and instead ordered an unequal division of...