Wes Booth v. Suzanne P. Booth

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

WES BOOTH

APPELLANT

V.

SUZANNE P. BOOTH

APPELLEE

CA01-479

June 5, 2002

APPEAL FROM UNION COUNTY CHANCERY COURT [E-99-513-3]

HON. EDWIN A. KEATON,

JUDGE

SUBSTITUTED OPINION

AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON CROSS-APPEAL

The parties in this chancery case were married in 1997. Appellee filed for divorce on grounds of general indignities and, after a hearing, a decree of divorce was entered October 6, 2000. From that decision, comes this appeal.

For reversal, appellant contends that the chancellor erred in calculating the parties' respective interests in real property, a modular home, and the proceeds thereof; in failing to give appellant credit for premarital property traded in when the parties purchased a boat, motor, and trailer during the marriage; in finding that a piano purchased during the marriage was a gift to appellee not subject to division; in finding that a freezer was appellee's premarital property; and in awarding attorney's fees to appellee. On cross-appeal, appelleecontends that the trial court erred in finding that a Jeep was appellant's premarital property not subject to distribution. We affirm as modified.

With respect to the division of property in a divorce case, we review the chancellor'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, 40 S.W.3d 768 (2001). We give due deference to the chancellor's superior position to determine the credibility of witnesses and the weight to be given their testimony. Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000). In order to demonstrate that the chancellor's ruling was erroneous, an appellant must show that the chancellor abused his discretion by making a decision that was arbitrary or groundless. Skokos v. Skokos, supra.

Appellant first contends that the chancellor erred in calculating the parties' respective interests in real property, a modular home, and the proceeds thereof. The parties agree that appellant owned the real property before the marriage, and that the parties jointly purchased a mobile home and had it moved onto appellant's property. Appellant does not dispute the chancellor's division of the parties' respective interest in the mobile home, but argues that the chancellor erred by failing to credit him for the value of the land on which the mobile home was located. We are unable to address this issue, however, because the abstract before us does not contain evidence of the value of the land prior to the marriage. It is the appellant's burden to produce a record exhibiting prejudicial error. Hadden v. Hadden, 320

Ark. 480, 897 S.W.2d 568 (1995). In light of the evidence that appellee spent substantial sums on landscaping and other improvements to the real estate, we cannot, in the absence of evidence of the real estate's premarital value, say that appellant has met his burden of demonstrating prejudicial error, and we decline to reverse on this point. See id.

Next, appellant contends that the chancellor erred in failing to give him credit for premarital property traded in when the parties purchased a boat, motor, and trailer during the marriage. Appellant asserted at trial that, when he purchased these items, he traded in an outboard motor he owned prior to the marriage. However, this testimony was uncorroborated and undocumented. The question, therefore, is one of credibility, and we defer to the chancellor's determination on this issue. Hunt v. Hunt, supra.

Appellant also argues that the chancellor erred in failing to give him credit regarding a loan from First National Bank of El Dorado, which purportedly was used to purchase a boat, motor, and trailer. It appears from the record that the bank did, in fact, make a loan to appellant. Whether or not the proceeds of this loan were actually applied to the purchase of the boat, motor, and trailer is less clear. Although appellant testified that he did use the proceeds of the loan for this purchase, he admitted that there was no loan for which the boat, motor, and trailer acted as security. Furthermore, appellee testified that a considerable portion of the purchase price of these items was obtained from a large commission she had earned. In light of the lack of documentation and the notable absence of a security interest on an asserted purchase-money loan for personal property costing in excess of thirty-five thousand dollars, this question, too, depends on the credibility of the witnesses. Thechancellor could properly have found that appellant failed to prove that the loan proceeds were actually applied to the purchase of the boat, motor, and trailer; consequently, we cannot say that the chancellor erred in failing to give appellant a credit from the sale proceeds of the boat, motor, and trailer in the amount of the loan. See id.

Appellant next asserts that the chancellor erred in finding that a piano purchased during the marriage was a gift to appellee not subject to division. In order to establish a completed inter vivos gift, there must be clear and convincing evidence that there was an actual delivery of the subject matter of the gift with a clear intent to make an immediate present and final gift beyond recall accompanied with an unconditional release of future dominion and control by the donor over the property delivered. Hayse v. Hayse, 4 Ark. App. 160-B, 630 S.W.2d 48 (1982). Here, there was evidence at trial that appellee owned a piano prior to the marriage but, because appellant would not move it into the mobile home, her piano was sold. There was also evidence that appellant did not himself play the piano and had no intention of learning how to play the piano. In addition, there was evidence that appellant arranged a surprise for appellee by purchasing a new piano and arranging to have it delivered while appellee was home. Finally, there was evidence that, after a piano performance by appellee, appellant stated that buying the piano for her was the best thing he had ever done. Under these circumstances, we think that the chancellor could properly find that appellant's intent was to make an immediate and final gift of the piano when it was delivered to appellee.

Next, appellant asserts that the chancellor erred in finding that a freezer was appellee's premarital property. We agree. Appellee concedes that the freezer does, in fact, belong to appellant, and we therefore modify the chancellor's decree to reflect this concession.

Finally, appellant contends that the chancellor erred in awarding attorney's fees to appellee. We disagree. There was evidence from which the chancellor could properly have found that appellant expressly stated that he would see to it that appellee's legal bills were excessively high. Attorney's fees in divorce and support cases are not awarded as a matter of right, but rest within the chancellor's discretion and will not be disturbed unless that discretion is abused. Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983). Upon examining the case as a whole, we cannot say that the chancellor abused his discretion in awarding attorney's fees to appellee. Id.

On cross-appeal, appellee contends that the chancellor erred in finding that a Jeep purchased subsequent to the marriage was purchased with non-marital funds. We do not agree. Appellant testified that he bought the Jeep with the proceeds of the sale of a mobile home that he owned prior to the marriage. Under Arkansas law, property acquired in exchange for property acquired prior to the marriage is excluded from the definition of marital property. Cate v. Cate, 35 Ark. App. 79, 812 S.W.2d 697 (1991). We cannot say that the chancellor erred in finding appellant's testimony regarding this issue to be credible.

Affirmed as modified on appeal; affirmed on cross-appeal.

Jennings and Vaught, JJ., agree.