Thomas McQueen Brown v. Debra K. BrownAnnotate this Case
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
September 28, 2005
THOMAS McQUEEN BROWN AN APPEAL FROM PULASKI COUNTY
APPELLANT CIRCUIT COURT
HONORABLE ELLEN BRANTLEY,
DEBRA K. BROWN CIRCUIT JUDGE
Karen R. Baker, Judge
This is a divorce case involving the division of property and child support. Appellant Thomas Brown argues on appeal that the trial judge erred in awarding appellee Debra Brown the marital home and a greater share of their marital property and in awarding child support. We find no error and affirm the trial judge's decision in all respects.
Tom and Debby Brown were married in 1983 and are the parents of two minor children born in 1990 and 1993. Tom has a bachelor's degree in civil engineering and worked as a salesman for his father's business, AFCO Steel, in which he held stock, from 1978 until 1999, earning around $40,000 per year. Debby has a law degree and passed the Arkansas bar exam in 1980. She worked for the Mitchell Law Firm from 1984 until 1989, earning around $90,000 annually. She did not return to work after having the couple's first child and, at the time of trial, her law license was on inactive.
In 1988, following a sale of a portion of the family business (AFCO Metals), Tom received over $4 million. At first, he deposited the money into an account in his individual name; after paying taxes, he transferred the money into accounts that he held jointly with Debby. Tom managed the parties' finances. The parties bought a house in Cammack Village in 1983 and, paying cash, added a second story to it in 1989. That same year, the Browns purchased the lot behind their house, where they built a garage with a kitchen, bedroom, and bathroom, again paying cash. They satisfied the mortgage on their property in 1990.
In 1999, Tom terminated his employment with the family business, which by agreement, continued to pay the family's health insurance. Tom developed a serious drug problem. The evidence showed that, at one point, he was spending several hundred dollars each day on crack cocaine and other drugs. Tom, who kept an office in the garage, abused drugs and had affairs with other women there. According to Debby, she was not aware of her husband's drug abuse. The neighbors were suspicious, however, and prompted the Cammack Village Police Department to begin surveillance of Tom. On February 13, 2001, the police raided the garage while Tom and a woman were inside using drugs. Tom was arrested and, after his release from jail later that day, participated in a "reverse sting" operation. Later that day, Debby took him to Baptist Medical Center for detoxification. While he was there, he signed a power of attorney to Debby. The next day, he was admitted to Bridgeway Hospital for treatment of his drug addiction.
During Tom's stay at Bridgeway, he signed two quitclaim deeds, a revised will, and another power of attorney prepared by Debby's former law firm conveying his interest in the marital home and the adjoining lot to Debby. On February 28, 2001, Debby took Tom to Talbot Recovery Center in Atlanta, Georgia, where he spent over a year in rehabilitation. During that time, Tom relapsed a few times. He was also treated in Atlanta at a behavioral medicine clinic for sexual addiction. At the time of trial, Tom was living in Atlanta and was receiving treatment from Talbot on an out-patient basis. He was not employed but was taking college classes in anthropology and archeology.
In August 2002, Tom received over $7.5 million from the sale of AFCO Steel and placed this money in an irrevocable trust that will terminate in August 2007 at Delta Trust. His sister and his father, Fred Brown, are co-trustees. Fred makes investment decisions for the trust. Tom also set up trusts for the parties' children.
Debby filed for divorce on August 29, 2002, asking for the marital home and adjacent lot (which she claimed Tom gave her), an unequal division of the marital assets, alimony, and child support. She asked the court to impute income to Tom from employment and his non-marital trust fund.
