Charles F. Burkett v. Martha A. Burkett

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CA02-587

April 30, 2003

CHARLES F. BURKETT AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[DV01-688]

V. HON. ALICE S. GRAY, JUDGE

MARTHA A. BURKETT

APPELLEE AFFIRMED

This appeal arose from a decree of divorce in Pulaski County Circuit Court. Charles F. Burkett contends that the trial court erred in (1) awarding appellee, Martha A. Burkett, fifty percent of his civil-service retirement because such award was clearly contrary to the preponderance of the evidence; (2) entering a decree ordering each party to pay one-half of the $1,738 owed to the Internal Revenue Service because the trial court found that each party should pay one-half of the original tax debt; and (3) entering a decree that omitted the requirement, ordered from the bench, that appellee notify appellant within seven days of settling her pending personal injury claims. We affirm.

The parties generally agreed to an uncontested divorce after a long-term marriage, but several questions pertaining to property and liability division remained in dispute. Amongthose relevant for appeal are the issues of certain of appellant's retirement funds, some tax debt, and a potential future personal-injury award or settlement concerning automobile accidents to which appellee was a party.

Procedurally, this case involved three separate hearings and a final divorce order, filed February 20, 2002. The first hearing took place on May 24, 2001, when appellant testified that he served on active military duty from August 1963 to August 1967, in fact, one day short of four complete years. The parties did not marry until 1968. However, appellant's civil service retirement benefits are based on his total service of fifteen years, seven months, and eighteen days. The total time period thus includes eleven years, seven months, and nineteen days of civil service, performed during appellant's marriage, and three years, eleven months, and twenty-nine days of military service, allegedly performed before appellant's marriage. After various testimony, the trial court asked whether there was any reason to divide appellant's retirement other than the normal way. Appellant stated that his only problem was that "he is disabled." At the conclusion of the May 24 hearing, the trial court asked appellant whether he was contending that the civil-service retirement was for disability. Appellant responded that he was contending that the civil-service retirement was for permanent disability. The trial court reacted by offering the choice of a disposition based on the evidence already presented or allowing a second hearing on the issue of whether appellant's civil-service retirement was disability pay. A second hearing date was set, specifically for disposition of the retirement benefits issue.

On October 29, 2001, the second hearing took place. Appellant contended then thathis civil-service retirement was based on disability and should be excluded from an equal division on that basis. At that time, a civilian employee of the Arkansas National Guard testified regarding the disability requirements for appellant's civil-service retirement from his civilian position with the Arkansas National Guard. She testified that appellant's civil-service retirement was based on his involuntary separation from the military for medical reasons because membership in the military was a condition of his civil-service employment. The trial court concluded the hearing by finding that appellant's disability retirement was not exempted from the definition of marital property under Ark. Code Ann. § 9-12-315.

On January 25, 2002, the trial court held the third and last hearing to determine why an order had not been entered yet. At that point, appellant contended that he could not sign the order because appellant had some military service time which factored into the civil-service retirement, pertaining, however, to a period occurring prior to his marriage with appellee. Appellee objected because the trial court already had issued a final order in this matter, even though no written decree had been filed yet. The trial judge stated: "Since the Decree hasn't been entered, and it's an issue that I can take a look at very quickly, I'll do it." The trial court ordered the taking of evidence on the issue of military credit toward the civil-service retirement.

Appellant then testified that he had been in the military twenty-two years and that the civil service was giving him credit towards his retirement for three years, eleven months, and twenty-nine days of military service. Notably, appellant admitted that the civil-service documents did not specify when the military service occurred. As proof for his active-dutymilitary service being credited toward his civil-service retirement, appellant handed to the trial court exhibit 1, a document entitled "`Estimated' FERS Disability Benefits." The trial court reviewed the exhibit and found that the exhibit did not say anything about active-duty service. Appellant then responded that the exhibit had nothing to do with his National Guard retirement, and that it was all civil service. The trial court then found that appellant's proof was inadequate, but recommended that the parties compromise, in the interest of justice. Appellant could not agree to compromise, and the trial court left the division of the retirement benefits at fifty percent.

