                                Cite as 2015 Ark. App. 590

                ARKANSAS COURT OF APPEALS
                                   DIVISIONS III & IV
                                     No. CV-15-176


                                                 Opinion Delivered   October 21, 2015

JAMES FELL                                       APPEAL FROM THE SALINE
                              APPELLANT          COUNTY CIRCUIT COURT
                                                 [No. 63DR-13-336]
V.
                                                 HONORABLE BOBBY D.
                                                 MCCALLISTER, JUDGE
CAMME FELL
                                 APPELLEE        AFFIRMED



                             LARRY D. VAUGHT, Judge

       Appellant James Fell appeals the decree of divorce and amended order entered by the

Saline County Circuit Court, finding, among other things, that (1) the home where he and

appellee Camme Fell had lived was marital property and ordering him to pay her $12,000 for

her interest in the equity in the home, and (2) the debt from four credit cards, totaling

$19,254, was marital debt to be split equally between the parties. We affirm.

       The following facts are not in dispute. In June 2007, James, single at the time, bought

a house for $111,000. He made an $11,000 down payment and put his name on the deed and

mortgage for the home. Soon after, Camme, his girlfriend at the time (who was pregnant with

their child), and her two children from a prior relationship, moved in. In September 2007,

the parties’ son, F.F., was born. In May 2008, James and Camme married. In December 2012,

James refinanced the house. Again, only his name was placed on the deed and mortgage.

James made all the mortgage payments for the home from his separate bank account.
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       In March 2013, Camme filed for divorce. At the hearing, Camme sought an interest

in the equity in the house, along with a determination as to whether the credit-card debt was

marital debt. James contended that Camme was not entitled to any interest in the equity of

the home because the home was his nonmarital property. He also argued that the credit-card

debt was Camme’s nonmarital debt.

       In addition to the undisputed facts, Camme testified that she and James had searched

for the home together and that while they were married they made several improvements to

the home. She said that they extended the driveway, added a covered patio, replaced the

flooring and carpet, repainted the interior, and added new cabinets and granite countertops

in the kitchen. Camme testified that the value of the home was $125,000. With regard to the

credit cards, she said that she opened the accounts in James’s name and that he was aware of

them. She added that James occasionally made payments on them and that the credit cards

were used to purchase Christmas presents and groceries. She testified that the debt was

approximately $19,000.

       James testified that it was never his intention for Camme to have an interest in the

house. He said that he, alone, found and bought the house and that he did not ask Camme

if she liked it. He stated that he made all the mortgage payments and that she made none. He

also testified that he knew that Camme was using credit cards to pay bills during their

marriage, although he never asked her what bills she was paying, and he was unaware of

these four particular credit cards. He said that he “definitely” did not know that the cards

were in his name. He testified that the credit-card debt was $18,000.


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       On February 12, 2014, the trial court entered a decree granting the divorce. Relevant

to this appeal, the trial court found that while the home had been purchased prior to the

marriage, “there [was] not any doubt in the mind of the Court that the intention of the

parties when this property was purchased was to make it a marital home and as such, they

have added to and treated the property as marital.” In dividing the $35,000 equity in the

home,1 the trial court found that James was entitled to his $11,000 down payment plus

$12,000 and that Camme was entitled to the remaining $12,000 equity. The trial court also

found that James was aware that the credit cards existed and that he may have paid the bills

from the credit cards during the marriage. As such, the court found that the credit-card debt,

totaling $19,254, was marital debt to be equally divided between the parties. James appealed

from the decree; however, his appeal was dismissed for lack of a final order. Fell v. Fell, 2014

Ark. App. 627. On remand, the trial court entered an amended order that resolved the

parties’ rights to the subject matter in controversy, and this appeal followed.

       With respect to the division of property, we review the trial court’s findings of fact

and affirm them unless they are clearly erroneous or against the preponderance of the

evidence; the division of property itself is also reviewed, and the same standard applies. Farrell

v. Farrell, 365 Ark. 465, 469, 231 S.W.3d 619, 622 (2006). 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. Id., 231 S.W.3d at 622. In order to



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       There was evidence that the value of the home was $125,000 and that the mortgage was
$90,000, leaving $35,000 in equity in the home.

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

court abused its discretion by making a decision that was arbitrary or groundless. Id., 231

S.W.3d at 622. We give due deference to the trial court’s superior position to determine the

credibility of witnesses and the weight to be given their testimony. Id., 231 S.W.3d at 622.



       James’s first point on appeal is that the trial court clearly erred in finding that the home

he bought before he was married was marital property. He claims that he used his separate

nonmarital funds to make the down payment; the home was titled and mortgaged in his

name; he paid all the mortgage payments from his separate bank account; and Camme never

contributed any funds to the mortgage. He also claims that the trial court clearly erred in

finding that his nonmarital home “morphed” into marital property based on the parties’

intent that the house was to be their marital home. According to James, he should have been

awarded all the equity in the home.