Debby testified that she knew that Tom had an alcohol problem as early as 1988, when he entered Alcoholics Anonymous, where he did very well over the years. She said that, between 1990 and 2000, Tom became increasingly depressed, went to work less often and slept much more, and attributed his problems to difficulties at work. Debby stated that Tom spent a lot of time in the garage where, in addition to an office, he kept his sports cars, hunting equipment, boats, and tools. She said that she became very concerned about him in 1998 and, with his father's help, persuaded him to go to the Mayo Clinic in Scottsdale, Arizona. She stated that the clinic diagnosed him as being mildly depressed, recommended counseling, and referred him to a sleep disorder clinic. Debby said that, after Tom was fired by AFCO Steel in 1999, until his arrest, he saw Dr. Joe Backus at Bridgeway two times a week; however, he did not mention his drug problem to Dr. Backus and blamed his depression on his estrangement from his parents and siblings. She said that, after Tom refused to keep an appointment for a life-insurance physical she asked Dr. Backus if he thought Tom was drinking again or using drugs; Dr. Backus told her that she had nothing to be concerned about. Debby said that, although she had once caught Tom smoking crack cocaine while on a cruise, he had agreed to spend more time at AA, and she had believed that he had not continued to abuse drugs. Debby stated that, a few days before Tom's arrest, she was shocked to receive a call from a Cammack Village alderman, who told her that the garage was under surveillance. She said that she immediately confronted Tom, who put on the "performance of a lifetime," became angry and indignant, denied using drugs, and assured her that the people who had been coming and going from the garage were simply his business associates with Arkansas Insulation Contractors, Inc. (AIC), a company in which he had invested.
Debby testified that, on the day of Tom's arrest, the police (including Pulaski County deputies and federal agents) broke down the back door to the garage with axes and clubs; after a while, Cammack Village Police Chief Dale Whitney and a deputy came to her door, told her that Tom had been arrested, and informed her that he was a crack cocaine addict. Debby said that, a little later in the day, when she saw Tom being escorted by two police officers into the garage, she called Chief Whitney, who came over and asked her to stay in the house because Tom was participating in a reverse-sting operation. Debby stated that, after Tom came home that evening, she drove him to Baptist Hospital, where he stayed for twenty-three hours. After leaving Tom at Baptist, she said, she met with Tom's parents to discuss their concerns that Tom might run away from treatment and the acute need to preserve the family's assets. She stated that, the next morning, with instructions from Tom's father to move all assets out of Tom's name, she had Tom sign the first power of attorney, which Tom's father had delivered to her. Debby said that Tom's parents were very concerned about the parties' money and it was imperative that she take immediate action to marshal the family's assets. She met with Tom's father, his brother, and the parties' financial advisor, Daniel Blair. She said that Tom's family instructed her to move their funds from Daniel Blair to Frank Hiegel at Salomon Smith Barney, which she did. Debby testified that Tom's father continued to express his wish that she take all of their assets out of Tom's name; with the power of attorney, she went to First Star Bank, where Tom had an account, and was shocked to learn that the account's balance was $14; thirty days prior to Tom's arrest, the account had held a balance of $95,000; five months prior to his arrest, it had contained $160,000. She also stated that she learned that Tom had written two hot checks to his Visa company totaling $12,000 and that she immediately covered that debt.
Debby testified that, in August 2000, she had become aware that Tom had invested in AIC and was surprised to learn that he had guaranteed its debt for over $200,000 at FirstStar Bank, for which he had pledged as security some stock that he and Debby held jointly. She said that AIC went into bankruptcy and, soon after Tom's arrest, she learned that FirstStar had demanded that he pay $228,000; at that time, she did not know if she had the assets to satisfy that debt, and did not do so. Therefore, she said, FirstStar Bank sold three of the parcels of stock, leaving a deficit of $58,000. On the advice of Tom's father and Mr. Hiegel, Debby said, she offered to pay that debt in cash as well as a $90,000 mortgage that FirstStar held on the back lot, to which Tom had insisted she agree, for which $89,000 remained due. Debby stated that FirstStar Bank accepted her check for the balance due on the mortgage and for the debt Tom owed for his Viper; however, because Debby would not execute a release to FirstStar for any wrongdoing that FirstStar might have had in connection with the AIC loan, FirstStar would not accept her check for the $58,000 debt and liquidated the remaining stock held as collateral, causing the parties to incur a capital gain.
Because the police had broken down the garage door, the parties' valuable possessions, including Tom's checkbook and credit cards, were insecure. Debby said that Mike Hansen, Tom's friend since childhood, secured the garage for her and that he and his wife, Karen, searched it at her request. She stated that she learned that the garage was filled with pornography and that Tom had filmed himself having sex with other women. Debby also stated that Tom's vehicle had been taken, along with their house key, by the woman who was in the garage at the time of his arrest; when the car was recovered, the garage-door opener was missing.
