                                  Cite as 2017 Ark. App. 601

                 ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                        No. CV-17-266


MICHAEL WAYLAND TIPTON, SR.                        Opinion Delivered   November 8, 2017
                   APPELLANT
                                                   APPEAL FROM THE PERRY
                                                   COUNTY CIRCUIT COURT
V.                                                 [NO. 53DR-15-72]

                                                   HONORABLE CATHLEEN V.
                                                   COMPTON, JUDGE
PAMELIA KAY TIPTON
                                   APPELLEE        REVERSED AND REMANDED



                            PHILLIP T. WHITEAKER, Judge

       The Perry County Circuit Court granted appellee Pamelia Tipton’s complaint for

divorce. In the divorce decree, the court ordered an unequal division of marital property. On

appeal, appellant Michael Tipton argues that the circuit court erred as a matter of law by not

considering the factors set forth in Arkansas Code Annotated section 9-12-315(a) (Repl.

2015). We agree, and we reverse and remand.1

                                         I. Background

       Pamelia and Michael were married in 1992. In 2015, Pamelia filed a complaint for

divorce, and the matter proceeded to a contested hearing. Among the issues contested were

real property interests and retirement accounts. Both parties admitted that real estate was

       1
       This is the second appeal in this case. The first appeal was dismissed for lack of a final,
appealable order. Tipton v. Tipton, 2016 Ark. App. 511. A final order has since been entered,
and the matter is now properly before us.
                                 Cite as 2017 Ark. App. 601

purchased in both Pamelia and Michael’s names in 1993. In 2000, the couple conveyed the

property solely to Pamelia because of the possibility of a lien being placed on it by the Texas

Office of Child Support Enforcement.2 They later purchased a new mobile home for the

property but titled it solely in Pamelia’s name because she had better credit.

       With respect to their retirement accounts, Pamelia was fully vested in her own 401(k),

which had a value at the time of trial of approximately $9,900. The evidence concerning

Michael’s retirement was less clear. Pamelia said that she believed Michael had numerous

retirement funds, including a plan from Dean’s Pickle Plant in Atkins, a plan from Deltic

Timber, and a carpenter’s annuity through a millwright’s union. Michael stated that he did

not “know anything about those accounts.” Neither Pamelia nor Michael presented the court

with any evidence of vestment or value of Michael’s alleged retirement.

       At the conclusion of the trial, the circuit court ruled from the bench and appeared to

conclude that the real property was not marital property, citing Arkansas Code Annotated

section 9-12-315(b)(4), which excludes from the definition of “marital property” “property

excluded by valid agreement of the parties.” Relying on McClure v. McClure, 220 Ark. 312,

247 S.W.2d 466 (1952), the court determined that a husband is not entitled to the return of

real estate transferred to a wife during the marriage if the transfer was for the purpose of

defrauding his creditors. Accordingly, the court orally awarded the real property and the

trailer to Pamelia. The court directed that Pamelia would keep her retirement and be




       2
        Michael owed approximately $36,000 in child-support arrearages in Texas.

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responsible for the debt against it, and Michael was to keep his retirement accounts,

“whatever, wherever they are and whatever their value may be or become.”

       The court later entered a written decree that differed from its oral announcements from

the bench. With respect to the real property, the court’s written decree stated that it

       elects to make an unequal distribution of the parties’ real property because [Michael]
       admitted that the mobile home was placed in the name of [Pamelia] with the aim of
       keeping the home out of the hands of [Michael’s] creditors. . . . The court further finds
       that based upon the testimony of both parties, this property and the mobile home are
       placed in the name of [Pamelia] for the purpose of protecting same against certain
       potential liabilities that would be imposed upon [Michael], and that same was done by
       agreement of the parties.

              The court finds and orders that the title to the mobile home and the above
       described property shall be the property of [Pamelia] as shown on the purchase
       agreement for the mobile home and the quitclaim deed introduced herein[.]

In addition, the court determined that Pamelia was entitled to all of her 401(k) and any other

retirement plans and that Michael was entitled to all of his retirement plans.

       Michael filed a timely notice of appeal. On appeal, he argues that the circuit court

erred when it made an uneven distribution of marital assets without addressing the factors set

out in Arkansas Code Annotated section 9-12-315(a)(1).

       This court reviews cases involving the division of marital property de novo. Beck v.

