FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66DR2009-580] HONORABLE JIM D. SPEARS, JUDGE
IN PART; REVERSED IN PART; AND REMANDED
Clark, Butt, Carithers & Taylor, PLC, by: Constance G.
Clark and William Jackson Butt II, for appellant.
C. Williams and Nancy A. Martin; and Smith, Cohen &
Horan, PLC, by: Matthew T. Horan, for appellee.
J. GLADWIN, Judge
"Cindy" Farrell and Hansford "Hank"
Farrell were divorced by decree entered in November 2011.
Cindy appeals for the third time and argues that the
Sebastian County Circuit Court should have provided a more
equal distribution of the marital assets and that the court
erred in denying her requests for alimony and attorney's
fees. We agree that the circuit court's division of the
marital property was not equitable to either party.
Accordingly, we reverse in part, affirm in part, and remand.
was a marriage lasting more than thirty years. The parties
agreed that all of their substantial amount of property was
marital property. The major asset and the crux of this
dispute is Hank's minority interest in a conglomerate of
closely held family businesses referred to by the circuit
court and the parties as the Farrell-Cooper Companies. He
also owns an interest in what the parties called the Texas
entities or ventures. The circuit court valued the marital
interest in the Farrell-Cooper Companies at $9.9 million
after applying a discount, with the entire interest being
awarded to Hank. Cindy was awarded the remaining marital
property, which included the proceeds from the sale of the
marital home, another house in Fort Smith, and the
parties' IRA and 401K accounts, with a total value of
approximately $1.045 million. Cindy was also awarded lifetime
alimony to compensate for the unequal property division.
Cindy's appeal of the decree led to our opinion in
remand from Farrell I, the circuit court valued the
Texas entities at $1.6 million, with each party's share
valued at $800, 000. The court then applied a thirty-five
percent minority discount to Cindy's share, with her
share calculated at $670, 148.58. This brought Cindy's
share of the marital estate to approximately $5.2 million.
The Texas entities were assigned, in their entirety, to Hank.
The court increased Cindy's alimony to $13, 000 per
month. Cindy also appealed this decision.
Farrell II, we noted lack of clarity in the circuit
court's ruling. There was uncertainty as to whether the
periodic payments labeled "alimony" were
traditional alimony or payments for Cindy's share of the
marital property. We noted that the court appeared to make an
unequal distribution of the marital estate without stating
the basis for such a division, as required by Arkansas Code
Annotated section 9-12-315(a)(1)(B) (Repl. 2015). We also
stated that the fact Hank was awarded all of the parties'
income-producing property while Cindy had to wait many years
before she received her full share of the marital estate was
a concern. The circuit court was directed to consider whether
Hank should be required to obtain a loan to pay Cindy for her
share of the marital property. We further suggested that the
court consider some type of security for the payments.
Finally, we granted the circuit court permission to
reconsider whether Cindy should receive "traditional,
" need-based alimony and any possible tax consequences.
the remand from Farrell II, the circuit court
confirmed that the monthly payments to Cindy were intended to
compensate her for her share of the marital estate. The court
conducted a hearing on November 12, 2015, to determine
whether Hank should be required to obtain a loan to pay Cindy
and what security could be provided to Cindy for the payment
of the money owed her. During the hearing, the parties
presented evidence addressing whether Hank would be able to
obtain a loan with which to pay Cindy for her share of the
marital estate. Cindy also proposed that Hank sign a note to
her in the amount of approximately $4.2 million on very
conclusion of the hearing, the circuit court asked both
parties to submit proposed findings of fact and conclusions
of law. The court later adopted the findings of fact and
conclusions of law submitted by Hank. The court concluded
that Hank was unable to obtain a loan from a commercial bank
and rejected Cindy's proposal that Hank sign a promissory
note in her favor secured by his interest in the family
businesses. The court found that such an arrangement would be
unfair to Hank. The court also denied Cindy's request for
need-based alimony and denied her petition for attorney's
fees. A decree incorporating the findings and conclusions was
entered on February 4, 2016. This appeal followed.
earlier appeals, we set forth our standard of review as
On appeal, we review divorce cases de novo. 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. With respect to the division of
property in a divorce case, we review the circuit court's
findings of fact and affirm unless those findings are clearly
erroneous. The obligations imposed upon a trial court by our
property-division statute are quite exacting. Arkansas Code
Annotated section 9-12-315(a) (Repl. 2009) provides that
"[a]ll marital property shall be distributed one-half to
each party unless the court finds such a division to be
inequitable." The court may make some other division
that it deems equitable; however, when it decides not to
divide the property equally between the parties, it must
recite its basis and reasons for the unequal division in its
Farrell I, 2013 Ark.App. 23, at 6, 425 S.W.3d at 829
(alteration in original) (citations omitted). We have ...