Debbie introduced evidence that she paid unusual expenses totaling $355,000 within the first month of Tom's arrest. She testified that, after Tom's arrest, she discovered that he had spent over $2600 for sex toys that he used while having affairs with other women and that he had some internet pornography subscriptions. She also stated that Tom had charged $5500 on a credit card for a rented limousine for one of his crack cocaine dealers. Debby also said that she discovered that Tom had transferred funds from their joint accounts at American Express and Morgan Keegan into his checking account, from which he supported his drug habit. According to Debby, Tom admitted that he had spent $1000 a day for three and one-half to four years, roughly $1.2 million, on crack cocaine.
Debby said that, after Tom's arrest, she received threatening phone calls; Tom identified one of the callers as a gang member who had bragged about shooting people. She said that Chief Whitney gave her a radio and showed her how to shoot a gun. She explained her concerns about security and her belief that Tom needed to deed the house and garage to her as follows:
I was visiting Tom at The Bridgeway almost .... daily, I think. Daily. On one of those occasions I sat down, and I had recovered Tom's car. The girl who was in the garage took his car. I've yet to recover that garage door opener and it's troubling. And I sat down and I was really thinking through about my security. What I told Tom was, Tom, I feel threatened. And I said, you know, you've been associated with dangerous people and I want to be able to take care of myself if I need to. One of the people that was calling and leaving threatening calls, Tom told me, was in a gang and had a gun and had bragged of shooting people. I was scared to death. So what I relayed to Tom was, Tom, I couldn't even arrest that girl who was in the car, Chief Whitney said, because I'm not the sole title holder. You've obviously had these different people in and out of your garage. I need to have title so if somebody steps a toe on the property I can have them immediately arrested. I mean, I didn't want these dangerous people out on the street, I wanted them in jail.
I had another security reason. I did not reveal it to Tom because I didn't want to make a suggestion to him. But truly, if the people that were threatening me, if I really felt it became too overbearing I was going to pick up and move, certainly from that house, maybe from Little Rock. I wasn't sure. And what I was afraid .... I was getting ready to take Tom to a voluntary program in Atlanta, Georgia, where he could walk out the door at any minute. And I was afraid that if Tom bolted and I didn't know where he was and I was in Little Rock unable to sell my house because I couldn't get his signature on a deed, that I would put myself and my children in jeopardy. That is truly what bothered me.
I didn't tell Tom the second reason because I didn't want to suggest to him the idea that he might run away from treatment. I didn't really want him to be thinking like that. But those were my reasons.
I also had him sign the power of attorney that same day .... He was .... calm and quite [sic] and .... we were having a discussion about the car and the security. He was understanding me, I'm quite competent [sic] of that .... I think at this point we knew that Talbot was coming but the definite release date wasn't clear, but it was in the future. And you know, obviously, we would be traveling, you know, by plane, it occurred to me. And I got started talking about our will, but right now our will designated an individual ... who was a good family friend, to be the guardian of our children in case Tom and I died. Well, [this friend] was sitting in The Bridgeway Hospital with Tom Brown, arrested for running a methamphetamine lab and facing felony charges. And as Tom and I talked, I said, you know, we can't get on an airplane together. I said, if the airplane goes down, [this friend], who's maybe going to jail and has a drug problem, I love him dearly, but he can't be the guardian of our children. Tom and I had discussions about who we could select.
We selected kind of relative-in-laws. We selected Trisha and Marty Rhodes, who are related to a sister-in-law.
[T]hat took a few days because I had to get the Rhodes' consent.... Then I came back and, of course, I had a notary with me so we could make it official. And we sat down and I said, Tom, here it is. And then a nurse who came to the little lounge area intervened and said, oh, we don't like papers signed here. And it really irritated me because I thought, well, this is really just a change of designation. It just seemed horribly irresponsible for two people to get on an airplane and let someone like [this friend] be a guardian in case there was some calamity....
.... But a couple of days later, forty-eight hours late[r], they let Tom sign it. In fact, they directed me to a notary at the facility and she notarized it there.
