{ "id": 6140958, "name": "Lonnie Wayne COPELAND v. Barbara Elaine COPELAND", "name_abbreviation": "Copeland v. Copeland", "decision_date": "2003-12-17", "docket_number": "CA 03-482", "first_page": "303", "last_page": "309", "citations": [ { "type": "official", "cite": "84 Ark. App. 303" }, { "type": "parallel", "cite": "139 S.W.3d 145" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "975 S.W.2d 882", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6139459 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/63/0187-01" ] }, { "cite": "63 Ark. 187", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721549 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/63/0187-01" ] }, { "cite": "53 Ark. App. 41", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136826 ], "weight": 4, "year": 1996, "pin_cites": [ { "parenthetical": "Emphasis added." } ], "opinion_index": 0, "case_paths": [ "/ark-app/53/0041-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-12-315", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "year": 2002, "pin_cites": [ { "page": "(a)(l)(B)" }, { "page": "(a)(l)(A)(i)" }, { "page": "(a)(l)(A)" } ], "opinion_index": 0 }, { "cite": "295 Ark. 102", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893767 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0102-01" ] }, { "cite": "76 Ark. App. 150", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138960 ], "weight": 4, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/76/0150-01" ] }, { "cite": "4 Ark. App. 27", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136377 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/4/0027-01" ] } ], "analysis": { "cardinality": 626, "char_count": 13979, "ocr_confidence": 0.738, "pagerank": { "raw": 2.840773124414942e-07, "percentile": 0.8398943336078667 }, "sha256": "c0844c9536a738401a9a84f9fd9fa941f0bf697f89ca6bd7208cad92b28245f8", "simhash": "1:076ae0a596473ddd", "word_count": 2303 }, "last_updated": "2023-07-14T22:52:08.452411+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman and Robbins, JJ., agree." ], "parties": [ "Lonnie Wayne COPELAND v. Barbara Elaine COPELAND" ], "opinions": [ { "text": "Andree Layton Roaf, Judge.\nLonnie Copeland has appealed from an order of the Faulkner County Circuit Court dividing the parties\u2019 retirement and pension plans in a divorce. On appeal, Lonnie Copeland argues that the trial court erred in (1) failing to divide the retirement and pensions equally and, (2) failing to give reasons for an unequal division. We agree that the trial court erred, and therefore, reverse and remand.\nLonnie Copeland and Barbara Copeland divorced on April 11, 2002, after twenty-four years of marriage. Prior to the divorce, the parties entered into a property-settlement agreement on March 13, 2002, purporting to distribute all marital property equally, except for their retirement accounts. Paragraph six of the agreement states:\nThe parties have reserved the issue of the division of the Plaintiffs SBC Savings and Security Plan; the Plaintiffs SBC Pension/Retirement Benefit; the Southwestern Bell Stock; and any retirement, 401K and/or pensions benefits the Defendant may have earned until the parties can gather some more information on these benefits.The Defendant shall make a good faith effort to determine whether he has retirement benefits and provide this information to his attorney so that it may be provided to the Plaintiffs attorney within thirty (30) days of the date of this hearing. Upon receipt of this information, if the parties cannot agree on the division of the retirement benefits herein referred to, they shall seek relief from the Court and the Court retains jurisdiction until this matter is adjudicated.\nThe pension plans that are the subject of this appeal include an annuity that will pay Barbara $946.68 per month upon retirement; Barbara\u2019s SBC Savings and Security Plan worth approximately $32,000; Barbara\u2019s Paysop Plan valued at approximately $2,000; and an annuity from Safeway Stores that would pay Lonnie $250.13 per month. The trial court also considered pension funds of approximately $93,000, which Lonnie took as an early withdrawal in 2000, prior to the filing of the divorce action.\nAt the hearing on the division of the retirement and pension plans, Barbara testified that she had worked for Southwestern Bell (SBC) for twenty-five years. She stated that through her employment with SBC she has earned the retirement benefits, to which she does not have access until she retires. She stated that she has not withdrawn anything from the funds and does not have any other retirement or stock-option benefits. Barbara also testified that for the majority of the marriage she was the primary provider, supplying medical insurance, providing \u201cmost of the monthly income for financial stability\u201d and payment for bills, and that this allowed Lonnie to \u201cpursue his other interests.