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Moore v. Moore

Supreme Court of Arkansas

March 10, 2016

JOHN DAVID MOORE, APPELLANT
v.
NANCY MOORE, APPELLEE

Page 767

          APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT. 42BDR-12-71. HONORABLE DAVID MCCORMICK, JUDGE.

         Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks; and Danielson Law Firm, by: Elizabeth Danielson, for appellant.

         Gean, Gean & Gean, by: David Charles Gean, for appellee.

         RHONDA K. WOOD, Associate Justice. Special Justices CHAD L. ATWELL and DANIEL GREENBERG join in this opinion. BRILL, C.J., WYNNE, J., concur in part and dissent in part. BRILL, C.J., and WYNNE, J., dissent. DANIELSON and GOODSON, JJ., not participating.

          OPINION

Page 768

          RHONDA K. WOOD, Associate Justice

         Appellant John David Moore (" David" ) appeals a decree entered by the Logan County Circuit Court granting appellee Nancy Moore (" Nancy" ) a divorce on the ground of general indignities. He argues that the circuit court erred in dividing the growth of his business as a marital asset, awarding Nancy alimony in the amount of $5,000 per month, and considering the division of property and alimony in isolation. We granted the parties' joint petition for review of the court of appeals' decision dismissing the appeal because the divorce decree was not a final, appealable order. We hold that the decree is a final order and reverse and remand as to the circuit court's division of the growth of David's business and the alimony award for an entry of an order consistent with our findings herein.

         The parties, David Moore and Nancy Moore, were married on April 27, 2007. On June 18, 2012, Nancy filed for divorce. David answered and counterclaimed. The

Page 769

parties litigated the appropriate property distribution and alimony issues. Specifically, David requested an equal distribution of marital property. Nancy requested that the court also divide and award her half of the growth of David's company, Moore U.S. Mail Contractor, Inc., which was a nonmarital business. She contended that the growth in value of the business was a marital asset to be divided between the parties. David also contested the amount of alimony requested by Nancy.

         On February 5, 2014, the circuit court entered a divorce decree. In it, the circuit court determined that David owned the company prior to the marriage, and therefore, it was nonmarital property. However, the circuit court found that the company's increase in value was a marital asset because David spent a substantial amount of time during the marriage working to increase its value. The court also found that the company's stock value increased as a result of Nancy's participation in, and contributions to, the company. It concluded that the increase in the business's value during the marriage was $556,365.05 and awarded Nancy one-half of that amount.

         The circuit court also awarded Nancy $5,000 per month in alimony to be paid until she is sixty-five years old. The basis for this award was Nancy's financial need and David's income, as well as Nancy's health, education, and prior work experience. Notably, in 2012, Nancy underwent surgery to remove a brain tumor. She and others testified that she had continuing medical complications as a result of the procedure, including short-term memory loss, weakness, difficulties with depth perception, and panic attacks. The circuit court noted that Nancy's medical condition was the " most significant factor presented in support of her request."

         David appealed, arguing that the circuit court erred in awarding Nancy one-half of the growth of his business during the marriage and alimony of $5,000 per month until she is sixty-five years old. The court of appeals dismissed the appeal, finding that the divorce decree was not final for purposes of appeal, citing the following paragraph:

Plaintiff's Exhibits 37, 38, and 39 were three separate Warranty Deeds (legal description is attached as Exhibit " C" ) which described a third tract of real estate involved in this case. Those deeds were from different grantors but did not convey all of those grantors' interest in the same real estate to the Plaintiff and Defendant as tenants by the entirety. The court reduces the parties to tenants in common as to this tract of real estate and orders the same sold upon such terms and conditions as to which the parties may agree. If the parties are unable to agree upon the terms and conditions of sale after 180 days, then either party is free to petition to the court to have the same sold by the clerk of this court. All proceeds after costs of sale shall be divided equally between the parties.

Moore v. Moore, 2015 Ark.App. 115, at 1. The court of appeals noted that the decree directed the parties to come to an agreement and, in the event that they could not reach an agreement, required them to return to the court for an order for the property to be sold by the clerk. Id. The court held that the decree was not final because it did not fully dispose of the parties' property. Id. The court then dismissed the appeal without prejudice. Id. The parties jointly filed a petition for review in this court, arguing that the court of appeals' decision conflicted with prior holdings from this court, which we granted.

Page 770

          I. Finality

         The finality issue in this case is similar to that in Davis v. Davis, 2016 Ark. 64. For the same reasons recently expressed in Davis, we hold that the divorce decree is a final, appealable order. As in Davis, the decree in this case does not include language requiring the parties to return to court for further judicial action. Rather, it allows for alternative methods of property distribution and gives the parties a specific period of time to work out their differences as well as an enforceable judicial resolution if they are unable to reach an agreement within the time period set by the court. As it adequately addresses every issue presented by the parties and reserves no issues for later determination, the order is final and appealable. Accordingly, we vacate the court of appeals' opinion that the divorce decree is not a final, appealable order. Moreover, because this case involves a significant issue concerning statutory construction and the overruling of precedent, which are the province of this court, we proceed to address the merits of the appeal.[1]

         II. Standard of Review

          On appeal, divorce cases are reviewed de novo. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). We review the circuit court's findings pertaining to division of property and alimony and affirm them unless they are clearly erroneous or against the preponderance of evidence. Id.; Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). 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. Skokos, 344 Ark. at 425, 40 S.W.3d at 772. The appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Id. We give due deference to the circuit judge's position to determine the credibility of witnesses and the weight given to their testimony. Id. Furthermore, when we grant a petition for review, we consider the appeal as though it had been originally filed in this court. Bohannon v. Robinson, 2014 Ark. 458, 447 S.W.3d 585.

         III. Property Division

         For his first point on appeal, David claims that the trial court erred in finding that the increase in value of his business is a marital asset to be equally divided between the parties. David claims the circuit court wrongly interpreted the statute, and we review issues involving statutory interpretation de novo, as it is for this court to determine what a statute means. Dep't of Human Services v. Howard, 367 Ark. 55, 238 S.W.3d 1 (2006).

         David contends that the growth of a his nonmarital business remained nonmarital property under Arkansas Code Annotated section 9-12-315(b)(5) (Repl. 2015) and is not subject to division. He recognizes that this court has carved out an exception to the statute, but contends it was inapplicable to the facts in this case. In support of the property division, the circuit court utilized the " active appreciation" analysis we adopted in Layman v. Layman, 292 Ark. 539,

Page 771

731 S.W.2d 771 (1987). We do not assess whether the court correctly applied the " active appreciation" analysis to the facts because we find that this analysis directly conflicts with Arkansas Code Annotated section 9-12-315. We find merit in David's argument that the growth of the business is nonmarital property according to section 9-12-315(b)(5). The circuit court relied on our precedent involving active appreciation ...


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