The trial judge granted a divorce to Debby on March 29, 2004, giving her sole custody of the children subject to supervised visitation by Tom. The trial judge found that $250,000 was a fair estimate of Tom's total annual gross earnings from the trust account, distributions from Industrial Realty Company (a Brown family business in which Tom held stock), estimated earnings on his share of the joint funds at Salomon Smith Barney, and imputed earnings. Deducting trust administration fees and taxes, the trial judge found that a fair estimate of Tom's annual net earnings was $160,000, on which the family-support chart set child support at $2950 per month. Following the chart and requiring Tom to contribute $200 per month toward the cost of health insurance for the children, the trial judge set Tom's monthly child-support obligation at $3150.
The judge awarded Debby alimony of $3000 for the first twelve months following the decree, $2000 per month for the next twenty-four months, and $1000 per month for the next twenty-four months, when alimony would cease. She awarded Debby all of her non-marital property, which included funds she inherited from her parents. The judge awarded Tom his non-marital property, including the trust funds at Delta Trust, his interest in Industrial Realty, his membership in the Country Club of Little Rock, and his interest in Island 69 Club. She also awarded each party ownership of the vehicle in his or her possession. The judge expressly found that Tom gave his interest in the marital home and the lot behind it to Debby and awarded both parcels of property to her. Tom was awarded the Brown family's antique silver service.
The trial judge gave the following explanation for her unequal division of the parties' marital property in favor of Debby:
20. The parties own as marital property $1,504,284.00 held at Salomon Smith Barney and the Thomas M. Brown rollover IRA account at Delta Bank & Trust in the amount of $172,346.00. Ark. Code Ann. § 9-12-315(a)(A) provides that this property be distributed one-half to each party unless the Court finds such a division to be inequitable. The Court finds that in this case, a one-half division would be inequitable because the Defendant depleted the marital estate for his own benefit for purposes unrelated to the marriage.
21. The Court has considered Ark. Code Ann. § 9-12-315 in determining an equitable division. The parties have had a lengthy marriage, having been married 21 years. The Plaintiff has provided services as a housewife and mother, having had sole responsibility for the care of the parties' children since their birth. Moreover, prior to the birth of the parties' children, Plaintiff was employed and contributed financially to the joint venture of the marriage. With regard to amount and sources of income, the Defendant has substantial nonmarital assets that are not available to the Plaintiff. Defendant may well inherit other assets as well. In addition, Defendant's nonmarital trust account terminates in 2007. If Defendant does not choose to extend the trust, he may dissipate those assets and lose the ability to pay support. Thus, the children may have needs in the future that can only be secured by making an unequal distribution. An unequal distribution is appropriate in this case also because of the Plaintiff's actions in preserving the marital property.
22. After considering the statutory factors, the Court finds the appropriate unequal division to be 75% of the funds to Plaintiff and 25% of the funds to Defendant, with Defendant's portion to be funded first with the $15,500.00 he has already taken from the Salomon Smith Barney account, the $10,000.00 as the value of the Plaintiff's interest in Cebolla Farms, and the Defendant's IRA in the amount of $172,346.00. Defendant is credited with half the value of the household furnishings in the amount of $13,000.00. The remaining amount due Defendant is $234,311.50 and will be funded from the Smith Barney account.
The court held each party responsible for his or her attorney's fees. Tom filed his notice of appeal from the decree on April 14, 2004.
On appeal, Tom challenges the trial judge's finding that he gave the marital home to Debby, the unequal division of marital property, and the award of child support. 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.
Tom contends that the trial judge erred in finding that he gave the marital home and adjacent lot to Debby. He asserts that he lacked the mental capacity to convey the property when he signed the deeds; that he did not intend to pass title to Debby; and that Debby gave no consideration for the deeds. At trial, Tom introduced into evidence the deposition of Dr. Harley Harber, his psychiatrist at Bridgeway, who testified that Tom was taking sedatives for detoxification while he was there. He said that, during the first few days after admission, Tom was cognitively clouded and was not making good judgments. According to Dr. Harber, when Debby brought the deeds to Bridgeway for Tom's signature, Tom was mentally impaired.
Tom also asserts that Debby's explanation for her need to have him sign the deeds (for security of the premises) was not credible. As Tom points out, Chief Whitney testified that he had not told Debby that she should take Tom's name off the deed to the property so that she could protect herself and her family; instead, he said that he had advised her to take Tom's name off the title to his vehicle so that she could have the woman who had driven off with it arrested. Tom contends that the inconsistency between Debby's testimony and that of Chief Whitney demonstrates that Debby lied to him about her motivation for having him sign the deeds.
