Banks v. Banks

2019 Ark. App. 166

574 S.W.3d 187

Stanley BANKS, Appellant

v.Barbara BANKS, Appellee

No. CV-18-658

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: March 13, 2019

Robertson, Oswalt & Associates, Little Rock, by: Chris Oswalt, for appellant.

Wynne Law Firm, by: Tom Wynne, for appellee.

ROBERT J. GLADWIN, Judge Stanley Banks and Barbara Banks were divorced in the Dallas County Circuit Court by decree filed April 23, 2018. Stanley appeals, arguing that the trial court clearly erred by (1) granting an unequal division of property; (2) failing to cite its reasons for the unequal division; and (3) awarding alimony to Barbara. We affirm.

I. Facts

The Bankses were married June 3, 1995, and separated October 28, 2015. Barbara filed for divorce on October 11, 2017, alleging eighteen months' separation. When the parties could not reach an agreement on the division of marital property and debt or alimony, a final hearing was held on April 16, 2018.

Barbara testified that she works for the Arkansas Department of Human Services and had worked for the State of Arkansas for twenty-four years. Her sole retirement account is with the Arkansas Public Employees Retirement System (APERS), and she did not know how much it is worth. She said that Stanley had worked for Shippers, Georgia Pacific, and Union Pacific during their marriage, and he had a retirement account worth $ 102,000 and another account worth $ 12,000. She said that there was no debt on their house, worth $ 39,500, and she asked that she be awarded the house and her vehicle, a Cadillac CTS on which she owed $ 14,172.56. She said that the household furnishings were worth $ 1500. Barbara listed several vehicles owned by the couple, including her Cadillac CTS and Stanley's Cadillac DTS. She also said that Stanley had a Hayabusa motorcycle worth $ 5470 with no debt, and they had a 2004 Pontiac Grand Prix, a 1994 Grand Am, a 1997 GMC truck, a 1999 GMC truck, and a 2008 GMC Denali.¹

Barbara said that it was Stanley's habit to keep cash both in his vehicle's glove box and in his briefcase. She said that she found $ 6000 in his car in July before their separation, and she believed he kept that much or more in his briefcase. She estimated that he had $ 10,000 cash when they separated.

Barbara said that she had accumulated debt in her name during the marriage. She owed money to Capital One; the IRS; JCPenney; Best Buy; a collection agency; TJ Maxx; RCA; Fordyce Bank & Trust; Discover; Exxon; Avenue; the Children's Place; Credit One; Midland Funding; her doctor; and Jefferson Regional Medical Center. Barbara said that she had paid off one marital debt—Midland Funding in the amount of $ 2,095.32—and she admitted on cross-examination that the Fordyce Bank & Trust loan was used in part to pay the Midland Funding debt. She also listed her vehicle debt of $ 14,172.56, which she accrued after the parties' separation, and Stanley's vehicle debt of $ 10,000. Barbara proposed that she be responsible for all the debt except for the $ 10,000 owed by Stanley on his vehicle—leaving her with $ 29,710.76 in debt.

Barbara alleged that Stanley's income is $ 6,148.84 a month and requested $ 1000 a month in alimony, which she claimed would give her $ 304 each month after expenses and leave Stanley with $ 467 a month after expenses. She said on cross-examination that his monthly income included employer-paid per diem allowance for travel.

Stanley testified that his tax returns are the best reflection of his income and that his income varies, leaving him without a specific biweekly amount. He asked that the trial court use his tax returns to determine his income. Stanley also introduced exhibits that listed both his credit card and IRS debts totaling more than $ 4000. He said that he owes $ 13,255.11 on his vehicle and claimed that his monthly net pay is $ 3,544.50. His affidavit of financial means reflected that his expenses are $ 5,045.96 a month.

The trial court issued its decree on April 23, 2018, and it states as follows:

4. PROPERTY. The Court finds the following distribution of property to be equitable:

The Plaintiff is awarded the following property: the residence at 411 North Oakley, the 2011 Cadillac CTS, the 2004 Pontiac Grand Prix, one-half (1/2) of Defendant's Union Pacific Retirement account, one-half (1/2) of her own Arkansas Public Employee Retirement System (APERS) account, and whatever funds presently exist in the parties' joint bank account.

