*1 which resulted rulings there are no other adverse above, we trial out affirm the error. For the reasons set prejudicial court’s rulings judgment. JACKSON Emily Joy G.
Donald JACKSON 88-187 S.W.2d Court of Arkansas Supreme 20, 1989 February delivered Opinion *2 Arkansas, P.A., Herrods Herrod, E.H. ("Buzz”) by: appellant. Associates, P.A.,
Wilson & Lassiter, Jack T. by: appellee. Glaze,
Tom Justice. This appeal ensues from divorce case and involves marital issues that arise out of inheritance of stock and the certain later of her sister’s purchase one-half interest in that she and real-property her sister inherited from their events, mother. Both of these the inheritance and occurred when married property, appellee appellant. chancellor held no marital appellant acquired interest in either the stock or an real and in unpublished review court granted affirmed. This appeals court opinion, 29(l)(c). to Ark. Ct. R. pursuant Sup. real
We first the house and consider The sisters their mother. and her sister inherited from appellee By in the property. each one-half interest owned undivided husband, sister, and her appellant, with her agreement house, Valley in the Pleasant which is located moved into made im- Rock. Appellee Subdivision Little were on with monies testified provements funds, which monies from nonmarital stock were separate inherited from her mother. time, marital unrest.
At this experiencing *3 reason, her sister offered to sell For that stated that when appellee interest, bought her sister’s interest by her one-half appellee $67,850.31, her title in her name and sister taking paying alone her stockbro- separate which were funds withdrew from had ker account the stock that appellee account. That contained interest, from her sister’s inherited her mother. In purchasing the funds drawn from concedes that she first account, bearing a both joint checking stock account into funds, these depositing names. After $67,850.31, which was she wrote a check to her sister for payable that, when argues the full amount of the purchase. Appellant joint into the her nonmarital funds appellee placed parties’ account, one-half interest those checking a appellant acquired interest, funds, well the one-half which pur- sister’s chased with those funds. by 169, McEntire, McEntire 267 Ark. S.W.2d 241
In v. 590 (1979), by the recited the established rule that the estate court stated, the It entireties be created in may personal property. 1965) Ark. Code noting (now Stat. Ann. 67-552 (Supp. § a held in the Ann. 23-32-1005 that bank account (1987)), and wife of as husband designate names who themselves persons entireties and by is the such as tenants the persons death account is to the payable the of one the the persons, the entireties survivor. The further noted that an estate by court significant in a differs from estate aspect bank account in one only in the account until in real in that the estate exists leaving one funds or dies balance of the tenants withdraws such
63 the account that the funds withdrawn otherwise diverted from by the account one the tenants and reduced that by tenant’s ceases to be a of the estate the separate possession part Black, entireties . Seealso Black v. 199 Ark. 160-B,
In S.W.2d this court further discussed and held tenancy by entirety whether acquisition realty personalty, by who persons are husband wife an instrument by running them without of manner which conjunctively, specification take, they results in a usually by entirety. The court tenancy added that taking there is at least a that the in such presumption circumstances is The court added that the fact entirety. that the given consideration taken in the two little, names to one belong only any, is of if spouse significance where he or she is responsible being for the taken in both names as the is gift that there was a of an interest presumption wife, husband even have no though the wife may knowledge Ramsey of the transaction. court Importantly, held that the is and it strong, only can be overcome clear, unmistakable, positive, unequivocal, strong, and con- evidence, vincing is partially resulting because the alternate which, circumstances, trust the establishment of under requires degree of proof. *4 case, the concluded, In the present chancellor cor believe, we rectly that should be entitled to her appellee inherited funds, or nonmarital unless she did to the something non- destroy marital status those funds. had the to Clearly, appellee right withdraw the funds she in the joint account parties’ and, McEntire, as pointed out in the mere those depositing nonmarital funds into the parties’ bank account did not render them forever funds owned the entirety. The chancellor found that appellee merely her funds in “poured” nonmarital and out account, the parties’ checking so she would have a receipt 1 case, The court in proper McEntire offered a caveat that in a fraud some or other remedy may still be available to sustain an or action to recover funds withdrawn diverted by a co-tenant. 64 record with her sister —a of the real estate transaction
record
Service.