The trial judge, however, specifically found Debby to be a credible witness. As discussed above, Debby testified at length about her justifiable fear for the safety of her family after Tom's arrest and participation in the reverse-sting operation. Chief Whitney's testimony demonstrated that her fear was justified. He said that he was concerned about Debby's safety and that of the children; that he suggested that Debby change the locks on the garage; that he advised Debby to get her alarm system in working order; that he gave her advice about firearms; and that he took a police radio to her house.
The requirements for an effective inter vivos gift are: (1) the donor knew and understood the effect of his act and intended that effect; (2) the donor made actual delivery of the chattel to the donee or his agent; (3) the donor by delivery, intended to pass title immediately; (4) the donee actually accepted the chattel as a gift. McCune v. Brown, 8 Ark. App. 51, 648 S.W.2d 811 (1983). When a conveyance is voluntary and absolute on its face, the question of consideration is immaterial. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180(1984). Inadequacy of consideration does not afford grounds for setting aside a voluntary conveyance. Id.
Citing Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981), Tom argues that, because Debby procured the deeds and was the dominant party in their confidential relationship, she bore the burden of proving beyond a reasonable doubt that he had the required mental capacity and freedom of will to execute them. In McKasson v. Hamric, 70 Ark. App. 507, 510-11, 20 S.W.3d 446, 449 (2000), we discussed Neal v. Jackson and explained that, in an ordinary deed transaction, a grantee who procures a deed does not bear the burden of proving the grantor's mental capacity and freedom from undue influence; however, a different rule applies if the parties to the deed are in a confidential relationship and the grantee is the dominant party:
The rules relating to an alleged mental incapacity of the grantor of a deed are set out in Watson v. Alford, 255 Ark. 911, 503 S.W.2d 897 (1974). The burden of proving mental incapacity rests upon the person seeking to set aside the deed. The burden of proof is by a preponderance of the evidence. Id. at 913, 503 S.W.2d 897. The fact that a grantor is old and in feeble health is a circumstance bearing on the question of mental capacity as is gross inadequacy of the purchase price. Id. at 912, 503 S.W.2d 897. Each case dealing with mental capacity must be decided on its own peculiar facts and circumstances. Id. at 913, 503 S.W.2d 897.
Appellant relies on Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981), and Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997), for the proposition that one who procures a deed has the burden of proving mental capacity and a lack of undue influence. The language in Neal, upon which appellant relies, was dicta. Noland involved an inter vivos trust with title to the real property to pass at the time of the settlor's death. It simply cannot be the law that in an ordinary deed transaction the grantee bears the burden of proving the grantor's mental capacity and his freedom from undue influence merely because the grantee has caused the deed to be prepared.
It is true that in certain circumstances a presumption of undue influence may arise in connection with the execution of a deed. See Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). (A gift to the dominant party in a confidential relationship.) Appellant does not contend that Myrick applies here. Our conclusion is that the trial court did not err in placing the burden of proof upon the appellant.
Finally, appellant argues that the chancellor erred in finding that Mrs. McKasson possessed sufficient mental capacity to execute the deeds. The law regarding mental capacity in the execution of a will is also applicable to the execution of a deed. If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). Evidence of the grantor's mental condition, both before and after the execution of the deed, is relevant to show his mental condition at the time he executed the deed. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999).
When the grantee is the dominant party in a confidential marital relationship with the grantor, it is presumed that a transfer of property from the grantor to the grantee was invalid due to coercion and undue influence, if the evidence shows that the grantee occupied such a superior position of dominance or advantage as would imply a dominating influence over the grantee. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). In such a case, the grantee bears the burden of rebutting the presumption by producing evidence showing that the transfer of property was freely and voluntarily executed. Id. Therefore, if at the time the deeds were signed, Debby was the dominant party in a confidential relationship with Tom, and occupied such a superior position of dominance as would imply a dominating influence over him, it would be presumed that the transfers of property from Tom to her were invalid, and she would bear the burden of proving that the deeds were freely and voluntarily executed. Debby does not dispute that she was in a confidential relationship with Tom but argues that he was mentally competent to sign the deeds. As Dr. Harber testified, however, Tom's fragile mental state in the early days of detoxification could have rendered him incapable of exercising sound judgment and subject to domination by Debby, even though he usually handled the couple's finances.