Beck, 2017 Ark. App. 311, at 6, 521 S.W.3d 543, 546. With respect to the division of

property in a divorce case, we review the circuit court’s findings of fact and affirm them

unless they are clearly erroneous or against the preponderance of the evidence. Skokos v.

Skokos, 344 Ark. 420, 425, 40 S.W.3d 768, 771–72 (2001). A finding is clearly erroneous

when the reviewing court, on the entire evidence, is left with the definite and firm


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conviction that a mistake has been committed. Id. at 425, 40 S.W.3d at 772. In order to

demonstrate that the circuit court’s ruling was erroneous, an appellant must show that the

circuit court abused its discretion by making a decision that was arbitrary or groundless. Id.

We give due deference to the circuit court’s superior position to determine the credibility

of witnesses and the weight to be given their testimony. Sanders v. Passmore, 2016 Ark. App.

370, at 7, 499 S.W.3d 237, 243.

                                        III. Discussion

       Although Michael raises three separate points on appeal, they each present the same

question: Did the circuit court err in making an unequal division of marital property without

appropriate consideration of the factors established in Arkansas Code Annotated section 9-

12-315(a)(1)(A)? We conclude that the circuit court erred.

       Before considering the merits of Michael’s argument, however, we must address

Pamelia’s contention that the circuit court found that the property was nonmarital property

and that there was thus no need for the court to discuss the statutory factors. As noted above,

the court’s ruling from the bench seemed to indicate that the court was finding that the real

estate was not marital property. Pursuant to Arkansas Supreme Court Administrative Order

No. 2, however, an oral order announced from the bench does not become effective until

reduced to writing and filed. Baxley v. Baxley, 86 Ark. App. 200, 204, 167 S.W.3d 158, 160

(2004) (citing Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003)).

       In Baxley, the circuit court ruled from the bench that the divorcing couple’s assets were

nonmarital property. Its written decree, however, made an unequal distribution of the


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couple’s property and listed the nine factors set out in section 9-12-315(a)(1)(A)(i)–(ix). This

court held that the fact that the court enumerated the statutory factors in the written order

to support an unequal distribution indicated that “despite any misstatements from the bench,

the court was treating the investment accounts as marital property.” Baxley, 86 Ark. App. at

204, 167 S.W.3d at 161. Likewise, here, the circuit court expressly stated in its written order

that it was making an unequal distribution of property, a statement that would be unnecessary

if the court considered the property to be nonmarital. We therefore conclude that the written

order, which controls over the circuit court’s oral pronouncements from the bench, found the

property to be marital property.

       We thus turn to Michael’s argument that the circuit court erred in failing to consider

the section 9-12-315(a)(1)(A) factors in making its unequal distribution of marital property.

Under section 9-12-315(a)(1)(A), all marital property shall be distributed one-half to each

party unless the court finds such a division to be inequitable. In that case, the court shall make

some other division that the court deems equitable, taking into consideration a list of nine

factors:

       (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;


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       (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.

When property is divided unequally based on those factors, “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.” Ark. Code Ann. § 9-12-

315(a)(1)(B) (emphasis added). When a circuit court does not recite any of the statutory

reasons why an unequal distribution is equitable, reversal is required. Wadley v. Wadley, 2012

Ark. App. 208, at 7, 395 S.W.3d 411, 416; see also Watkins v. Watkins, 2012 Ark. App. 27,

388 S.W.3d 53 (In the absence of an explanation of an unequal distribution of marital assets,

the case was remanded for entry of an order that demonstrated proper consideration of the

statutory factors.).

       It is plain from the circuit court’s written order on the distribution of the marital

property, set out above, that it failed to consider or recite any of these factors. We therefore

agree with Michael that the circuit court’s order distributing the marital land, marital home,

and retirement accounts3 was entered in error.

       Reversed and remanded.

       3
       Pamelia’s retirement account was clearly marital property. She testified and introduced
documents showing that she was vested in her 401(k) plan at the time she filed for divorce.
Retirement benefits in which a person is vested at the time of the divorce are marital
property. See Womack v. Womack, 16 Ark. App. 139, 142, 698 S.W.2d 306, 308 (1985) (vested
retirement benefits not yet due and payable are marital property subject to division on divorce
when based on contributions made or services rendered during the marriage).

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       ABRAMSON and GLADWIN, JJ., agree.

       Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

       Branscum Law Offices, by: Herby Branscum, Jr., and Elizabetth Branscum Burgess, for

appellee.




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