Lofton v. Lofton, CA

• Decision Date: 02 March 1988
• Docket Number: No. CA,CA
• Citation: 23 Ark.App. 203,745 S.W.2d 635
• Parties: Mary R. LOFTON, Appellant, v. Floyd J. LOFTON, Appellee. 87-242.
• Court: Arkansas Court of Appeals

Page 635

745 S.W.2d 635

23 Ark.App. 203

Mary R. LOFTON, Appellant, v. Floyd J. LOFTON, Appellee.

No. CA 87-242.

Court of Appeals of Arkansas En Banc.

March 2, 1988.

Jerry Cavaneau, Searcy, for appellant.

Philip E. Dixon, Mark F. Hampton, Little Rock, for appellee.

MAYFIELD, Judge.

Appellant, Mary Lofton, was awarded an uncontested divorce from appellee, Floyd Lofton. She appeals the chancellor's decision regarding the division of certain personal property and his failure to award alimony.

The parties were married in Texas in 1960. At the time of the divorce, they had been married twenty-four years and had two grown daughters. Appellant was a school teacher and had worked during the marriage for all but about six years when the children were small. The appellee attended law school at night during the marriage and at the present time is a circuit judge.

In support of the argument that she deserved an award of alimony, appellant cites Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980), in which the Arkansas Supreme Court stated certain factors to be considered when setting alimony. The appellant applies these factors to her case and concludes the chancellor erred in failing to award alimony.

The award of alimony in a divorce action is not mandatory, but is a question which addresses itself to the sound discretion of the chancellor, Bohannon v. Bohannon, 12 Ark.App. 296, 675 S.W.2d 850 (1984), and the chancellor's decision will not be disturbed absent a clear abuse of that discretion, Neal v. Neal, 258 Ark. 338, 524 S.W.2d 460 (1975); Weathers v. Weathers, 9 Ark.App. 300, 658 S.W.2d 427 (1983). Without any discussion of the details of the evidence, we simply state that we do not find the chancellor's decision with respect to alimony to be a clear abuse of his discretion.

Appellant also argues that the chancellor erred in holding that a portion of the funds evidenced by two jointly held certificates of deposit was the separate property of appellee. As a result of his father's death, appellee and his brother each inherited one-half interest in a house. Appellee bought his brother's interest with approximately $5,000.00 in marital funds. Subsequently, appellee sold the house for $25,000.00, added another $5,000.00 in marital funds to that amount and purchased two $15,000.00 certificates of deposit in the names of Floyd and Mary Lofton. The interest earned by one of the certificates of deposit went into a joint checking account and the interest of the other went into a joint savings account.

The chancellor held that because marital funds had been used to purchase the brother's half interest in the house, $12,500.00 of the proceeds of the sale of the house was marital property. However, he held the other $12,500.00 to be appellee's separate property by inheritance. Appellant contends that the appellee, by placing the proceeds from the sale of the house into certificates of deposit bearing both her name and appellee's name, converted the property to a tenancy by the entirety and that, under Ark.Stat.Ann. § 34-1215 (Supp.1985), it must be divided equally. The appellee, however, says that the principal amounts of the certificates of deposit were never utilized by either party during the marriage and argues that he did not intend to make a gift of the inherited funds to his wife.

In Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975), the Arkansas Supreme Court discussed tenancy by the entirety property as follows:

We have long recognized that there may be a tenancy by the entirety in personal property, including choses in action....

The acquisition of property, whether realty or personalty, by persons who are husband and wife by an instrument running to them conjunctively, without specification of the manner in which they take, usually results in a tenancy by the entirety.... There is at least a presumption that the taking in such circumstances is by the entirety.... The fact that the consideration given for the property taken in the two names belonged to the husband only is of little, if any, significance where he is responsible for the property being taken in both names as the presumption is that there was a gift of an interest by the husband to the wife, even though the wife may have no knowledge of the transaction....

....

The presumption is strong, and it can be overcome only by clear, positive, unequivocal, unmistakable, strong, and convincing evidence, partially because the alternative is a resulting trust the establishment of which, under such circumstances, requires that degree of proof.... [Citations omitted.]