It appears that Debby enjoyed a confidential relationship with Tom, see Dunn v. Dunn, 255 Ark. 764, 504 S.W.2d 168 (1973), and that, while he was at Bridgeway, she was probably the dominant spouse. Ordinarily, the next question would be whether Debby proved beyond a reasonable doubt that Tom acted with the requisite mental capacity and freewill in signing the deeds. However, a deed procured and executed under the circumstances alleged by Tom would not be void, but merely voidable, and can be subsequently ratified by the grantor. Heskett v. Bryant, 247 Ark. 790, 447 S.W.2d 849 (1969). It has long been the law that a deed given while the grantor lacked mental capacity may be upheld as valid if the evidence demonstrates that the grantor ratified the deed after regaining his sanity. See Eagle v. Peterson, 136 Ark. 72, 206 S.W. 55 (1918). Silence or acquiescence in a contract for any considerable length of time can amount to ratification. Coleman v. Coleman, 59 Ark. App. 196, 955 S.W.2d 713 (1997).
The trial judge did not base her decision on Tom's mental capacity when he signed the deeds but on her finding that Tom later ratified the conveyances. The judge explained:
Let me start with the house. I think the house is actually, in some ways, maybe the most difficult legal issue. I mean, not legally, but it's most difficult to lay the testimony... I don't really know Dr. Harber. I think he's appeared in this Court before, but not enough times that I can really place him. His testimony was ... I mean, he seemed like a real fair witness. He looked like he was really trying to give his honest opinion without favoring one side or another. And he was careful to say, "I'm not a lawyer but I did think he had impaired judgment, that he would have done anything." I mean, he talked about feelings of shame and guilt, all of which seemed to have disappeared before Mr. Brown got on the stand here, but which he had at the time understandably.
I will say that I think if the only testimony that I had other than the parties in the case was Dr. Harber's, I would probably be inclined to find - although it would be a close case - that it was not intended as a gift. And I hate to say this because I think from the Hansen's testimony, that at least Mr. Hansen probably still feels a great deal of friendship and affection for Mr. Brown even though in the last few years they haven't been close, but I didn't see quite as much from Mrs. Hansen.
But I would say their testimony is what has convinced me that Mr. Brown did know what he was doing, that he intended it as a gift because some months afterwards he just stressed that. And if he had not, then I think we would have seen something prior to the time that he first raised that issue.
So it's going to be my finding that the house was, in fact, given to her....
But in any event, I think it was intended as a gift and that he reaffirmed that. I found the Hansens pretty credible and not in any way inclined to be biased against Mr. Brown, particularly Mr. Hansen.
The trial judge's findings are supported by the testimony given at trial. Tom signed these deeds in February 2001 and did not challenge their validity until over a year later. During the interim, he told his close friend, Mike Hansen, on at least three occasions after leaving Bridgeway that he had given the house to Debby. During Tom's stay at Talbot, Mike visited Tom, who said that he had given Debby the house. Also, when Tom visited Mike and his wife Karen during the Thanksgiving holiday in 2001, Tom said that he had given the house and its contents to Debby. During a telephone conversation with Mike, Tom again said that he had given the house to Debby. At trial, Tom did not refute Mike's testimony but said that, in making these statements to Mike, he had added that Debby was supposed to reconvey his interest in the property after his rehabilitation. No one corroborated this assertion, and Debby denied it. The trial judge expressly found Tom to be a "very poor witness" who lacked credibility, and found Mike to be a credible witness. Although there is no dispute that Tom suffered a few relapses in 2001 and stayed at Talbot until April 2002, there is no proof that he was susceptible to Debby's dominance while he was there or that he lacked mental capacity when he confirmed to Mike that he had given the deeds to Debby. From these conversations, Tom's ratification of the conveyances to Debby can easily be inferred.
