Gary Lee Adams v. Diane I. Adams

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

GARY LEE ADAMS

APPELLANT

V.

DIANE I. ADAMS

APPELLEE

CA04-500

MAY 25, 2005

APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT

[NO. DR 2002-120-2]

HON. PHILLIP H. SHIRRON,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Gary Lee Adams appeals from the portion of a Hot Spring County Circuit Court divorce decree that divided the parties' personal property. He argues that the trial court's decision was not supported by the evidence. We affirm.

Gary and Diane Adams were married on September 12, 1998. On March 7, 2002, Gary filed a complaint for divorce, alleging general indignities. He later filed an amended complaint that also alleged adultery. Diane filed a general denial. Iva Sills filed a third-party complaint, alleging that she had loaned $12,000 to the parties for the purchase of land and that they had "failed and refused" to pay. Gary answered with a general denial.

Prior to a final hearing on the merits, the parties agreed on the disposition of over 100 items of personal property. Memorialization of their agreement was entered into evidence as "Joint Exhibit 1." The parties also stipulated that the land upon which the marital residence was constructed was acquired by Gary in March 1987 pursuant to a real-estate sales agreement and that the deed, solely in Gary's name, was dated August 1998, one month prior to their marriage.

Gary testified that general indignities were established when Diane said, "I'm not Susie Homemaker and I don't care if you eat," and in the fact that she seldom prepared meals or cleaned. He asserted that his alternative ground, adultery, was established because Diane had entered into an adulterous affair. Diane acknowledged the grounds and did not contest them. Gary further testified that prior to and during the marriage, he worked as a concrete contractor. He admitted that during the marriage, he bought construction equipment, including a backhoe, a dump truck, a Ford one-ton truck, and a gooseneck trailer to use in his business. On cross-examination, however, Gary conceded that his business failed to show a profit during the marriage. Nonetheless, he requested that the trial court award him this equipment as an "unequal distribution" of marital property.

Gary also testified that prior to the marriage, he had entered into a real-estate contract to purchase the approximately five acres upon which he had begun constructing a "dream" home. He made a $4,000 down payment on the property and financed the remainder of the $15,000 purchase price. According to Gary, he paid off the land one month prior to the marriage when Diane gave him a "gift" of $11,000. Gary also claimed that he had made considerable progress on the dream home prior to the marriage. He conceded that Diane put money into the house and that, subsequent to the marriage, the parties took out a $33,000 mortgage on the dream home, purportedly to pay for construction. However, Gary asserted that the money was diverted to other uses, in particular Diane's horse hobby. Furthermore, Gary claimed that he had done most of the work on the house himself, or had bartered his services for carpentry and tile work. Regarding the $19,000 loan that Diane's mother, Iva Sill, had allegedly made to the parties, Gary claimed that Sill "gave" the parties $12,000 to purchase three acres adjoining the home site and denied that Sill had given the parties $7,000 in addition to the $12,000 for use in constructing the house.

Iva Sill testified that she wired the parties $12,000 to purchase 2.98 acres of land on July 18, 2000, at Gary's request. She also claimed that she had made previous "loans" of $3,000 on June 1, 2000, for kitchen expenses, and $4,000 on January 4, 2000, for unspecified house expenses. She sponsored into evidence an electronic funds transfer memo and two canceled checks to corroborate her testimony. Sill stated that she requested and received from Diane a promissory note for $19,015 dated July 20, 2001, because prior to that time, Sill "thought the land went into my name." Sill denied that any of the money that she provided to the parties was a "gift" and ascribed her failure to seek a more formal arrangement with Gary and Diane to the fact that she trusted them.

Diane testified that Gary's business showed a "loss" every year that they were married and that Gary did not have "a lot more equity" in the home than she did because she used $11,000 from the sale of her premarital Grapevine, Texas, residence to "clear" the land contract. According to Diane, although Gary had made sporadic payments on the property for approximately ten years, the principal had remained about the same because of the interest. She estimated that, as of the hearing, the house was about thirty percent complete, and the value of the land and the dwelling was approximately $65,000. She claimed that she put approximately $33,000 in non-marital assets into the home and that she put "every dime" that she earned into the joint account. Regarding the $13,000 that Gary withdrew from the joint account, Diane stated that it was money that she was setting aside to pay income taxes with.

