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Tipton v. Tipton

Court of Appeals of Arkansas, Division I

November 8, 2017

MICHAEL WAYLAND TIPTON, SR. APPELLANT
v.
PAMELIA KAY TIPTON APPELLEE

         APPEAL FROM THE PERRY COUNTY CIRCUIT COURT [NO. 53DR-15-72] HONORABLE CATHLEEN V. COMPTON, JUDGE REVERSED AND REMANDED

          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.

          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 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 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 ...


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