Tom also contends that the principle of "unclean hands" applies because Debby, a lawyer, procured the deeds while Tom was vulnerable and gave false testimony about her conversation with Chief Whitney. The purpose of the doctrine of unclean hands is to protect the interest of the public on grounds of public policy and for the protection of the integrity of the court; consequently, application of the doctrine depends on the trial judge's discretion as to whether the interests of equity and justice require application of the doctrine. Grable v. Grable, 307 Ark. 410, 821 S.W.2d 16 (1991); Laroe v. Laroe, 48 Ark. App. 192, 893 S.W.2d 344 (1995). In determining whether the clean hands doctrine should be applied, the equities must be weighed. Estate of Houston v. Houston, 31 Ark. App. 218, 792 S.W.2d 342 (1990). Even if Tom had obtained a ruling on this argument and preserved it for appeal, the doctrine would not apply here. The trial judge credited Debby's testimony and found that Tom ratified the deeds; there are simply no facts in this record that would support the application of the doctrine in this situation.
For these reasons, we affirm the trial judge's award of the house and lot to Debby.
In his second point, Tom argues that the trial judge committed error in making an unequal distribution of the marital property.1 A trial judge's unequal division of marital property will not be reversed unless it is clearly erroneous. Page v. Anderson, 85 Ark. App. 538, 157 S.W.3d 575 (2004).
Arkansas Code Annotated section 9-12-315 (Repl. 2002) provides in subsection (a)(1)(A) that all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable; in that event, the court shall make some other division that the court deems equitable, taking into consideration the following factors: (1) length of the marriage; (2) age, health, and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; (9) the federal income tax consequences of the court's division of property. The statute further states in subsection (a)(1)(B) that, when property is divided pursuant to these considerations, the court must state in the order its reasons for not dividing the marital property equally.
Section 9-12-315, however, does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Williams, supra. The statute vests the trial judge with a measure of flexibility and broad powers in apportioning property, non-marital as well as marital, in order to achieve an equitable distribution; the critical inquiry is how the total assets are divided. Id. The overriding purpose of the property-division statute is to enable the court to make a division that is fair and equitable under the circumstances. Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 442 (1990). We will not substitute our judgment on appeal as to what exact interest each party should have but will only decide whether the order is clearly wrong. Williams, supra.
Tom argues that the trial judge erred in placing so much importance on his dissipation of marital funds with his drug habit and contends that the judge's unequal division of the marital property amounts to punishment, pointing out that fault is not listed among the factors set forth in Ark. Code Ann. § 9-12-315(a)(1)(A). He asserts that the judge should have given more weight to the facts that Debby is in better health than he is and that she has always earned more and will likely continue to do so. Tom also emphasizes that the money he wasted was given to him by his parents. Additionally, he contends that Debby is not without responsibility for dissipation of the parties' assets because she was in denial of his drug and sexual addictions, even though she was aware of one of his affairs early in the marriage and on one occasion, caught him smoking crack cocaine on a cruise ship. According to Tom, Debby kept quiet so that she "could keep spending the Brown family money" and "hang on long enough" so that she could "possibly trick Tom" into placing the proceeds of the sale of AFCO Steel in joint accounts. We find no merit in these arguments.
Tom is wrong in contending that the trial judge considered fault in making the total award. Although, Tom's behavior constituted "fault," it also amounted to wanton, almost unbelievable, dissipation of the parties' marital assets. Even though most of their money came from Tom's parents, it became marital property when he deposited it in joint accounts and it remained so as he spent it on drugs and other women. Debby presented evidence that Tom wasted over $1 million of the parties' assets. Certainly, a spouse's dissipation of marital assets can properly be considered by the trial judge in dividing marital assets unequally. Keathley v. Keathley, 76 Ark. App. 150, 615 S.W.3d 219 (2001); see also Forsgren v. Forsgren, 4 Ark. App. 286, 630 S.W.2d 64 (1982).
Additionally, the trial judge took pains to point out that she could not punish Tom for what he had done and expressly considered the factors set forth in Section 9-12-315. She considered Debby's financial contribution to the marriage and her services as a housewife and mother; Debby's actions in preserving the marital assets; Tom's substantial nonmarital assets and his likelihood of inheriting more; the difference between the incomes available to Tom and Debby; Debby's need for retraining in her field; and the fact that, when Tom's trust terminates in 2007, he might waste his assets and jeopardize his children's security. We have no hesitation, therefore, in affirming the unequal division of marital assets.
Tom also argues that the trial judge erred in setting child support by imputing far too much income to him and in failing to consider the accounts he established for the children. According to Tom, the trial judge based her estimate of his imputed income on speculation and conjecture. The amount of child support a trial judge awards lies within her sound discretion and will not be disturbed on appeal absent an abuse of that discretion. Paschal v. Paschal, 82 Ark. App. 455, 117 S.W.3d 650 (2003).
