Thurmon v. Thurmon
2016 Ark. App. 497
| Ark. Ct. App. | 2016Background
- Donald and Brittany Thurmon divorced; proceedings resulted in a July 2015 divorce decree granting Brittany custody of the parties’ two-year-old son, B.T., and dividing property. Donald appealed custody, property division, and denial of his posttrial motion.
- Evidence showed Brittany was primary caregiver during the marriage and had a schedule compatible with daycare drop-off/pick-up; Donald worked shifts (including graveyard) that limited availability.
- Testimony included allegations that Donald had been abusive to Brittany’s daughter and had hit Brittany; there was contested testimony about a 2014 incident in which Donald allegedly threatened suicide with a gun and police were called.
- The parties agreed Donald owned the Marrable Hill house before marriage; Brittany had lived there two years and had not been deeded title. The circuit court treated the house as marital property and ordered shared mortgage responsibility and Brittany’s possession until the child reached majority when the house would be sold.
- The decree ordered an equal division of 401(k) savings plans, but the record did not show vesting, contributions during marriage, or whether the account (or portions) were marital property.
Issues
| Issue | Plaintiff's Argument (Donald) | Defendant's Argument (Brittany) | Held |
|---|---|---|---|
| Custody of child | Awarding custody to Brittany is not in child’s best interest | Brittany is primary caregiver and best caretaker | Court affirmed custody to Brittany (not clearly erroneous) |
| Classification of Marrable Hill house | House was Donald’s premarital/nonmarital property; should be returned to him | Court’s treatment as marital property or homestead possession to Brittany is acceptable | Reversed and remanded: house is nonmarital unless circuit court justifies distribution under §9-12-315(a)(2) |
| Division of 401(k) account | Court erred by dividing without findings on vesting/contributions; unclear marital portion | Court ordered equal division of 401(k) plans | Remanded for findings and reconsideration of 401(k) division |
| Posttrial motion deemed denied | Trial court’s decree should be altered or amended | Deemed denial stands | Deemed denial affirmed in part (custody affirmed); property rulings reversed/remanded |
Key Cases Cited
- Fox v. Fox, 465 S.W.3d 18 (Ark. Ct. App. 2015) (standard of review for custody determinations)
- Davis v. Sheriff, 308 S.W.3d 169 (Ark. Ct. App. 2009) (courts may consider purposeful injury to other children when assessing best interests)
- Nicholson v. Harrison, 425 S.W.3d 851 (Ark. Ct. App. 2013) (courts may credit testimony concerning mental instability in custody analysis)
- Fell v. Fell, 473 S.W.3d 578 (Ark. Ct. App. 2015) (error to classify premarital home as marital property absent evidence)
- Wilson v. Wilson, 492 S.W.3d 534 (Ark. Ct. App. 2016) (requirement that property-division rulings include findings when dividing nonmarital property)
- Baker v. Baker, 429 S.W.3d 389 (Ark. Ct. App. 2013) (standard of review for property division: will be affirmed unless clearly erroneous)
- Hada v. Hada, 663 S.W.2d 203 (Ark. Ct. App. 1984) (homestead-possession principles when spouses hold property as tenants by the entirety)