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.
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.
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.
The $20, 000 Down Payment on the Lonoke House
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.
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).
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.
Money Spent on Paramour
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
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.