Potter v. Potter

• Decision Date: 05 July 1983
• Docket Number: No. 82-260,82-260
• Citation: 280 Ark. 38,655 S.W.2d 382
• Parties: David J. POTTER, Appellant, v. Betty POTTER, Appellee.
• Court: Arkansas Supreme Court

Page 382

655 S.W.2d 382

280 Ark. 38

David J. POTTER, Appellant, v. Betty POTTER, Appellee.

No. 82-260.

Supreme Court of Arkansas.

July 5, 1983.

Rehearing Denied Sept. 19, 1983.

Mitchell, Williams, Selig, Jackson & Tucker by Jim Guy Tucker, Little Rock, for appellant.

Smith, Jernigan & Smith by Robert D. Smith, III and H. Vann Smith, Little Rock, for appellee.

PURTLE, Justice.

After a long and complicated trial the chancellor granted a divorce to the appellee and dismissed appellant's counterclaim for divorce. The court also divided the property in a manner which is not satisfactory to either party. Several post-trial motions for modification and/or clarification were filed by the parties. The last motion was disposed of on April 6, 1982, and on April 9, 1982, the appellant gave notice of appeal. He argues 10 grounds for reversal. The different points argued will be paraphrased and set out below. The decree will be affirmed with certain modifications.

The parties to this action were married April 9, 1971. Three children issued from the marriage. Final separation occurred in June of 1980. Appellant is an attorney in Texarkana and appellee is a school teacher. The present action was initiated by the appellee when she filed her complaint for divorce on April 17, 1980. The complaint was subsequently amended and the case was presented to the chancellor (sitting by exchange) on the merits of the different parties. The decree granted custody of the three minor children to the appellee subject to liberal and reasonable visitation rights being vested in the appellant. The decree also ordered the appellant to pay $650 per month child support and denied any alimony to the appellee. During the hearing on December 8, 1980, wherein the appellant's motion for temporary relief was heard the court discovered there was an agreement between the parties that required cessation of acquisition of marital property and debts as of June 30, 1980. It was agreed to between the parties that June 30, 1980 would be the date used for accounting of properties and debt at the final hearing. The court indicated the agreement between the parties would be recognized and approved by the court.

The long and complicated facts relating to the disposition will be set out as the points are discussed.

I

THE COURT ERRED IN AWARDING A DIVORCE TO THE APPELLEE INSTEAD OF THE APPELLANT.

Each of the parties denied the existence of any grounds for divorce on the other party's part. On the other hand each claimed they were the injured party and were entitled to a divorce. In the present case we look only to see if there was sufficient evidence to support the court's decree granting the appellee a divorce. The appellee testified to grounds which would warrant granting her a divorce. The question presented is whether the appellee's allegations were corroborated. We have held in the past that when both parties sue for divorce, slight corroboration will support a chancellor's granting a divorce to one of the parties. In Lockley v. Lockley, 257 Ark. 603, 519 S.W.2d 52 (1975), this court made the statement:

Of course, we have said numerous times, so numerous as to require no citation of authority, that corroboration in contested divorces need only be slight.

One witness testified that the appellant frequently kidded and joked with the appellee and that this appeared to embarrass her. The witness stated that appellee's mood changed for the worse whenever appellant appeared. Appellee testified that on one occasion appellant, while at the country club, teased her about her inability to keep a check book balanced. Another witness stated that appellant made remarks with other people present that he was going to give appellee a birthday party and invite maladjusteds and misfits in town to the party. There was also evidence of a number of heated arguments between the two. Therefore, we feel there is the necessary corroboration and in view of the fact that each party sought a divorce we do not find prejudicial error in the chancellor's awarding a divorce to the appellee.

II

THE TRIAL COURT ERRED IN FAILING TO ADJUDICATE MARITAL PROPERTY AND DEBTS AS OF JUNE 30, 1980.

