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Karolchyk v. Karolchyk

Court of Appeals of Arkansas, Division II

November 14, 2018

KEITH KAROLCHYK APPELLANT
v.
LISA KAROLCHYK APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTEENTH DIVISION [NO. 60DR-16-3594] HONORABLE VANN SMITH, JUDGE

          Hancock Law Firm, by: Sharon Kiel, for appellant.

          Destiny Law Firm, PLLC, by: Destiny McHughes and Rebecca J. Denison, for appellee.

          MIKE MURPHY, JUDGE.

         Keith and Lisa Karolchyck were married on September 22, 2007, and divorced by order of the Pulaski County Circuit Court on November 9, 2017. On appeal, Keith argues that the circuit court erred in awarding Lisa $20, 000 from a down payment on a home (the Lonoke House), $1500 for money Keith allegedly spent on his girlfriend while Keith and Lisa were married, $580 in moving expenses, and $2000 for repairs on another house (the Sherwood House). He further argues the circuit court erred in awarding Lisa an amount to be determined for half the reduction of the debt on the Sherwood house, spousal support, and attorney's fees. We affirm in part and dismiss in part.

         Our court reviews domestic-relations cases de novo on the record, but we will not reverse the circuit court's findings unless they are clearly erroneous. Hunter v. Haunert, 101 Ark.App. 93, 270 S.W.3d 339 (2007). A circuit court's finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. In order to demonstrate that the circuit court's ruling was erroneous, the appellant must show that the lower court abused its discretion by making a decision that was arbitrary or groundless. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). 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. Kelly v. Kelly, 2011 Ark. 259, 381 S.W.3d 817.

         I. The $20, 000 Down Payment on the Lonoke House

         Keith and Lisa purchased the Lonoke House in 2014. They purchased it for $179, 000 and paid $35, 068.53 at closing, $20, 000 of which Lisa had taken from her inheritance from her father. Before closing, Lisa withdrew the $20, 000 from an account in her name only where she kept her inheritance proceeds and deposited it into the couples' joint checking account. From that account, they wrote the check for the down payment. At the final hearing, Keith testified that he wanted to keep the house. The court found that the Lonoke House was marital property and awarded it to Keith, but it also ordered him to reimburse Lisa for half the equity in the home and $20, 000 for the portion of the down payment that came from her inheritance. Keith argues that he should not have to reimburse Lisa the $20, 000 because the money came from commingled funds and was thus marital property.

         Any discussion of division of marital property should begin with the relevant statutory provision. Arkansas Code Annotated section 9-12-315 (Repl. 2015) defines "marital property" as "all property acquired by either spouse subsequent to the marriage," subject to certain exceptions. There is a presumption that all property acquired during a marriage is marital property. Id. Relevant exceptions to the statute, however, include "property acquired prior to marriage, or by gift, or by bequest, or by devise, or by descent"; and "property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent." Ark. Code Ann. § 9-12-315(b).

         It is uncontroverted that Lisa's inheritance was her separate property. But Keith is correct that sometimes the nature of separate property may change to marital in the event commingling occurs. This result, however, occurs only when tracing the way nonmarital property and marital property have been commingled becomes so difficult as to be onerous. See Speer v. Speer, 18 Ark.App. 186, 191, 712 S.W.2d 659, 662 (1986). Here, there is no such difficulty. It is a well-settled rule that property acquired for a consideration paid in part out of community funds and in part out of separate funds of one of the spouses is in part community and in part separate property. McCormick v. McCormick, 2012 Ark.App. 318, at 6, 416 S.W.3d 770, 775. The two estates own such property by way of a sort of tenancy in common. Id. The mere pouring of nonmarital funds in and out of a joint checking account does not render them forever funds owned by the entirety. Jackson v. Jackson, 298 Ark. 60, 63-64, 765 S.W.2d 561, 562-63 (1989). We therefore affirm the trial court's ruling on this point.

         II. Money Spent on Paramour

         Keith next argues that it was error for the circuit court to order him to reimburse Lisa for $1500 he allegedly spent on his girlfriend while he and Lisa were still married. At trial, Keith admitted using marital funds to purchase concert tickets for himself and his girlfriend totaling $283.55. He also admitted taking his girlfriend out for meals, going on trips with her during the marriage, and buying gifts for her children. The only receipts introduced, however, were the ones for the concert tickets. Lisa did testify that she and Keith used to go out to eat two or three times a week, and that the two of them would spend about $100 to $150 eating out, but during the hearing even the court acknowledged that Lisa was only speculating as to how much Keith spent on his girlfriend's meals.

         It is permissible to have one spouse reimburse the other for improper expenses attributable to a paramour, and we have upheld decisions to do so. Bamburg v. Bamburg, 2011 Ark.App. 546, at 14-15, 386 S.W.3d 31, 40. But it is also axiomatic that one must present evidence to prove such an assertion. Id. Here, Keith argues that the $1500 sum was arrived at arbitrarily, and that it was therefore an abuse of discretion for the court to make such an award. However, in Bamburg, we affirmed despite any exacting calculation. There, the circuit court found the husband was entitled to $2500 in reimbursement "because some trips and entertainment were undeniable." Thus, like in Bamburg, because Keith admitted taking trips and spending money on his girlfriend and her children during the marriage, we cannot say that the circuit court clearly erred in ordering this amount of reimbursement.

         III. Mo ...


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