David Camp v. Neva Camp

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA03-715

March 31, 2004

DAVID CAMP AN APPEAL FROM LAFAYETTE COUNTY

APPELLANT CIRCUIT COURT

[DR2002-58-2]

v.

HONORABLE JAMES SCOTT HUDSON, JR.

NEVA CAMP CIRCUIT JUDGE

APPELLEE

AFFIRMED

Josephine Linker Hart, Judge

In this appeal, appellant David Camp challenges the trial court's division of marital property. Appellant contends that the trial court erred in awarding appellee Neva Camp a marital interest in certain livestock, in an annuity, and in a grandfather clock because those items were appellant's separate property. We find no error and affirm.

The parties were married on October 26, 1988, and separated on May 26, 2002. No children were born of the marriage. Wife filed her complaint seeking a divorce and a division of the marital property and later amended the complaint to seek alimony and an unequal division of the marital estate. Husband denied the material allegations of the complaint. The main issue at trial was the division of the marital assets. At the beginning of the trial, the parties stipulated that two lists, one prepared by each party, represented allof the marital property, with the parties disagreeing on the value of the property and its division. The lists contained the livestock, the annuity, and the grandfather clock.

Wendell Caskey, a long-time friend of husband, testified that husband opened a livestock sale barn in 1997 and that he worked for husband at the barn. He also testified that he sometimes accompanied husband to purchase hogs and that he also transported hogs to market for husband. Caskey stated that husband was also in business with Robin Burns under the name D&R Hog Farm. He also stated that someone else was running the sale barn but did not know how much was being paid to husband for that privilege.

Patsy Tatum testified that she knew wife from the time wife moved to Arkansas from Connecticut. She also testified that she knew of husband's hog business and had seen, in her estimation, over a hundred hogs on his farm on the Friday or Saturday prior to her testimony. Tatum admitted that she was basing her assertion that husband owned the hogs on the fact that they were on his property. She also admitted that she was not certain as to his interest in the hogs. She also stated that the only knowledge she had of husband's cattle trading was the fact that he owned a sale barn.

Wife testified that she was born in the Philippines and came to the United States in 1986. After corresponding with husband, she arrived in Arkansas in June 1988, where she lived with him and his mother for four months prior to getting married. She stated that the parties purchased the sale barn in 1996, with husband in charge of the business affairs. She noted that she worked with the hogs and in the sale barn and also testified that husband wasin the hog business with Robin Burns as D&R Hog Farm. She stated that she has recently seen hogs on the marital property and produced photographs of the hogs.

Husband testified that, at trial, there was a contract in place for the sale of the auction barn to Gary Rivers for $150,000. Husband denied having any hogs or that anyone was keeping hogs for him. He also stated that, if anyone has seen any hogs on his property, they did not belong to him. Husband also could not remember whether he was paid in excess of $13,000 for social security disability. He testified that he did not know what he did with the money. Husband admitted using Robin Burns's social security number in the operations of D&R Hog Farm because he wanted to avoid showing income due to his social security disability. He also stated that he and Robin Burns were no longer operating D&R Hog Farm. Husband testified that his income consisted of $2,287 a month from the VA; $743 from social security; $336 per month from the sale of a Texaco business; and $500 per month from Gary Rivers from the sale of the sale barn. Husband denied having sold any cattle or hogs. Husband admitted that the parties had a grandfather clock for which they did not pay. Husband stated that his mother bought the clock and gave it to him as opposed to both him and his wife.

Husband testified that he received an eye injury while in the Army in 1965. Husband testified that he was assigned a 30% vision loss from an injury that occurred at Ft. Polk in 1965. He also testified that he was legally blind in one eye. Husband admitted to having six head of cattle at the time of trial. He also testified that the annuity was purchased during the marriage with funds from a lump-sum VA disability payment, not marital funds. Husband could not verify the value of the annuity as being $50,000, and the exhibit he offered on the annuity did not contain any information regarding the value of the annuity.

The trial court granted wife a divorce but denied wife's requests for alimony and an unequal division of property. The trial court equally divided the marital property by ordering certain real and personal property sold and the proceeds divided equally. Among the items ordered sold were 30 cows, 100 hogs, and the grandfather clock. Each party was awarded one-half of the annuity account in husband's name with Farm Bureau Mutual Insurance. The parties were also to share any tax consequences of dividing the annuity.