259 Ark. at 19-20, 531 S.W.2d 28.

We pause at this point to note that the words "positive," "unequivocal," and "unmistakable" were used in Ramsey to describe the standard of evidence which had to be met in order to overcome the rebuttable presumption that arises when property is taken in the names of both husband and wife. We also note, however, that these words were taken from cases in other states. The Arkansas cases cited in Ramsey express the standard in terms of evidence that is "clear and convincing," Simpson v. Thayer, 214 Ark. 566, 217 S.W.2d 354 (1949), citing Parks v. Parks, 207 Ark. 720, 182 S.W.2d 470 (1944), and evidence that is "clear, satisfactory and convincing," Hubbard v. McMahon, 117 Ark. 563, 576, 176 S.W. 122 (1915). And in a case decided after Ramsey, the court said that clear and convincing evidence is evidence by a credible witness whose memory of the facts about which he testifies is distinct, whose narration of the details thereof is exact and in due order, and whose testimony is so clear, direct, weighty, and convincing as to enable the fact finder to come to a clear conviction, without hesitance, of the truth of the facts related; the court concluded: "It is simply that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established." Kelly v. Kelly, 264 Ark. 865, 870, 575 S.W.2d 672 (1979). See also Glasgow v. Greenfield, 9 Ark.App. 224, 228, 657 S.W.2d 578 (1983). It is, therefore, our opinion that the addition of the other adjectives in Ramsey does not raise the required quantum of proof beyond that set out in Kelly and Glasgow.

We relied upon Ramsey and its presumption in Warren v. Warren, 11 Ark.App. 58, 665 S.W.2d 909 (1984), in holding that real property purchased as husband and wife was tenancy-by-the-entirety property and had to be dissolved according to Ark.Stat.Ann. § 34-1215 (Supp.1983). We again relied on Ramsey and the presumption in Lyle v. Lyle, 15 Ark.App. 202, 691 S.W.2d 188 (1985), when we held that the chancellor erred in crediting each spouse with that portion of nonmarital funds contributed by each toward the down payment on forty acres deeded to them as tenants by the entirety. We stated: "In such a situation, there arises a presumption of a gift from the party furnishing the consideration. ... Although this presumption is rebuttable, it is a strong one." 15 Ark.App. at 204, 691 S.W.2d 188. It is also clear that an estate by the entirety may be created in personal property. Ramsey, supra; Black v. Black, 199 Ark. 609, 135 S.W.2d 837 (1940); Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S.W. 1 (1921).

One of the questions involved in Black v. Black, supra, was whether Mr. Black, by changing a bank checking account from his individual name to the names of "Mr. and Mrs. W.G. Black," had created an estate by the entirety in the bank deposit. The appellate court said the question depended upon Mr. Black's intention in opening and carrying his checking account in the names of himself and his wife and affirmed the trial court's holding that an estate by the entirety had been created. The court also said that this estate would have continued only in so much of the account as had not been withdrawn by one spouse or the other. However, the court relied upon Dickson v. Jonesboro Trust Co., 154 Ark. 155, 242 S.W. 57 (1922), for this statement, and in discussing Dickson, the court in Black said that the husband in Dickson had withdrawn portions of the deposit "with the wife's consent." We think that Black and McEntire v. McEntire, 267 Ark. 169, 590 S.W.2d 241 (1979), both stand for the proposition that neither spouse can destroy the estate by the entirety without the other's consent, although as far as the bank is concerned payment to either relieves the bank of liability. See also Union & Mercantile Trust Co. v. Hudson, supra, for the rule that withdrawal of the funds by one tenant does not mean that tenant thereby acquires sole ownership as against the other.

While the withdrawal of the funds by one spouse without the consent of the other is not involved in the present case, we think it important to note that the winner of the race to the bank does not determine ownership of the money withdrawn except in so far as the bank's liability is concerned. This is made clear by McGuire v. Benton, 232 Ark. 1008, 342 S.W.2d 77 (1961), where the trial court held that all the money originally in a joint savings account was estate-by-the-entirety property even though the wife had withdrawn most of it by the time of the final hearing in the case. As stated, this issue is not before us in the present case but we do have to decide whether the trial court was correct in holding that $12,500.00 of the money represented by the certificates of deposit belonged to the appellee as his separate property.

The ownership of property obviously depends upon the facts in each case. The rationale involved has not always been the same but a careful reading of our cases discloses that under the facts they have been decided correctly and in accordance with the above case law. For example, in Hayse v. Hayse, 4 Ark.App. 160-B, 630 S.W.2d 48 (1982), we held that the chancellor correctly found that the wife had not destroyed the nonmarital status of her inheritance. In that case she had purchased a...