Tipton v. Tipton , 2017 Ark. App. 601 ( 2017 )

Cite as 2017 Ark. App. 601
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-17-266
MICHAEL WAYLAND TIPTON, SR. Opinion Delivered November 8, 2017
APPELLANT
APPEAL FROM THE PERRY
COUNTY CIRCUIT COURT
V. [NO. 53DR-15-72]
HONORABLE CATHLEEN V.
COMPTON, JUDGE
PAMELIA KAY TIPTON
APPELLEE REVERSED AND REMANDED
PHILLIP T. WHITEAKER, Judge
The Perry County Circuit Court granted appellee Pamelia Tipton’s complaint for
divorce. In the divorce decree, the court ordered an unequal division of marital property. On
appeal, appellant Michael Tipton argues that the circuit court erred as a matter of law by not
considering the factors set forth in Arkansas Code Annotated section 9-12-315(a) (Repl.
2015). We agree, and we reverse and remand.1
I. Background
Pamelia and Michael were married in 1992. In 2015, Pamelia filed a complaint for
divorce, and the matter proceeded to a contested hearing. Among the issues contested were
real property interests and retirement accounts. Both parties admitted that real estate was
1
This is the second appeal in this case. The first appeal was dismissed for lack of a final,
appealable order. Tipton v. Tipton, 2016 Ark. App. 511. A final order has since been entered,
and the matter is now properly before us.
Cite as 2017 Ark. App. 601
purchased in both Pamelia and Michael’s names in 1993. In 2000, the couple conveyed the
property solely to Pamelia because of the possibility of a lien being placed on it by the Texas
Office of Child Support Enforcement.2 They later purchased a new mobile home for the
property but titled it solely in Pamelia’s name because she had better credit.
With respect to their retirement accounts, Pamelia was fully vested in her own 401(k),
which had a value at the time of trial of approximately $9,900. The evidence concerning
Michael’s retirement was less clear. Pamelia said that she believed Michael had numerous
retirement funds, including a plan from Dean’s Pickle Plant in Atkins, a plan from Deltic
Timber, and a carpenter’s annuity through a millwright’s union. Michael stated that he did
not “know anything about those accounts.” Neither Pamelia nor Michael presented the court
with any evidence of vestment or value of Michael’s alleged retirement.
At the conclusion of the trial, the circuit court ruled from the bench and appeared to
conclude that the real property was not marital property, citing Arkansas Code Annotated
section 9-12-315(b)(4), which excludes from the definition of “marital property” “property
excluded by valid agreement of the parties.” Relying on McClure v. McClure, 220 Ark. 312,
247 S.W.2d 466 (1952), the court determined that a husband is not entitled to the return of
real estate transferred to a wife during the marriage if the transfer was for the purpose of
defrauding his creditors. Accordingly, the court orally awarded the real property and the
trailer to Pamelia. The court directed that Pamelia would keep her retirement and be
2
Michael owed approximately $36,000 in child-support arrearages in Texas.
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responsible for the debt against it, and Michael was to keep his retirement accounts,
“whatever, wherever they are and whatever their value may be or become.”
The court later entered a written decree that differed from its oral announcements from
the bench. With respect to the real property, the court’s written decree stated that it
elects to make an unequal distribution of the parties’ real property because [Michael]
admitted that the mobile home was placed in the name of [Pamelia] with the aim of
keeping the home out of the hands of [Michael’s] creditors. . . . The court further finds
that based upon the testimony of both parties, this property and the mobile home are
placed in the name of [Pamelia] for the purpose of protecting same against certain
potential liabilities that would be imposed upon [Michael], and that same was done by
agreement of the parties.
The court finds and orders that the title to the mobile home and the above
described property shall be the property of [Pamelia] as shown on the purchase
agreement for the mobile home and the quitclaim deed introduced herein[.]
In addition, the court determined that Pamelia was entitled to all of her 401(k) and any other
retirement plans and that Michael was entitled to all of his retirement plans.
Michael filed a timely notice of appeal. On appeal, he argues that the circuit court
erred when it made an uneven distribution of marital assets without addressing the factors set
out in Arkansas Code Annotated section 9-12-315(a)(1).
This court reviews cases involving the division of marital property de novo. Beck v.
Beck, 2017 Ark. App. 311, at 6, 521 S.W.3d 543, 546. With respect to the division of
property in a divorce case, we review the circuit court’s findings of fact and affirm them
unless they are clearly erroneous or against the preponderance of the evidence. Skokos v.