Concerning appellant's next point of error, during the first hearing appellant also requested that appellee be ordered to pay one-half of back taxes owed to the IRS at the time of separation. He testified that he owed approximately $2,000 at separation. The trial court ordered appellee to pay half of that debt. During the second hearing, in October 2001, the parties discussed the tax debt as having been $1,800 at the time of separation. The final decree of divorce provides that each party shall pay one-half of the approximately $1,738 debt owed to the IRS.

Finally, the trial court ordered appellee to report any personal-injury settlement within seven days of the settlement. The written order, however, does not contain that requirement. From the written decree comes the present appeal.

We try de novo equity cases on appeal on the record made below. Burnette v. Perkins & Assoc., 343 Ark. 237, 33 S.W.3d 145 (2000). De novo appeal in equity cases involves determination of fact questions as well as legal issues. Id. We review both law and fact,acting as judge of both law and fact as if no decision had been made in the trial court and sift the evidence to determine what the finding of the trial judge should have been. Id. However, even in de novo review, we do not reverse a trial court's finding of fact unless it is clearly erroneous. Id. A finding is clearly erroneous when, even though there is evidence to support it, we are left with the definite and firm conviction that a mistake has been made. Id.

Appellee suggests that appellant waived his retirement benefit argument on appeal, or else did not raise it timely at trial. However, our supreme court has held that a chancellor had the discretion to reopen a divorce case to permit introduction of physician testimony concerning the permanency of a spouse's disability, in the context of whether that spouse's disability benefits qualified as marital property, even though the chancellor had filed a letter opinion in that matter nearly four years earlier, but had not yet entered a final decree and afforded both parties to be heard on that matter. Mason v. Mason, 319 Ark. 722, 895 S.W.2d 513 (1995). We hold that appellant did not waive his arguments or raise them untimely. He raised the issues during hearings that took place before a final order was entered. Therefore, we address the merits of his contentions.

First, appellant argues that the trial court erred in awarding appellee fifty percent of his civil-service retirement. Essentially, appellant reiterated his arguments from the trial level that part of that retirement came from military service that occurred prior to his marriage with appellee. However, we note that the burden of proof that a specific property is or is not marital property remains on the party who asserts interest in the property toestablish that it is separate property not subject to a division of marital property in a divorce proceeding. Aldridge v. Aldridge, 28 Ark. App. 175, 773 S.W.2d 103 (1989). In the present case, appellant failed to carry that burden of proof.

Specifically, the trial court was confronted with civil-service documents that fail to specify when the military service occurred. Likewise, appellant's exhibit 1, the "`Estimated' FERS Disability Benefits," does not say anything about active-duty service. We do not find error in the trial court's conclusion that appellant's proof remained inadequate, and therefore, the fifty-percent division of his retirement benefits is not clearly erroneous.

Second, appellant argues that the trial court erred in entering a decree ordering each party to pay one-half of the approximately $1,738 debt to the IRS. Again, we note that the trial court faced a variety of statements, ranging from "over $2,000" to $1,800. Viewing the record, we are unable to say that appellant never generally raised the issue of tax debt below. He certainly did. However, we cannot find anywhere in the record where appellant apprises the trial court of any error in the proposed order concerning the figure of $1,738. If that number constitutes error, he should have raised that error below. See Arkansas State Highway Comm'n v. Newton, 253 Ark. 903, 489 S.W.2d 804 (1973) (holding that appellate courts do not reverse when the error could have been easily remedied upon proper objection).

Finally, appellant contends that the trial court erred in entering a decree that did not order appellee to notify appellant of her personal injury settlement. The trial court orally ordered appellee to so inform appellant. Pursuant to Ark. R. Civ. P. 60(b), appellant oughtto have applied to the trial court to correct what appears to be a clerical error. Again, we do not reverse when the error below could have been easily remedied upon proper objection. Arkansas State Highway Comm'n v. Newton, supra.

Affirmed.

Hart and Baker, JJ., agree.