John Edward Aubrey v. Laurie Leigh Aubrey
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION
DIVISION III
CA061299
7 November 2007
JOHN EDWARD AUBREY,
APPELLANT
AN APPEAL FROM THE POPE
COUNTY CIRCUIT COURT
[DR04861]
v.
LAURIE LEIGH AUBREY,
APPELLEE
THE HONORABLE GORDON WILLIAM
MCCAIN JR., CIRCUIT JUDGE
AFFIRMED
This divorce case has boiled down to a dispute over $12,975.02 that Laurie
Aubrey inherited in 2004. Shortly after she inherited the money, it was deposited into
a checking account. Within two months, all of the inheritance had been spent, and her
husband John filed for divorce. The circuit court found that the money was not marital
property, and ordered John to repay Laurie the entire amount. The court also refused
to reopen the record after the divorce hearing to allow John to present additional
evidence about the account. John appeals both rulings.
At the hearing, the parties agreed that the inheritance started out as Laurie’s
separate property. The dispute was about the nature of the account into which the money
was deposited. The proof about this bank account was mostly testimonial. John said
that he and Laurie agreed to deposit the money into what he called their joint account.
He claimed they agreed to use the money to pay bills and household expenses. The
evidence presented at the hearing showed that only John spent the inheritance money,
not Laurie. Laurie said that John handled all of their finances. She said she made it
clear to John that she intended the inheritance to be held separately for her daughter’s
(John’s stepdaughter) education.
If the money was deposited into a “joint account,” then that act created a legal
presumption that John and Laurie owned the money as tenants by the entirety. Lofton
v. Lofton, 23 Ark. App. 203, 204–05, 745 S.W.2d 635, 636–37 (1988). Laurie could
overcome this presumption only by clear and convincing evidence that she did not
intend to make a gift of a onehalf interest to John. Lofton, 23 Ark. App. at 206, 745
S.W.2d at 637.
After hearing testimony from both sides, the circuit judge ruled from the bench
that there was no evidence of a joint account other than John’s testimony and that he did
not believe John. The judge described John’s attitude about money as: “what was his,
was his, what was theirs was his, and what was hers was his.” Because the court found
that “[the account] was not a real joint account,” Laurie did not have to rebut the
presumption that she intended to make a gift. The court further found that:
[T]he $12,975.02 was to be the separate property of [Laurie] which was
2
to be deposited into the bank account and was to be held for the use and
benefit of [Laurie’s] daughter. The Court finds [Laurie’s] testimony to be
credible on this issue and the Court finds this to be [Laurie’s] $12,975.02
separate property.
The circuit court then ordered John to repay Laurie the $12,975.02.
The first question for us is whether the court’s credibilitybased ruling was clearly
erroneous or clearly against the preponderance of the evidence. Cuzick v. Lesly, 16
Ark. App. 237, 240, 700 S.W.2d 63, 65 (1985). It was not. There is evidence in the
record to support the court’s decision. Both parties testified about their version of
events. The judge based his decision on the witnesses’ credibility—a matter on which
we defer to the circuit court’s judgment. Meinholz v. Meinholz, 283 Ark. 509, 512, 678
S.W.2d 348, 350 (1984). When there are two permissible views of the evidence, the
circuit court’s choice between them is not clearly erroneous. Rymor Builders, Inc. v.
Tanglewood Plumbing Co., __ Ark. App. __, __, __ S.W.3d __, __ (October 10, 2007).
Two weeks after trial, but before the circuit court entered its final order, John
moved to reopen the record so that he could introduce bank records and a letter from
Laurie. The records showed that the account was a joint account. They also showed
that Laurie knew it was a joint account and even withdrew money from it. The second
question before us is whether the circuit court abused its discretion when it refused to
reopen the record. Sugarloaf Development Co. v. Heber Springs Sewer Imp. Dist., 34
3
Ark. App. 28, 34, 805 S.W.2d 88, 92 (1991).
The belated evidence was certainly relevant. Though we cannot be sure what
impact it would have had on the circuit court’s ultimate decision about the nature of the
account, the evidence seems weighty. John would have had grounds for his motion or
for a new trial if these documents had been newly discovered evidence that he could not,
with reasonable diligence, have discovered and produced at the hearing. Ark. R. Civ.
P. 59(a). But that is not what happened.
The parties knew long before the hearing that the bank account would be at issue.
And the documentary evidence was as readily available for the year and a half before
the hearing as it was two weeks afterward. That this evidence now seems so important
from the vantage point of the circuit court’s ruling does not trump John’s failure to
timely produce it. Instead, the circumstances presented an occasion for discretionary
judgment. Whether achieving a more perfect justice between these parties outweighed
the law’s preference for finality after the trial was for the circuit court to decide—by
exercising its sound discretion informed by all the circumstances of the case. We see
no abuse of that discretion in the court’s refusal to reopen this record. Sugarloaf
Development Co., supra.
Affirmed.
PITTMAN, C.J., and GRIFFEN, J., agree.
4
5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.