Myrick v. Myrick

• Court: Arkansas Supreme Court
• Writing for the Court: W.H. "DUB" ARNOLD, Justice
• Citation: Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (Ark. 1999)
• Decision Date: 21 October 1999
• Docket Number: No. 99-247.,99-247.
• Parties: Kathryn Ann MYRICK, v. Richard Dale MYRICK.

2 S.W.3d 60

339 Ark. 1

Kathryn Ann MYRICK, v. Richard Dale MYRICK.

No. 99-247.

Supreme Court of Arkansas.

October 21, 1999.

COPYRIGHT MATERIAL OMITTED

D. Scott Hickam, Hot Springs, for appellant.

Hobbs, Garnett, Naramore & Strause, P.A., by: Ronald G. Naramore, Little Rock, for appellee.

W.H. "DUB" ARNOLD, Chief Justice.

This case is before us on petition for review from the Arkansas Court of Appeals. The appeal is brought from a divorce decree entered by the Garland County Chancery Court. The primary issue is whether the chancellor incorrectly divided certain assets between appellant and appellee. Other issues are raised concerning the chancellor's award of alimony and his failure to rule on appellant's request for attorney's fees and a portion of appellee's pension.

The Court of Appeals found no error and affirmed the trial court in an unpublished opinion, delivered on February 10, 1999. It is well settled that upon a petition for review, we consider the case as though it were originally filed in this Court. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999); ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998); Frette v. City of Spring dale, 331 Ark. 103, 959 S.W.2d 734 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998).

Appellant and appellee were married in 1982 when appellant was seventeen years old and appellee was twenty-one. At the time of the marriage, appellant's mother, Martha Pearson, was the custodian of appellant's trust fund. The fund consisted primarily of stock from an old family business and monetary contributions made over the years by Mrs. Pearson. Shortly after the marriage, appellant asked her mother to turn the trust fund over to her. Mrs. Pearson reluctantly complied. Although the details are not clear, it appears the fund was converted to an account at the A.G. Edwards office in Gulfport, Mississippi, where Mrs. Pearson resided. The value of the account was approximately $330,000.

After the trust fund was converted, it was transferred to the A.G. Edwards office in Hot Springs, where appellant and appellee resided. From the date the account arrived in Hot Springs, if not before, it bore the names of appellant and appellee, jointly.

In August of 1984, Mrs. Pearson decided to purchase a home in Gulfport. She obtained the money to do so by selling approximately twenty-four acres of lake-front property in Hot Springs to appellant and appellee, jointly, for $150,000. Appellant and appellee used $150,000 from the A.G. Edwards account to make the purchase. They put the money into their joint checking account, then wrote a check to Mrs. Pearson. A warranty deed was duly executed conveying the property to appellant and appellee as husband and wife.

After buying the lake-front acreage, appellant and appellee lived in a home on the property. Later, they constructed a new home using $100,000 to $125,000 from the A.G. Edwards account. The old home was converted to three apartments, which were rented out. In 1995, the parties constructed a four-unit apartment complex on the land. To finance the construction, they took a mortgage on their new home. Later, they consolidated other debts into that mortgage, bringing its total to approximately $140,000.

On March 6, 1996, appellant filed a complaint for divorce. She asked the court to make an equal division of the parties' real and personal property in light of the inheritance and gifts given to her by her family. By amended complaint dated October 14, 1996, appellant alleged that appellee had taken control of her estate through coercion, fraud, duress, and undue influence. Several months later, appellee filed a counterclaim for divorce.

Trial was held in the case on July 9 and 10 and October 15 and 16, 1997. After hearing the testimony of witnesses, viewing the documentary evidence, and receiving letter briefs from the parties, the chancellor awarded appellant a divorce. He found that the lake-front acreage was marital property; he dissolved the tenancy by the entirety to a tenancy in common, pursuant to Ark.Code Ann. § 9-12-317 (Repl. 1998), and ordered the property sold, with the net proceeds to be divided equally between the parties. However, he provided that appellant could retain use of the marital residence until the youngest of her four children either turned eighteen or graduated from high school, whichever occurs later.

