Wanda Jones v. Charles Jones

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION II

WANDA JONES

APPELLANT

V.

CHARLES JONES

APPELLEE

CA01-56

SEPTEMBER 26, 2001

APPEAL FROM THE MONTGOMERY COUNTY CHANCERY COURT

[NO. E1997-83]

HONORABLE GAYLE K. FORD,

CHANCELLOR

AFFIRMED

Appellant, Wanda Jones, appeals three findings of the trial court regarding the division of the parties property in a divorce proceeding. We find no error in the chancellor's decision and affirm.

Appellant asserts three points of error: (1) that the trial court erred in not awarding appellant any amount for the assets contained in appellee's business; (2) that the trial court erred in not awarding appellant any amount for the payment of the mortgage of the parties' residence for seventeen years or for alleged improvements made during the course of the marriage; and (3) that the trial court abused its discretion when it failed to address the issue of the whole life insurance policy acquired during the marriage.

Wanda and Charlie Jones were married on February 8, 1981. Prior to the marriage, Mr. Jones had begun a construction and heavy equipment business as a sole proprietor. At the time of the

marriage, he owned a backhoe, a Low-Boy trailer, mower, bushhog, and various items of smallerequipment. During the course of the marriage, he replaced worn out items in the regular course of business. At least some of the equipment secured a note for financing the purchase of some replacement equipment. The business was his only means of support, and it owed $31,500 in taxes at the time of the hearing. Testimony indicated that although income would vary, a typical year's income would be about $18,000.

The marital residence was owned by appellee prior to his marriage to appellant and was titled in the name of appellee and his deceased wife. There was no evidence that appellant invested any of her separate property or funds into the marital residence. The mortgage payment on the home is $125, less than rent or mortgage on an equivalent home. Conflicting testimony, without supporting documentation, was presented by appellant and appellee concerning the nature and costs of improvements and maintenance on the property. One source of funds for changes to the property was identified as insurance proceeds from two fires that occurred while appellant was using the kitchen.

Chancery cases are reviewed de novo, and the chancellor's findings will not be disturbed unless they are clearly erroneous or clearly against the preponderance of the evidence. Crismon v. Crismon, 72 Ark. App. 116, 34 S.W.3d 763 (2000)(citing O'Neal v. O'Neal, 55 Ark. App. 57, 929 S.W.2d 725 (1996)). The overriding purpose of our property division statute is to enable the court to make a division that is fair and equitable under the circumstances. Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986); see also Ark. Code Ann. § 9-12-315(a)(2) (Repl. 1998).

The judge in the case at bar found that both the business property and the marital home, together with the increases in value, were non-marital property. In his letter to counsel explaining his decision, the judge stated that there was no evidence of any agreement to place the name of Mrs. Jones on the title. The judge also found that it was speculative to determine a particular value of anyimprovements, commenting that it was "somewhat of a guess if there were substantial improvements or replacements" at all. A review of the abstract supports the judge's observations. Appellant simply failed to meet her burden of proof concerning any improvements or an increase in value. See eg., Flucht v. Villareal, 28 Ark.App. 1, 770 S.W.2d 187 (1989).

Neither can we say that the judge abused his discretion by not awarding appellant more of the non-marital property. The business was in debt for bank notes and taxes and was the only source of income for appellee to be able to repay that debt, and to pay appellant temporary support, the value of other real estate, and attorney fees. Because the court did not divide the non-marital property, the judge was not required to set forth the factors listed in Arkansas Code Annotated section 9-12-315(a)(2) (Repl. 1998). However, a review of those factors supports our conclusion that the judge's decision was not clearly erroneous.

Appellant's final argument is that the judge abused his discretion by failing to address the issue of the whole life insurance policy acquired by appellee during the marriage. The abstract contains no ruling on that issue and issues upon which the trial court failed to make a ruling are not preserved for appellate review. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999).

Accordingly, we affirm.

Jennings, J., and Hays, S.J., agree.