The trial judge announced from the bench that he intended to divide the personal property in accordance with the agreement of the parties. He specifically stated that "if I touch on something that's contrary to that, your agreement will carry unless there's some reason that it should and could not be divided that way. You'll just have to bring that to my attention after you examined the stipulations because they're quite complex." He also declared that the real estate was marital property, along with the backhoe, trailers, and dump truck, and ordered that they be sold, with the proceeds used to satisfy the marital debts. The trial judge also ruled that the parties would each be responsible for one-half of the outstanding tax liability. He ordered that Gary relinquish half of the $13,000 he removed from the joint account. Regarding the $19,000 that Iva Sill allegedly advanced to the parties, he made a specific finding that it was a loan, and ordered that she be paid if there was any excess money left over after secured claims and tax obligations were satisfied, but the court specifically denied Sill a judgment.

Without citation of authority, Gary's argument consists of a series of bald assertions that eight of the nine numbered sections of the divorce decree were "inaccurate" or "wrong" and consequently should be rewritten in his favor. For simplicity's sake, we will address Gary's points in the order that he has asserted them. As always, we review traditional equity cases de novo on the record and will not reverse a finding of fact by the trial judge unless it is clearly against the preponderance of the evidence. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003). In reviewing the trial judge's findings, we give due deference to the judge's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. 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. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (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. Id.

Gary first asserts that the decree's recitation of certain historical and procedural facts are "inaccurate." However, the portion of the decree that he complains of merely recites the same dates that he stated in his original divorce complaint. If indeed these dates are "inaccurate," he is the author of the inaccuracy. It is settled law that an appellant may not complain on appeal that the trial court erred if he induced, consented to, or acquiesced in the trial judge's position. See Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001).

Gary next asserts that the trial court erred when he, as plaintiff, was referred to as a "she" not a "he," and complains that the "divorce was not fully verified; the Complaint was adultery." We are somewhat baffled by this statement. In the first place, Gary alleged both general indignities and adultery and neither ground was contested at the hearing. Furthermore, the divorce was granted. Accordingly, Gary got exactly what he asked for, so even if the statement in the decree relating to the grounds is inaccurate -- and we do not believe it is - he has failed to demonstrate or even allege prejudice. Therefore, this point is unavailing; unless the appellant demonstrates prejudice, we do not reverse. Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).

Gary next challenges the division of the parties' real and personal property by simply asserting that the trial court erred in allocation of this property, without giving any specific facts or citing authority. Accordingly, to the extent that this point concerns disputed items such as the motor vehicles, trailers, and the real estate, the inadequacy of this purported argument is fatal. It is well settled that where no citation to authority or convincing argument is offered, we will decline to address the issue on appeal. See Norman v. Norman, 347 Ark. 682, 66 S.W.3d 635 (2002).

The disposition of the property by agreement of the parties rests on a different footing. We are mindful that, prior to the hearing, both Gary and Diane entered into an agreement involving more than 100 pieces of personalty, and that Joint Exhibit 1 memorialized the parties' decisions concerning which of the items were marital and which were nonmarital, as well as the allocation of many of the marital items. Furthermore, at the conclusion of the hearing, the trial judge expressed his intention to honor this agreement and told the parties to bring any errors that he might make in the final decree to his attention. Even if our de novo review of the record would allow us to evaluate Gary's assertion that the final decree failed to properly dispose of the assets, Gary has inexplicably failed to abstract or place in his addendum Joint Exhibit 1. Supreme Court Rule 4-2 outlines the requirements for abstracting on appeal, and the burden is clearly placed on the appealing party to provide both a record and abstract sufficient to demonstrate error for appellate review. Greene v. Pack, 343 Ark. 97, 32 S.W.3d 482 (2000). We have often written that the record on appeal is limited to that which is abstracted, and we will not examine the transcript of a trial to reverse a trial court, although we will do so to affirm. Id. Although our rules prevent us from correcting any of the mistakes alleged by Gary, if indeed there are clerical mistakes or errors, he is not without a remedy because relief can still be sought pursuant to Rule 60(b) of the Arkansas Rules of Civil Procedure.