The chancellor also found that the funds remaining in the A.G. Edwards account, approximately $87,000, were marital property to be divided equally. Finally, the chancellor ordered appellee to pay appellant temporary rehabilitative alimony in the form of tuition, books, fees, and expenses at an accredited college, vocational-technical school, or trade school until appellant completes a course of study or for five years, whichever is less. Despite the fact that evidence was presented at trial concerning appellee's pension and the amount appellant spent on attorney's fees, the chancellor made no ruling on these matters. Appellant now brings the instant appeal.

On appeal, appellant asserts the following:

I. The lower court erred by failing to rule upon a division of the appellee's pension plan and the appellant's request for an award of attorney's fees;

II. The lower court erred by failing to award the appellant certain property as her separate estate or by making an unequal division;

III. The lower court erred by the manner and nature of its temporary rehabilitative alimony award.

I. Whether the lower court erred by failing to rule upon a division of the appellee's pension plan and the appellant's request for an award of attorney's fees.

The appellant requested a division of property rights in her complaint for divorce, which included a division of appellee's pension plan. Despite the fact that evidence was presented at trial concerning appellee's pension, the chancellor made no ruling on this matter. The appellee agrees that the court should have divided his pension as of the date of the divorce; he further does not quarrel with appellant's calculation of her portion of that benefit, which, when utilizing the summary of benefits formula and appellee's actual contracts, would equal one-half of appellee's monthly benefit of $149.49, or $74.75 per month to appellant. However, appellant's failure to obtain a ruling on this issue, as well as her request for an award of attorney's fees, precludes us from addressing these matters on appeal.

It is well settled that this Court will not address an argument where the abstract does not show that it was made in the trial court, Webber v. Webber, 331 Ark. 395, 400, 962 S.W.2d 345 (1998), and ruled upon there. Sanders v. Bradley County Human Servs. Public Facility Bd., 330 Ark. 675, 683, 956 S.W.2d 187, 191 (1997); see also Skokos v. Skokos, 332 Ark. 520, 968 S.W.2d 26 (1998). Therefore, we hold that the issues upon which the trial court failed to make a ruling were not preserved for appellate review.

II. Whether the lower court erred by failing to award the appellant certain property as her separate estate or by making an unequal division.

Appellant contends that although the A.G. Edwards account was a joint one in both parties' names, apparently from its inception, she is entitled to the account and the real property purchased with the money from the account as her separate nonmarital estate. Appellant makes this argument in spite of the fact that the account remained a joint account throughout the parties' marriage and was used by the parties to acquire certain real estate from appellant's mother in 1984, two years after appellant and appellee's marriage. Appellant contends that the placing of her inheritance in a joint account with appellee and buying the real estate in joint names were not voluntary acts, but ones occasioned by coercion and duress on the part of the appellee.

We have held that once one spouse has shown that a confidential relationship existed with the other, and that the other was the dominant party in the relationship, it is presumed that a transfer of property from the former to the latter was invalid due to coercion and undue influence. In such a case, the spouse to whom the property was transferred bears the burden of rebutting the presumption by producing evidence showing that the transfers of property were freely and voluntarily executed. Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973); see also Lyons v. Lyons, 13 Ark.App. 63, 679 S.W.2d 811 (1984); Chrestman v. Chrestman, 4 Ark. App. 281, 630 S.W.2d 60 (1982); Marshall v. Marshall, 271 Ark. 116, 607 S.W.2d 90 (Ark.App.1980).

Appellant contends that, in light of the above-mentioned line of cases, as well as the fact that the trial court found appellee to be the dominant party in the relationship, the court then erred by leaving the burden of proving the involuntariness of the transfers with her, rather than requiring appellee, as the dominant party, to meet his burden of proving that the transfers were voluntary. Appellant's argument is misguided for two reasons. First, the trial court, in its December 4, 1997, letter opinion, stated that appellee "appeared dominant"; the court did not go so far as to make a finding in this regard.

Second, while Dunn and its progeny do seem to indicate that the presumption of invalidity is immediately invoked upon a mere showing of dominance on one party's part, when critically read, the requirement of proof of dominance is actually a bigger hurdle to overcome than the cases cited by appellant seem to indicate. Burns, Guardian v. Lucich, 6 Ark.App. 37, 638 S.W.2d 263 (1982), for example, better articulates the burden that appellant, as the purported donor, must overcome before the burden to prove voluntariness would shift to appellee, as the purported donee. Burns held that it is not the mere existence of a relationship of confidence which causes the gift to be deemed prima facie void, but only when the...