Skokos, 344 Ark. 420, 425, 40 S.W.3d 768, 771–72 (2001). A finding is clearly erroneous
when the reviewing court, on the entire evidence, is left with the definite and firm
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conviction that a mistake has been committed. Id. at 425, 40 S.W.3d at 772. In order to
demonstrate that the circuit court’s ruling was erroneous, an appellant must show that the
circuit court abused its discretion by making a decision that was arbitrary or groundless. Id.
We give due deference to the circuit court’s superior position to determine the credibility
of witnesses and the weight to be given their testimony. Sanders v. Passmore, 2016 Ark. App.
370, at 7, 499 S.W.3d 237, 243.
III. Discussion
Although Michael raises three separate points on appeal, they each present the same
question: Did the circuit court err in making an unequal division of marital property without
appropriate consideration of the factors established in Arkansas Code Annotated section 9-
12-315(a)(1)(A)? We conclude that the circuit court erred.
Before considering the merits of Michael’s argument, however, we must address
Pamelia’s contention that the circuit court found that the property was nonmarital property
and that there was thus no need for the court to discuss the statutory factors. As noted above,
the court’s ruling from the bench seemed to indicate that the court was finding that the real
estate was not marital property. Pursuant to Arkansas Supreme Court Administrative Order
No. 2, however, an oral order announced from the bench does not become effective until
reduced to writing and filed. Baxley v. Baxley, 86 Ark. App. 200, 204, 167 S.W.3d 158, 160
(2004) (citing Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003)).
In Baxley, the circuit court ruled from the bench that the divorcing couple’s assets were
nonmarital property. Its written decree, however, made an unequal distribution of the
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couple’s property and listed the nine factors set out in section 9-12-315(a)(1)(A)(i)–(ix). This
court held that the fact that the court enumerated the statutory factors in the written order
to support an unequal distribution indicated that “despite any misstatements from the bench,
the court was treating the investment accounts as marital property.” Baxley, 86 Ark. App. at
204, 167 S.W.3d at 161. Likewise, here, the circuit court expressly stated in its written order
that it was making an unequal distribution of property, a statement that would be unnecessary
if the court considered the property to be nonmarital. We therefore conclude that the written
order, which controls over the circuit court’s oral pronouncements from the bench, found the
property to be marital property.
We thus turn to Michael’s argument that the circuit court erred in failing to consider
the section 9-12-315(a)(1)(A) factors in making its unequal distribution of marital property.
Under section 9-12-315(a)(1)(A), all marital property shall be distributed one-half to each
party unless the court finds such a division to be inequitable. In that case, the court shall make
some other division that the court deems equitable, taking into consideration a list of nine
factors:
(i) The length of the marriage;
(ii) Age, health, and station in life of the parties;
(iii) Occupation of the parties;
(iv) Amount and sources of income;
(v) Vocational skills;
(vi) Employability;
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(vii) Estate, liabilities, and needs of each party and opportunity of each for further
acquisition of capital assets and income;
(viii) Contribution of each party in acquisition, preservation, or appreciation of
marital property, including services as a homemaker; and
(ix) The federal income tax consequences of the court’s division of property.
When property is divided unequally based on those factors, “the court must state its basis and
reasons for not dividing the marital property equally between the parties, and the basis and
reasons should be recited in the order entered in the matter.” Ark. Code Ann. § 9-12-
315(a)(1)(B) (emphasis added). When a circuit court does not recite any of the statutory
reasons why an unequal distribution is equitable, reversal is required. Wadley v. Wadley, 2012
Ark. App. 208, at 7, 395 S.W.3d 411, 416; see also Watkins v. Watkins, 2012 Ark. App. 27,
388 S.W.3d 53 (In the absence of an explanation of an unequal distribution of marital assets,
the case was remanded for entry of an order that demonstrated proper consideration of the
statutory factors.).
It is plain from the circuit court’s written order on the distribution of the marital
property, set out above, that it failed to consider or recite any of these factors. We therefore
agree with Michael that the circuit court’s order distributing the marital land, marital home,
and retirement accounts3 was entered in error.
Reversed and remanded.
3
Pamelia’s retirement account was clearly marital property. She testified and introduced
documents showing that she was vested in her 401(k) plan at the time she filed for divorce.
Retirement benefits in which a person is vested at the time of the divorce are marital
property. See Womack v. Womack, 16 Ark. App. 139, 142, 698 S.W.2d 306, 308 (1985) (vested
retirement benefits not yet due and payable are marital property subject to division on divorce
when based on contributions made or services rendered during the marriage).
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ABRAMSON and GLADWIN, JJ., agree.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.
Branscum Law Offices, by: Herby Branscum, Jr., and Elizabetth Branscum Burgess, for
appellee.
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