McIntire v. McIntire, CA

• Decision Date: 24 September 1980
• Docket Number: No. CA,CA
• Citation: 270 Ark. 381,605 S.W.2d 474
• Parties: Lillian McINTIRE, Appellant, v. Donald O. McINTIRE, Appellee. 80-153.
• Court: Arkansas Court of Appeals

Page 474

605 S.W.2d 474

270 Ark. 381

Lillian McINTIRE, Appellant, v. Donald O. McINTIRE, Appellee.

No. CA 80-153.

Court of Appeals of Arkansas.

Sept. 24, 1980.

Highsmith, Gregg, Hart & Farris, Batesville, for appellant.

Harkey, Walmsley & Belew by Bill H. Walmsley, Batesville, for appellee.

PILKINTON, Judge.

This is an annulment case. A decree was entered declaring the purported marriage of these parties void ab initio pursuant to Ark.Stat.Ann. § 55-108 (Repl.1971) because appellee had a prior living wife from whom he had not been divorced at the time he undertook to enter into marriage with appellant. There is no appeal from that part of the decree annulling the marriage. This appeal comes from the action of the trial court denying the wife's petition seeking reformation of a deed to certain land in Independence County, Arkansas, and the court's refusal to declare a constructive trust in her favor on the real property.

Lillian Bennett, a widow since 1964, met Donald McIntire in May of 1971 at Albuquerque, New Mexico, and the parties began living together in December of 1971. They were married on June 21, 1972, in Albuquerque, New Mexico. At the time of the purported marriage her property consisted of $30,000 in a savings account, together with $500 in a checking account and a home in Albuquerque, New Mexico, which was sold after the marriage for a net return of $18,619.12. Lillian Bennett also owned furnishings from a six-room house, a 1962 Lark automobile, and some tools which had formerly belonged to her first husband. At the time of the marriage of the parties Donald McIntire had six horses, a truck, and $750.00.

Just before their marriage, on June 8, 1972, the parties contracted to purchase what is described in the proof as 208 acres of real property in Independence County, Arkansas. The total purchase price was $20,000. On June 30, 1972, Lillian made the down payment of $6,000 out of her Albuquerque Federal Savings account. The balance of $14,000 was financed with annual payments of $1,000. Title to the real property was taken in the name of both parties as husband and wife. After the marriage, Donald moved to Arkansas to live on the land they had purchased. The parties also bought a mobile home, a pickup truck, a furniture moving van, materials for a garage, an air conditioner, welder, tractor, cattle and goats, and some other personal property in connection with the farm. Lillian McIntire moved to the Independence County farm in December of 1972 after selling her home in Albuquerque, New Mexico. Donald testified that he stayed on the farm full time and built a 38 X 22 foot garage; and that during 1972 he also constructed a pond and a farm road. During the course of the marriage Donald McIntire claims he continued to make improvements on the farm. He testified that he seeded the woods and re-seeded the pulpwood areas. Mr. McIntire claims to have fenced forty acres, and repaired the fences on the remaining acreage. The evidence shows that thoroughbred horses were kept on the farm until the spring of 1979. The record seems to indicate that for all these improvements, Donald furnished the labor and Lillian paid the expenses until the end of 1973. Lillian was the bookkeeper for their operations through 1975, when their joint checking account was terminated. After this, Lillian kept a separate account.

The evidence shows further that for the years 1973 through 1975, Donald McIntire cut timber on the property and sold it for pulpwood. This money was also used to pay expenses on the farm. Land payments on the 208 acres of land from 1973 until 1975 were made by Mr. McIntire obtaining loans from a bank using personal property the parties had purchased as collateral. Monthly payments on these side loans were made out of the joint checking account of the parties through 1975. In 1976 the land payment was made by Lillian with her mother's help. Lillian McIntire's parents lived with the parties in 1976 and, after Mrs. McIntire's father's death, the mother continued to remain on the property. Through Social Security checks and the sale of a home, Mrs. McIntire's parents contributed a total of $13,479.59 toward the living expenses of the parties. Other living expenses were paid from the proceeds of the certain personal property which they had purchased at the time of the marriage.