       Arkansas Code Annotated section 9-12-315(a)(1)(A) (Repl. 2009) provides that, at the

time a divorce decree is entered, all marital property shall be distributed one-half to each

party unless the court finds such a division to be inequitable. “Marital property” means all

property acquired by either spouse subsequent to the marriage, except property acquired

prior to marriage. Ark. Code Ann. § 9-12-315(b)(1). Based on section 9-12-315(b)(1), it is

clear that property acquired prior to marriage is nonmarital property. Farrell, 365 Ark. at 471,

231 S.W.3d at 623.




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       It is undisputed that James acquired the home prior to his marriage with Camme.

Therefore, the home was nonmarital property, and the trial court’s finding that his home was

marital property is clearly erroneous. Although the trial court incorrectly declared that the

home was marital property, the court did not equally divide the $35,000 equity in the home

pursuant to section 9-12-315(a)(1)(A). Instead, it treated the home as nonmarital property

under section 9-12-315(a)(2).

       Section 9-12-315(a)(2) provides that all nonmarital property shall be returned to the

person who owned it prior to the marriage unless the court shall make some other division

that the court deems equitable taking into consideration those factors enumerated in

subdivision (a)(1), in which event the court must state in writing its basis and reasons for not

returning the property to the party who owned it at the time of the marriage. Ark. Code

Ann. § 9-12-315(a)(2). Under this section—and consistent with the correct conclusion that

the home was nonmarital property—the trial court awarded all the equity in the home to

James less $12,000, which was awarded to Camme. Specifically, the trial court first found that

James was entitled to his $11,000 down payment. Instead of returning the remaining $24,000

equity to James, the court found that the parties had “added to” the home during the

marriage and awarded James and Camme each $12,000.

       The trial court’s distribution of a portion of James’s nonmarital property to Camme

is also supported in Arkansas case law. In Box v. Box, 312 Ark. 550, 552, 851 S.W.2d 437,

439 (1993), our supreme court stated that “[e]arnings acquired subsequent to marriage are

classified as marital property.” Id. at 554, 851 S.W.2d at 440 (citing Day v. Day, 281 Ark.


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261, 663 S.W.2d 719 (1984); Ark. Code Ann. § 9-12-315(b)). The court further stated that

a trial court may find that “a nonowning spouse is entitled to some benefit by reason of

marital funds having been used to pay off debts on the owning spouse’s nonmarital

property.” Id. at 554–55, 851 S.W.2d at 440 (citation omitted). Citing the trial court’s

discretion to divide both marital and nonmarital property pursuant to section 9-12-315(a),

the court reversed and remanded the trial court’s refusal to consider the use of marital funds

to pay down the debt on the appellee’s nonmarital property. Box, 312 Ark. at 555, 851

S.W.2d at 440. The supreme court then affirmed the trial court’s division of the increase in

the value of the appellee’s nonmarital home based on the improvements made to it using

marital funds. Id. at 556–57, 851 S.W.2d at 441 (citing Ark. Code Ann. § 9-12-315(a)); see

also Jones v. Jones, 2014 Ark. 96, at 5, 432 S.W.3d 36, 40 (holding that nonmarital property

cannot transform into marital property by virtue of the expenditure of marital funds to

reduce debt or make improvements; yet citing with approval the holding in Box that a

nonowning spouse is entitled to some benefit when the proof establishes that marital funds

have been expended to improve or reduce the debt on the other spouse’s nonmarital

property).

       Under our de novo review in division-of-marital-property cases, Gilliam v. Gilliam,

2010 Ark. App. 137, at 7, 374 S.W.3d 108, 114, we must consider the evidence that marital

funds were used to pay the mortgage and make improvements on James’s house. Thus, this

record supports a finding that Camme was entitled to “some benefit.” Accordingly, we hold




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that the trial court did not clearly err in awarding her a $12,000 interest in the equity of the

nonmarital home, and we affirm on this point.

       James’s second point on appeal is that the trial court clearly erred in ordering the

parties to equally divide the debt from four credit cards. He conceded that he knew Camme

had been using credit cards in general to pay bills, but he contends that he did not know

these particular credit cards existed or that they were in his name.2 The trial court did not

believe James. The trial court, in its letter opinion, found that “the law doesn’t allow

someone to hide their eyes as debt is being incurred to avoid responsibility for it.” It further

found that there was no evidence that James was unable to determine the existence of the

accounts and that the evidence showed that he did take over all the accounts at the time of

the divorce. The trial court stated, “[James] could have stopped these [debts] from being

incurred, but instead chose to place his head in the sand.” In contrast, the trial court credited

the testimony of Camme, who said that James knew about the credit cards, that he

occasionally made payments on them, and that she only used them to pay for marital items

(groceries and Christmas gifts).