It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002). The most recent revision of the child-support guidelines, Administrative Order No. 10: Arkansas Child Support Guidelines (January 31, 2002), defines income in Section II as "any form of payment, periodic or otherwise, due to an individual, regardless of source," less proper deductions for federal and state income tax, social security, Medicare, and railroad retirement, medical insurance paid for dependant children, and presently paid support for other dependents by court order. This definition is intentionally broad to encompass the widest range of sources consistent with this state's policy to interpret income broadly for the benefit of the child. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). Because the child-support guidelines are remedial in nature, they must be broadly construed so as to effectuate the purpose sought to be accomplished by their drafters. Pannell v. Pannell, 64 Ark. App. 262, 981 S.W.2d 531 (1998). After the trial judge determines the payor's income, she must refer to the family-support chart in setting the amount of support. Stepp v. Gray, 58 Ark. App. 229, 947 S.W.2d 798 (1997).
Tom argues that the trial court erred in imputing to him an annual income of $50,000 because he earned only $40,000 at his last job. At trial, however, Tom stipulated that an engineer in Atlanta would earn approximately $50,000 per year. It is well settled that an appellant may not complain on appeal that an action of the trial judge is erroneous if he induced, consented to, or acquiesced in that action. Dodson v. Dodson, 37 Ark. App. 86, 825 S.W.2d 608 (1992).
Tom also asserts that the trial judge should not have found the annual income from Industrial Realty Company to be $15,000 because, in fact, he drew only $9000. Debby introduced evidence that Industrial Realty Company distributed $9000 to Tom in 2002 and $38,054 to him in 2003. The judge, therefore, based her calculation of $15,000 in annual income to Tom from Industrial Realty Company on evidence, not speculation.
The imputing of a greater return on the trust fund than its actual yield of one percent was also error, Tom contends. According to Tom, the trial judge had no legal authority to dictate the manner in which a prudent man chooses to invest his money and complains that the judge's method is not recognized by Arkansas law. Tom's father explained the low rate of return by testifying that his primary goal was to preserve the trust's assets. He testified that he had been conservative in investing the assets of Tom's trust because of the current turmoil in the financial markets, but planned to slowly move more of the trust's assets into the stock market. Jim Shenep, who manages the trust, also stated that the trustees' investment philosophy was to gradually invest the funds. Although the trust's rate of return for 2003 was only a little over one percent, he predicted a yield of three percent in 2004. Additionally, Dennis Cooper, a certified public accountant, testified on behalf of Debby that the earnings from Tom's trust, which was invested in low-yielding, secure investments, could be increased to three or four percent by stretching out the maturity dates to four or five years. It is, therefore, clear that the trial judge based her decision in this regard on evidence, not speculation.
Tom further argues that the trial judge failed to give due consideration to his establishment of sizeable trust accounts for the children. Section V(b)(3) of Administrative Order No. 10 states that the creation of such accounts may be considered by the trial judge. Although the guidelines permit a trial judge to deviate from the amount set by the chart if the payor has established trust accounts for the children, she is not required to do so. Given the uncertainty as to whether Tom will dissipate the assets of his trust after it terminates in 2007, we cannot say that the trial judge abused her discretion in not deviating from the chart amount on this basis.
Another figure based on speculation, Tom claims, was the $400 to $500 per month that the trial judge estimated would be spent by Debby to insure herself and the children. Based on that figure, the judge ordered Tom to pay $200 per month for this purpose. Section III(g) of Administrative Order No. 10 provides that the court shall provide for the child's health care needs, including health insurance if available to either parent at a reasonable cost. Section V(b) states that the procurement of health insurance is among the factors that may warrant adjustment to the child support obligation. See also Huey v. Huey, ___ Ark. App. ___, ___ S.W.3d ___ (Feb. 23, 2005). Again, this was a discretionary call on the part of the trial judge, and in the absence of any demonstration by Tom that this amount is unreasonable, we find no error in this regard.
For these reasons, we cannot say that the trial judge abused her discretion in setting child support.
Bird and Roaf, JJ., agree.
1 Although the heading states that there was also error in the division of non-marital property, the brief only addresses the division of marital property.