The appellant argues that an agreement between the parties whereby marital property and debts would be determined as they existed on June 30, 1980 was controlling but not recognized by the chancellor at the final hearing. During this period of time the appellee incurred debts in appellant's name in the amount of $16,786.68. These debts included purchases and payments on behalf of both parties and the children. After December 8, 1980 (the date of the hearing on temporary support and allowances) the court entered a temporary order requiring appellant to pay the appellee $850 per month. During this time the appellee was allowed to live in the home at 1905 East 18th in Texarkana. Matters heard on December 8, 1980 were considered in the final hearing in this case. There was no dispute about the amount of the expenditures during the period of June 30 through December 8, 1980. The record clearly reveals that no order had been issued by the court prior to December 8, 1980. During the period of time between June 30 and December 8, 1980, the appellee received $2,250 by check from the appellant. She also incurred $512 for part of the expense of a vacation which she took in Florida. During this same period of time payments on the home were made in the amount of $2,302.68. Some of the other expenses incurred during this time were paid by the appellant in order to protect his credit. The expenditures included ordinary expenses of running a household, an automobile and keeping up membership at the country club. During this five and one-half month period the appellant paid no alimony or support as such. Considering the foregoing, we think the chancellor erred in not allowing appellant credit for the $2,250 cash advanced to the appellee during this time as well as the $512 she spent in Florida. He should also have received credit for one-half of the house payments which amount totals $1,151.34. The credits allowable to him would thus come to $3,913.34.

III

THE COURT ERRED IN AWARDING APPELLEE A GRAND PIANO AS HER SEPARATE PROPERTY.

A grand piano, which appellant purchased for $6,000, was picked out by him and the children and transported to the home on Christmas Eve, 1979. Certainly these circumstances are in keeping with the idea that the piano was a gift to appellee. The trial court heard the parties and we generally adhere to its decision in the matter of credibility of witnesses. ARCP, Rule 52. We do this because the trial court is in a better position than this court to evaluate the credibility of the witnesses. It is not error to award the piano to the appellee as a gift from the appellant thereby creating separate property.

IV

THE COURT ERRED IN DETERMINING THAT CERTAIN FEES WHICH THE APPELLANT HAD EARNED, WERE MARITAL PROPERTY.

Several fees are involved in this controversy. The first one is the fee in the Mills case. ¹ The appellant had done practically all of the work on this fee prior to the time of his marriage to the appellant on April 9, 1971. The fee in the Mills case was contingent and was not payable until after the Arkansas Supreme Court handed down a decision on May 17, 1971. The fee and reimbursement costs amounted to $19,345.71. A portion of these funds was used to purchase 2.066 acres of land, whereon the parties subsequently constructed their dwelling house, the rest going to the purchase of a one-half interest in a 5.8 acre tract. Although the funds were traceable, the trial court held that the fee did not accrue until after the marriage. He then held that these two parcels of land were marital assets.

Other fees involved in this controversy (Right, Hodges, McMillin-Burkett and Cameron ) were earned during the marriage but were set up in trust funds in order to be paid out over a period of time. The court also held that these other fees were marital property and should be divided between parties. In addition there was an individual retirement account in appellant's name, which had been created during the marriage. The court also held this fund to be marital property.

It is appellant's contention that either the Mills fee or the other fees and the IRA should be treated as his separate property. Ark.Stat.Ann. § 34-1214 (Supp.1981) controls the division of the property in this case. The statute states that all marital property shall be divided equally unless the court finds such a division to be inequitable, in which case the court shall make an equitable distribution. All other property shall be returned to the party who owned it prior to marriage unless the court shall make some other division that the court deems equitable. If the court fails to return the property to the party who owned it at the time of the marriage it must state in writing its basis and reasons for not doing so. Property is not deemed marital if it is acquired by gift, bequest, devise or descent; or is acquired in exchange for such property. Also, property is excluded from being classified as marital property if the parties exclude it by valid agreement. Property acquired by either spouse during the marriage carries the presumption of being marital property. The date of the acquisition is the key factor. Property acquired separately or jointly remains as such and must be divided accordingly at the time of divorce, unless the court finds it is not equitable. In some community property states there is a rebuttable presumption that property acquired during the marriage is community property even though it is taken solely in the name of one of the parties. Thomasset v. Thomasset, 122 Cal.App.2d 116, 264 P.2d 626 (1954); Fountain v. Maxim, 210 Cal. 48, 290 P. 576 (1930) Thomasset held that separate funds remained separate unless it became impossible to trace the source of the funds. This is true even if...