Regarding the "kitchen dowels," "3 Nat. Geographic filed I.D. books (birds, reptiles & fish)", and the "Madam autographed book," we cannot find in the record that Gary obtained a ruling on their disposition. Failure to obtain a ruling from the trial court is a procedural bar to our consideration of the issue on appeal. Norman v. Norman, supra.

Finally under this point, Gary challenges Diane's receipt of the old board saddle, the "95 Fair Windsboot" [sic], the dishwasher, microwave hood, convection oven, digital camera, white TV, lap top computer, old saddle, and "financial accounts." We note that most of these items were awarded per the parties' agreement. The balance were either contested items awarded by the trial court or items that were not specifically ruled upon. Accordingly, we will not disturb their disposition on appeal.

Gary's next allegation of error concerns the amount of debt owed to Ford New Holland Credit, the company that financed the backhoe. He asserts that only about $9,000 is owed to New Holland, not the approximately $25,000 stated in the decree. We find this alleged error to be of no consequence. The trial court found that the backhoe was marital property, and the balance owed to New Holland was to be paid out of the sale of the disputed marital assets. The fact that New Holland will receive less money to satisfy the debt will simply mean that more marital funds will be available to cover other obligations or possibly be divided by the parties. We cannot see how Gary is prejudiced by this ruling and accordingly, we do not reverse. Jones v. Jones, supra.

Gary next asserts that the trial court erred in ordering that the Intervenor Iva Sill be "paid $19,000 for a loan that never existed." We note, however, that Ms. Sill testified that she indeed made a loan totaling $19,015 and that the money was definitely not a gift to the parties. Although our review is de novo, we give due regard to the trial court's superior position in judging the credibility of witnesses. Moore v. Davidson, 85 Ark. App. 104, 145 S.W.3d 833 (2004). Here, we defer to the trial court's determination that Ms. Sill's testimony concerning the loan was credible and find no reversible error.

Gary next contends that the trial court should have ordered Diane to pay him $121.98 rather than ordering him to reimburse her $450 for money that she paid to the IRS on his behalf. He bases his figure on the money that he advanced for real estate taxes in 2001 and 2002. However, he failed to get a ruling on this purported set-off, and therefore we cannot address it on appeal. Norman v. Norman, supra.

In a similar vein, Gary asserts that he should have been awarded half of Diane's "financial accounts" totaling some $53,265.06. In support of this allegation of error, Gary directs us to Plaintiff's Exhibits 2, 3, and 5, which are abstracted only as "Appellant's check register," "Appellant's check register," and "2000 Tax Return," respectively. We decline to address this point; as with the tax payments, the trial court only ruled on the disposition of an IRA that Diane had opened prior to the marriage, and the failure to secure a ruling on whether these other "financial accounts" were even marital property bars our consideration of this issue on appeal. Id.

For his final point, Gary asserts that the paragraph in the decree ordering him to pay to Diane one-half of the $13,000 that he removed from the joint checking account on December 31, 2001, was "wrong" because the account still contained "$8,585.46." He asserts that he should be awarded half of the $8,585.46. We are unable to understand the logic of this assertion.

The offending section of the decree merely states:

Plaintiff shall pay immediately to the Defendant the sum of $6,500.00, which the Plaintiff withdrew from said account, and which represents half of the funds contained in the parties' bank account.

This portion of the decree merely addressed an allegation by Diane that Gary had withdrawn marital funds in contemplation of the parties' impending divorce. As to the remaining balance, Gary failed to get a court ruling on its disposition. Accordingly, this issue is also barred from consideration on appeal. Id.

Affirmed.

Gladwin, J., agrees;

Roaf, J., concurs.