       In reviewing the trial court’s findings, we defer to the court’s superior position to

determine the credibility of witnesses and the weight to be accorded to their testimony.

Keathley v. Keathley, 76 Ark. App. 150, 157, 61 S.W.3d 219, 224 (2001). Because the trial

court’s findings on James’s second point on appeal are primarily credibility findings, which


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        He also argues that there was insufficient evidence presented to support the trial court’s
findings that the debt on the four credit cards was $19,000. However, he never made this
argument below, and it is not preserved for appeal. Finley v. Farm Cat, Inc., 103 Ark. App. 292,
297, 288 S.W.3d 685, 690 (2008) (holding that an issue not raised below is not preserved for
appellate review).

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we do not disturb, we affirm on this point and hold that the trial court was not clearly

erroneous in finding that the credit-card debt was marital to be equally divided between the

parties.

       Affirmed.

       KINARD, GRUBER , and GLOVER , JJ., agree.

       VIRDEN and HIXSON , JJ., dissent.

       BART VIRDEN, Judge, dissenting. I agree with the majority that the lower court’s

findings that the credit-card debt was marital property to be equally divided was not clearly

erroneous. I write separately because I disagree with the conclusion that the award of $12,000

representing Camme’s equity interest in James’s nonmarital property was appropriate in this

instance.

       With respect to the division of property, we conduct a de novo review, and we will

affirm the trial court’s findings of fact unless they are clearly erroneous. Farrell v. Farrell, 365

Ark. 465, 469, 231 S.W.3d 619, 622 (2006). Here, the lower court found “that the entirety

of the marital home is marital property with the exception of the initial $11,000 down

payment,” and that “[t]he conduct of the parties” led the court to believe that “the intention

of the parties when this property was purchased was to make it a marital home and as such,

they have added to and treated the property as marital.” Because James owned the property

prior to marrying Camme, the finding that the home was marital property was clearly

erroneous, and the majority agrees. See Box v. Box, 312 Ark. 550, 554, 851 S.W.2d 437, 440

(1993) (“Appellee owned these properties prior to marrying appellant. Section 9-12-315(b)(1)


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therefore excepts these two properties from the definition of marital property. In other more

affirmatively phrased words, these two properties are classified as non-marital properties.”).

       Our division-of-property statute requires that all marital property shall be distributed

one-half to each party unless the court finds such a division to be inequitable, in which case

it may make some other division after considering the factors enumerated in the subdivision

of the statute. Ark. Code Ann. § 9-12-315(a)(1)(A). It further provides that all other property

shall be returned to the party who owned it prior to marriage, unless it deems some other

division more equitable, again taking into consideration the (a)(1) subdivision factors. Ark.

Code Ann. § 9-12-315(a)(2).

       The majority agrees that the trial court’s finding that the home was marital property

is clearly erroneous. Using its power under a de novo review, it contends, however, that the

award itself was not clearly erroneous because the lower court “treated the home as non-

marital property under section 9-12-315(a)(2),” and because Camme was entitled to “some

benefit” because marital funds were used to pay the mortgage and make improvements on

James’s separate property.

       While I agree that, pursuant to a proper analysis under Box and its successors, Camme

is indeed entitled to some interest in the home and its equity, the majority’s reasoning

confuses the difference between “equitable” and “equal” and places itself in the position of

the trial judge. Furthermore, to claim the trial court “treated the home as non-marital

property” categorically ignores the unambiguous wording of the trial court that “that the




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entirety of the marital home is marital property with the exception of the initial $11,000

down payment.”

       If the lower court had been correct that the home, less the down payment, was marital

property, then returning the $11,000 down payment to James and then making the equal

distribution of $12,000 to each party would have been appropriate under our statute. But

because the lower court erred in concluding the home was marital, it could not have possibly

taken into consideration the (a)(1) subdivision factors to make “some other division” as

required in section 9-12-315(a)(2). Nor can I say that the one sentence provided in the order

that “the intention of the parties when this property was purchased was to make it a marital

home and as such, they have added to and treated the property as marital” adequately satisfies

the statutory requirement that, in making such a division “the court must state in writing its

basis and reasoning for not returning the property to the party who owned it at the time of

the marriage.” Ark. Code Ann. § 9-12-315(a)(2).

       To affirm here would require us to act as a super fact-finder and to rely too heavily on

conjecture. That I will not do. If, in fact, the trial court had found it equitable to award “some

benefit” to Camme from James’s separate property, it should have stated its reasoning for

doing so pursuant to the statute. As such, I would reverse and remand with the instruction

to divide the property in a manner consistent with section 9-12-315(a)(2) and our supreme

court’s holding in Box.

       HIXSON, J., joins.

       Gregory E. Bryant, for appellant.


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Camme Fell, pro se appellee.




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