\u201d She asked that the court allow her to keep all of her retirement benefits in light of the above circumstances and the fact that Lonnie received a meat business in the settlement, and because the pension that she receives at retirement will be her only source of income. She also has custody of the parties\u2019 minor daughter, and the parties\u2019 older daughter and grandchild also currently reside with her. Barbara also indicated that Lonnie had not been forthcoming about his retirement benefits from his previous employment with Safeway Stores, Inc., and that only after the divorce did she discover that he was entitled to retirement benefits from Safeway Stores.\nLonnie also testified at the hearing. He testified that he has an annuity benefit from his employment with Safeway that will provide him with $250.13 per month upon retirement. He also stated that he does not have any other retirement funds that he had not disclosed. Lonnie testified that he took early distribution from a retirement fund in 2000 from his employment with Tinken Company, where he worked for thirteen years until the company closed and moved its operations to Mexico. He testified that after federal taxes, the $93,000 distribution amounted to \u201cseventy something,\u201d and that the couple paid an additional $14,000 in state taxes on the funds. He testified that of what was left, seventy-five percent of it was used to pay off \u201cour stuff that my ex-wife now has possession of, her Jeep, the furniture, two credit cards that she had possession of, uh, two Sears bills, and, I kept five thousand ($5,000) for my business, and I paid off my three thousand dollar ($3,000) truck, and the rest of it, we spent.\u201d Lonnie stated that he had always held ajob throughout his twenty-four years of marriage. He requested an equal division of the pension funds remaining after the divorce was filed, \u201cconsidering [his] was divided equally.\u201d\nAfter hearing the testimony, the trial court purported to divide all plans \u201cequally,\u201d including Lonnie\u2019s early distribution. The court first stated that the property division statute does not require mathematical precision, but requires an equitable division of the marital property. The court then explained that it had added the two retirement funds ($90,000 and $30,000) and divided them evenly, and that a fifty-fifty split would thus be $60,000. The court stated that after considering taxes and the use of 75% of the $90,000 for marital debt, the retirement funds would in effect be equally distributed if each party retained their remaining separate retirement funds. The court concluded that Barbara was therefore entitled to keep her roughly $30,000 in pension funds and that Lonnie had, essentially, received the benefit of his half from the early distribution. The court noted that after taxes Lonnie was left with $60,000 net, that the parties had paid some marital debts and that Lonnie retained $15,000 for himself, and finally concluded that \u201ceverybody walks out of here like they walked in today.\u201d The trial court made no reference whatsoever to the parties\u2019 two vested annuities, and when asked for findings as to why there should be an \u201cinequitable division,\u201d the trial court stated:\nOh, I\u2019m thinking it is equitable. That\u2019s what I\u2019m ruling that I do think, after it\u2019s all said and done, it was an equitable division of the ninety thousand dollars. I added the ninety thousand plus the thirty-two thousand. If you split that fifty fifty, that\u2019s sixty thousand apiece. She takes her thirty thousand. After taxes, he had sixty thousand out of the ninety thousand is what I\u2019m coming up with. And, so I do think they\u2019re equal. It may not be exactly to the penny, but I think it\u2019s an equitable division as it is now. I think he used the money to acquire marital assets prior to the divorce, which were split and agreed in a property settlement. So, I think that issue\u2019s out of there. I think they used that money to acquire- and that leaves us with\u2014 where we are today, and I think that\u2019s \u2014 I guess my ruling is that I think it\u2019s an equitable split. [Emphasis added.]\nI can give you a more formal ruling, later on, if you want that, and findings of fact. I\u2019ll be happy to do that. But, I think that\u2019s where I am right now. I do think it\u2019s an equitable division.\nThe trial court did not make formal findings of fact, however, the order entered by the trial court states in pertinent part:\nThat each party shall keep as their own separate property their respective retirement and pension plans. This Court specifically finds that this is an equitable division of the marital property, considering all of the facts, including but not limited to the fact that the Defendant withdrew his pension plan prior to the dissolution of the marriage.\nLonnie Copeland appeals from the trial court\u2019s order purporting to equitably divide the parties\u2019 retirement and pension funds.