Revenue
necessary
deemed
for the Internal
to the
Also,
took title
judge
the trial
found
significantly,
her testimony
believed
obviously
and he
only,
house
her name
since
separately
her funds and property
intended to
she
keep
The appellee
discord.
marital
experiencing
the parties
obtain
they
suggestion
she rejected
testified
so,
because,
do
would
to
loan to
the sister’s
her name and the
the
in both
necessitate placing
exercised
further found the appellant
chancellor
appellant’s.
funds,
and he
no
and control over appellee’s
dominion
gift
of those
never intended to make
convinced that appellee
believe the
We
funds and
appellant.2
nonmarital
findings
respects.
in these
record
the chancellor’s
readily supports
however,
Our
does not end at this point.
inquiry,
the one-half interest
We next must decide whether
subject
her
marital
appellee purchased
from sister is
1987). Under
(Supp.
division under Ark. Code Ann. 9-12-315
§
§
either
9-12-315(b),
spouse subsequent
all property acquired by
of five
unless it falls within one
is marital
marriage
82, 740
294 Ark.
Wagoner,
See
statutory exceptions. Wagoner v.
261,
Ark.
Property
acquired
acquired
prior
Lofton,
App.
dissenting opinion
point,
this
On
refers to Lofton
(1988),
erroneously
reached a
that the court in
S.W.2d 635
concludes
Lofton
McEntire,
citing
holding
Lofton,
McEntire v.
different
to the
here. The court in
one
legal analysis
employed
as we have in this
same
S.W.2d 241
case,
that,
record,
reviewing
merely
no clear
but the
court
concluded
Lofton
convincing
presented
*5
that certain certificates
evidence was
to overcome the
case,
entirety.
we
deposit
In
instant
owned
as tenants
court,
convincing
presented
by holding
merely
evidence was
affirm the trial
that clear and
entirety.
ownership
to overcome
as tenants
devise, or descent.
by gift, bequest,
our
not
or
directly
court has
construed
Although
interpreted
jurisdictions,
with identical
foregoing
provi
other
exception,
Harris, Jr.,
sions,
See
have.
Ora Fred
The Arkansas Marital
Statute and the Arkansas
Court:
Property
Appellate
Tiptoeing
1,44(1984) (which,
UALRL.J.
Together Through the Tulips,!
in footnote
lists twelve
that
that embrace
states
have statutes
Stevens,
(Me.
this same
In Stevens v.
The fact that one
made
spouse
contributions to certain
does not
necessarily require
those contribu-
tions be recognized in the
division
divorce. It
not
certainly
our
intention
state an
opposite point
Potter,
view Potter v.