The Defendant is awarded the following property: the 2011 Cadillac DTS, the 1994 Pontiac Grand Am, the GMC truck, the GMC Denali, the 2008 Suzuki Hayabusa Motorcycle, one-half (1/2) of his own Union Pacific Retirement account, one-half (1/2) of Plaintiff's APERS account, all of his ITW Retirement Account, and all of the cash he admitted to possessing and withholding from Plaintiff at and around the time of the separation which the Court finds would well exceed $ 6,000.00.

1. DEBTS. The Court makes the following debt distributions:

The Plaintiff shall be responsible for the following marital debts: Capital One ($ 1,584.06); IRS/2015 ($ 983.46); IRS/2016 ($ 1,200.00); JCPenney ($ 386.46); LAC Collections ($ 65.51); Best Buy ($ 1,521.72); TJ Max/Synchrony Bank ($ 607.21); RCA ($ 50.00); Fordyce Bank & Trust ($ 2,703.27); Discover Card ($ 1,337.17); Exxon ($ 326.45); Dr. Brotherton ($ 64.67); Jefferson Regional Medical Center ($ 232.00); Avenue ($ 354.05); Credit One ($ 1,827.85); Children's Place ($ 199.00); Midland Funding ($ 2,095.32); and GM Financial for the 2011 Cadillac CTS ($ 14,172.56).

The Defendant shall be responsible for the following marital debts: Sears Credit Card ($ 1,091.49); Best Buy ($ 1,158.00), IRS taxes owed for 2014, 2015, 2016, and 2017; debt on the 2011 Cadillac DTS (approximately $ 14,000.00); and other credit card debt in Defendant's name.

2. ALIMONY. The Court finds after considering the financial circumstances of both parties; the financial needs and obligations of both; the couple's past standard of living; the amount and nature of the income, both current and anticipated, of both husband and wife; the extent and nature of the resources and assets of each of the parties; the amount of income of each that is spendable, the amounts which, after entry of the decree, will be available to each of the parties for the payment of living expenses; the earning ability and capacity of both husband and wife; property awarded or given to one of the parties, either by the court or the other party; the disposition made of the homestead or jointly owned property; the relative fault of the parties and their conduct, both before and after separation, in relation to the marital status, to each other and to the property of one or the other or both; and the duration of the marriage; that the Plaintiff should receive spousal support. Defendant shall pay the amount of $ 500.00 per month for a period of forty-eight (48) months at which time the support shall cease. Support shall cease earlier if the Plaintiff remarries prior to the conclusion of the forty-eight months.

Stanley's appeal timely followed.

II. Applicable Law and Standard of Review

Arkansas Code Annotated section 9-12-315(a) (Repl. 2015) provides:

At the time a divorce decree is entered:

(1)(A) All marital property shall be distributed one-half (½) 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:

(i) The length of the marriage;

(ii) Age, health, and station in life of the parties;

(iii) Occupation of the parties;

(iv) Amount and sources of income;

(v) Vocational skills;

(vi) Employability;

(vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;

(viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and

(ix) The federal income tax consequences of the court's division of property.

(B) When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter[.]

We review divorce cases de novo. Wyatt v. Wyatt , 2018 Ark. App. 177, 545 S.W.3d 796. In Steeland v. Steeland , 2018 Ark. App. 551, at 4–5, 562 S.W.3d 269, 273, we stated,

With respect to the division of property in a divorce case, we review the trial court's findings of fact and affirm them unless they are clearly erroneous or against the preponderance of the evidence. Brown v. Brown , 373 Ark. 333, 284 S.W.3d 17 (2008). 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. Jones v. Jones , 2014 Ark. 96, 432 S.W.3d 36.

Trial courts in traditional equity cases have broad powers to distribute the property in order to achieve an equitable division. Russell v. Russell , 2013 Ark. 372, 430 S.W.3d 15. The trial court is vested with a measure of flexibility in apportioning the total assets held in the marital estate upon divorce, and the critical inquiry is how the total assets are divided. SeeCanady v. Canady , 290 Ark. 551, 721 S.W.2d 650 (1986). 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. Id.

Marital property cannot always be divided exactly equally and in kind. Jones, supra. Stated differently, the property-division statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably.

McCormick v. McCormick , 2012 Ark. App. 318, 416 S.W.3d 770 ; Coatney v. Coatney , 2010 Ark. App. 262, 377 S.W.3d 381. We will not substitute our judgment on appeal as to the exact interest each party should

...