The record further shows that on September 27, 1976, the parties made an additional loan in the amount of $10,000 which Mr. McIntire used to open a television repair shop in Batesville, Arkansas, and for other business expense purposes.

The record reveals that Donald McIntire had been married six times before he met Lillian. In the late fall of 1976, after his marriage to Lillian, Mr. McIntire was served with papers concerning the support of a child. This child was in the custody of his previous wife, Diane McIntire, in another state. Mr. McIntire testified that Diane had told him that their divorce was final. He later had the records searched and, being unable to locate a divorce decree, Mr. McIntire initiated proceedings and a divorce was granted to him by the Chancery Court of Independence County, Arkansas. This decree terminated the marriage then existing between Donald McIntire and Robbie Diane McIntire, his sixth wife. The decree was shown to Lillian McIntire in 1978 and it was at this point that she definitely knew Donald had not been divorced from his previous wife until February 11, 1977. The record also reveals that Lillian continued to live with Donald until July 11, 1979, when they separated. Lillian then brought this action for annulment, constructive trust, and reformation of the deed; and sought a lien on the real property to recover funds she had invested in the property.

After the case was tried, the chancellor wrote a memorandum opinion; and, later entered a decree finding, among other things:

That at the time these parties entered into their purported marriage relationship they agreed to pool their assets and thereafter own their assets jointly and to share equally all profits derived from their future business ventures; that each party entered into such relationship freely and without any undue influence and without being subject to any fraud exercised by the other party.

That the plaintiff's petition for the reformation of the warranty deed recorded at Book B-10, Pages 179-180 of the Independence County Deed Records should be denied and the parties should hold title to the land described in said deed as joint tenants with right of survivorship; likewise, all other assets of the parties, including the TV business known as "Don's TV" located in Batesville, Arkansas, and the horses, and all profits and issue therefrom, should be owned by the parties as joint tenants.

That the plaintiff's request that a constructive trust should be imposed on all assets owned by the defendant in his name alone should be granted to the end that he shall be deemed to hold title to all property held in his name alone as trustee for the benefit of the plaintiff and the defendant jointly.

That all assets owned by the parties are subject to partition at any time upon the request of either party.

That each party shall faithfully account to the other party for one-half of any profits derived from any of the jointly owned assets or assets held in trust by the defendant.

That each party shall be enjoined from converting any of the jointly owned assets or assets held in trust to his or her own personal use, or any profit from such property, or in any manner attempting to conceal any assets or income therefrom from the other party pending a partition of such assets or a mutually agreed disposition of such assets.

Appellant first argues that the decree of the chancery court is against the preponderance of the evidence. The true test on appeal, however, is whether the decree is clearly against the preponderance of the evidence. Rule 52, Arkansas Rules of Civil Procedure. The chancellor, in passing on the disputed facts and applying the law to his findings said in his memorandum opinion:

As to the property division, this seems very similar in my mind to a situation where two partners enter into a speculative business venture which turns out not to be very profitable and then one partner wants to, in essence, cancel the whole deal and be put back in the position that he was in before the venture began. Of course, such action is not proper if both partners wilfully entered into the business transaction and neither exercised any fraud to induce the other into the transaction.

In this case I find that the evidence preponderates in favor of a finding that these parties wilfully undertook to enter into a marriage that each thought was valid when entered into and that they both wilfully entered into the speculative venture of attempting to establish and run a horse breeding and racing operation. The idea was for the plaintiff to furnish the money and the defendant to furnish the labor and expertise to establish and run the venture. It is true that the plaintiff invested approximately $45,000.00 of her money in the venture while the defendant only invested some $4,600.00 in the venture which consisted of money he earned from cutting pulpwood and repairing televisions after he moved to Arkansas, however, he did invest a great deal of time and effort in the venture.

The central issue pertaining to title to the farm is whether at the time the farm was purchased the plaintiff undertook to make a gift of one-half interest in that farm to the defendant. I find that she did. I find that the essence of their agreement was that she would pay the down payment and that the subsequent payments would be paid from the profits from the farm operation (which, of course, did not materialize) and that the parties would share equally in the ownership and profits from the venture.

I do not find that the plaintiff was misled or defrauded concerning...