Appellant raises three points for reversal: the trial court erred in ordering livestock sold and the proceeds divided because there was insufficient evidence that husband had an interest in the livestock; that the trial court erred in ruling that appellant's personal injury annuity was marital property; and that the trial court erred in finding that a grandfather clock originally belonging to appellant's mother was marital property.

On appeal, equity cases, such as divorces, are reviewed de novo. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 738 (2001). With respect to the division of property in a divorce case, we review the trial judge's findings of fact and affirm them unless they are clearly erroneous. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Huffman v. Fisher, 343 Ark. 737, 38 S.W.3d 327 (2001). In order to demonstrate that the trial court's ruling was erroneous, an appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Skokos, supra.

In his first point, husband argues that the trial court erred in finding that the cattle and hogs were marital property to be sold and the proceeds equally divided. Husband contends that there is insufficient evidence that he owned or had any interest in the livestock because there was no specific testimony on the number of cattle. However, the livestock is contained in a list that the parties stipulated to as containing the marital property. The list contains an entry for "cows (10) - thirty (30 cows in March)." In addition, husband admitted having six cows. However, this statement was inconsistent with his earlier statements in which he denied having any cattle or hogs. Patsy Tatum and wife both testified that they had recently seen hogs on husband's property and introduced a photograph to support their testimony. Here, after hearing conflicting testimony, including husband's admission that he has six cows, the trial court made a finding of fact that the cattle and hogs were marital property and ordered them sold. It is the province of the trier of fact to determine the credibility of witnesses and resolve conflicting testimony. Crismon v. Crismon, 72 Ark. App. 116, 34 S.W.3d 763 (2000). We affirm on this point.

Husband next argues that the trial court erred in dividing the annuity because it was purchased with funds received for personal injuries he suffered. Husband testified that he received an eye injury while in the Army in 1965. He also testified that the annuity was purchased during the marriage with funds from a lump-sum VA disability payment, not marital funds. The exhibit offered to prove the annuity came from VA funds does not specify a value for the annuity and has a reference to a VA check in the amount of $334. There is a presumption that all property acquired during the marriage is marital property. McKay v.McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). Therefore, the burden is on the husband to establish that the annuity is in fact separate property not subject to division. Aldridge v. Aldridge, 28 Ark. App. 175, 773 S.W.2d 103 (1989). The trial court noted that there was not any such proof, other than husband's testimony. The trial court apparently found that husband failed to rebut the presumption.

Husband cites Skelton v. Skelton, 339 Ark. 227, 5 S.W.3d 2 (1999), for the proposition that the trial court erred in not utilizing a two-prong test to conclude that the annuity is husband's separate property. In Skelton, the supreme court held that a husband provided sufficient proof to establish that his disability payments were exempt from the definition of marital property. In reaching this conclusion, the court utilized a two-prong test originally set forth in Mason v. Mason, 319 Ark. 722, 895 S.W.2d 513 (1995). The first prong requires that the claim be for a degree of permanent disability or future medical expenses. Second, the injury must be sustained while on the job or in the consequence of a tortious act. Id; see also Collins v. Collins, 347 Ark. 240, 61 S.W.3d 818 (2001). However, husband did not argue the Skelton test to the trial court. This court will not address arguments raised for the first time on appeal. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997). If a particular theory is not presented at trial, the theory will not be reached on appeal. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). We affirm on this point.

For his third point, husband argues that the trial court erred in finding that a grandfather clock was marital property to be sold and the proceeds divided. As stated above, there is a presumption that all property acquired during the marriage is marital property and husband had the burden of proving otherwise. The stipulated lists of the marital property contained the clock. Husband testified that his mother gave the clock to him as opposed to husband and wife. The trial court made a finding of fact that the grandfather clock was marital property. As such, the issue turns on credibility. It is the province of the trier of fact to determine the credibility of witnesses and resolve conflicting testimony. Shoptaw v. Shoptaw, 27 Ark. App. 140, 767 S.W.2d 534 (1987). We affirm on this point.

Affirmed.

Gladwin and Griffen, JJ., agree.