FROM THE LOGAN COUNTY CIRCUIT COURT. 42BDR-12-71. HONORABLE
DAVID MCCORMICK, JUDGE.
G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks; and
Danielson Law Firm, by: Elizabeth Danielson, for appellant.
Gean & Gean, by: David Charles Gean, for appellee.
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
K. WOOD, Associate Justice
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.
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
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.
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.
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
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.
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.
Standard of Review
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.
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).
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,
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 ...