Appellant bonds Building certain First Federal bonds and Baptist pur with during chased the parties’ by appellee increase in value nonmarital funds and also to an interest We find in either contention. stock no merit appellee’s portfolio. acquire used nonmarital funds to Unquestionably, appellee that such bonds in and no evidence countermands question, no were more than purchases
therefore the definition of marital property pursu from excepted claim to an Concerning ant to 9-12-315(b)(2). appellant’s is (which he concedes stock appellee’s portfolio nonmarital), increase any the evidence is far from clear had an occurred. claims the portfolio values While appellant $175,000.00 when inher initial value of approximately stocks, initially her account was argues ited the the appellee $300,000.00 $313,936.00, at the time worth but had decreased and probate of trial. In the record with the accounts reviewing attached, we it to conclude and matters find petitions impossible (cid:127) with when the inherited stocks any certainty regarding conclude, gained as did the their into her stock We way portfolio. court of on which clearly this that there is evidence appeals point, issue in supports chancellor’s failure find this favor. in failing chancellor erred
Finally, argues .the *7 to state reasons for not an of certain making equal distribution personal is 9-12- property as under Ark. Code Ann. required § 315. The personal items to which makes appellant sheets, reference were on listed two one of which has been only sheets, abstracted. Without we how both are unable to determine or to whom all of the a say, items divided. Suffice it conflict exists between the to the worth of items each received, record, and based say we are unable to chancellor was clearly wrong. reasons,
For the above we affirm the trial court’s decision we reverse that of its except the house part holding concerning and remand with directions to award an $7,950.00. interest in such in the sum of Holt, C.J., Newbern, J., Purtle, J., concur. dissents. Newbern, Justice, David concurring. The majority opin- ion result, however, reaches the correct I find the discussion about tenancies entireties to be unnecessary confusing. When funds owned one are in a account spouse bank held jointly with the other spouse, strong there is presumption that the spouse who makes the deposit has transferred by gift. Ramsey Ramsey, in the funds to the other spouse Ark. (1975). S.W.2d 28 may be presumption “clear, overcome by unmistakable, positive, unequivocal, strong, and convincing evidence” as Fogleman Justice wrote in the Ramsey case and as the majority states here. We need opinion only say there was evidence of that before the chancel- type lor. As the gift overcome, Donald Jackson owned no of the part Emily Jackson used money Joy to purchase the sister’s interest in the house. That interest fell within the “acquired exchange” exception marital Ark. Code property. Ann. 9-12-315(b)(2). §
Holt, C.J., joins this opinion. Purtle, Justice, John I. dissenting. I cannot it . . . “trip Neither can majority. n the fantastic toe” so light spryly [o] marital Day every as a cure-all for Day I turn to me, law as written. for I must turn As question. (1987) states: 9-12-315(b) Code Ann. “marital (b) of this section purpose property” For either spouse subsequent means all property acquired the marriage except: devise, or
(1) by gift, bequest, Property acquired descent; ac- exchange
(2) Property acquired or in quired prior descent; devise, or by gift, acquired bequest, after a decree (3) Property acquired spouse board; divorce from bed and *8 valid the (4) by agreement parties; Property excluded (5) acquired The increase in value prior marriage. the
In the case the in the bank account present joint funds Moreover, the marriage. to the obviously acquired subsequent categories excepted bank account does not into of the five any fit the from basic rule. was
It issue us at this time seems to me the exact before v. 23 Ark. Lofton, in considered the Court of Appeals Lofton it was stated: 745 S.W.2d where App. real, is in the placed whether personal
[0]nce wife, without names of who are husband persons take, is a the there they manner in which specifying the own the tenants they convincing and it clear and evidence takes entirety overcome that presumption. involving two of property we are to have
Apparently going types will wife. One rule accounts held a husband and joint bank will Jacksons. We the Loftons and another to the apply case or a it is a Lofton deciding thereafter have whether problems Jackson case. from his
Lofton had inheritance acquired He in the The bought his brother’s half interest parents. property. In the purchased held be marital property. case inherited from present parents. the appellee she account some of these funds Subsequently placed joint with her used the purchase husband. These funds were turn sister’s half interest in the residence. can find no inherited I distinction in the facts of the two cases.
The does not offer to refund to the the amount which he had their money account. deposited $31,000 he received was from the sale he owned prior to the If marriage. the chancellor felt to trace the duty from her funds money separate through joint checking account, he should have also felt to trace the duty funds separate through checking account. Either appel- $31,000 lant given should be credit for the of non-marital funds account, he in the should not given be credit for the funds which she through “ran their checking account” to the sister’s interest house.
We should either accept “source-of-funds” theory “tracing” Potter, Potter recognized in S. W.2d 382 (1983), or it. reject We should not continue trip light fantastic through law.
Nelson
DROPE Vickie Eileen OWENS
*9
88-174
Supreme of Arkansas Opinion delivered February
[Rehearing denied April 1989.*] grant rehearing. would *Purtle, J., participating. not Glaze, J.,