\nOn appeal, Lonnie argues that the trial court abused its discretion in failing to divide the funds equally, and in failing to give its reasons for making such an unequal division. In this regard, Lonnie contends that the trial court used the terms \u201cequal\u201d and \u201cequitable,\u201d interchangeably, and that it included his retirement funds, already divided in the parties\u2019 agreement and no longer in existence, in its calculations in such a way as to count those funds twice. Lonnie further contends that the trial court gave Barbara her $34,000 retirement funds plus the $946.68 monthly annuity, and only the $250.13 monthly to him, called it \u201cequitable\u201d yet gave no reason for the unequal division. We agree with all of Lonnie\u2019s contentions.\nThis court reviews division of marital property cases de novo. Glover v. Glover, 4 Ark. App. 27, 627 S.W.2d 30 (1982). The trial court has broad powers to distribute property in order to achieve an equitable distribution. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001). The overriding purpose of Arkansas Code Annotated section 9-12-315 is to enable the court to make a division of property that is fair and equitable under the specific circumstances. Id. Arkansas Code Annotated section 9-12-315 (Repl. 2002) provides that marital property is to be divided equally unless it would be inequitable to do so. Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988). If the property is divided unequally, then the court must give reasons for its division in the order. Ark. Code Ann. \u00a7 9-12-315(a)(l)(B) (Repl. 2002); Harvey v. Harvey, supra. The code also provides a list of factors the court may consider when choosing unequal division. Ark. Code Ann. \u00a7 9-12-315(a)(l)(A)(i)-r(ix) (Repl. 2002). This list is not exhaustive. A trial judge\u2019s unequal division of marital property will not be reversed unless it is clearly erroneous. Keathley v. Keathley, supra.\nArkansas Code Annotated section 9-12-315 does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). The trial court is vested with a measure of flexibility in apportioning the total assets held in the marital estate upon divorce, and the critical inquiry is how the total assets are divided. Id. (Emphasis added.) The trial court is given broad powers, under the statute, to distribute all property in divorce cases, marital and non-marital, in order to achieve an equitable distribution. Id.\nFrom our review of the record, we cannot say whether the trial court intended to make an equal, or unequal and equitable, division of the parties\u2019 pension funds. Although the trial court\u2019s written order states that allowing the parties to keep their respective retirement and pension plans is an \u201cequitable\u201d division of the marital property, we note that the trial court, in making his calculations, first purported to make the parties\u2019 cash funds \u201cequal,\u201d and did so by including Lonnie\u2019s funds withdrawn prior to the filing of the divorce. The trial court\u2019s written order did state that it considered the early withdrawal of Lonnie\u2019s pension as a factor. However, the trial court in its oral ruling stated that Lonnie\u2019s funds were \u201csplit and agreed to in a property settlement. So I think that issue\u2019s out of there.\u201d Further, the trial court included all of the federal and state taxes assessed for early withdrawal in its calculations, and, inexplicably, made no mention of or attempt to factor in the wide disparity in monthly benefits between the parties\u2019 two vested annuity plans. Lonnie\u2019s monthly annuity was approximately one-fourth of the value of Barbara\u2019s, and it appears that the trial court simply ignored the disparity in these benefits in its findings and in making its calculations.\nFurthermore, the retirement benefits remaining to be divided by the court comprised only part of the total amount of marital property owned by the parties. The parties\u2019 settlement agreement purported to divide all marital property equally except Barbara\u2019s retirement benefits, and any benefits Lonnie \u201cmay have earned,\u201d in connection with which Lonnie was to make a good faith effort to determine whether he had any retirement benefits. It is undisputed that both parties were aware that Lonnie\u2019s benefits through his employment with Tinken Company had been disposed of prior to the filing of the divorce and were not among the assets to be divided by the trial court. Barbara instead sought an unequal division in her favor of the remaining funds. In this respect, there is no evidence in the record to establish the value of the substantial amount of marital property divided between the parties by agreement, including businesses and race horses, and little evidence on the parties\u2019 respective incomes or the other factors that the trial court is to consider pursuant to Ark. Code Ann. \u00a7 9-12-315(a)(l)(A) (Repl. 2002) when it makes a distribution other than one-half to each party.\nOn de novo review of a fully developed record, when we can plainly see where the equities lie, we may enter the order that the trial court should have entered. Reaves v. Reaves, 63 Ark. 187, 975 S.W.2d 882 (1998). However, from the record before us, we cannot say whether it was error for the trial court to make what was essentially a grossly disproportionate distribution of the marital retirement assets remaining after the settlement in favor ofBarbara. The record is simply not fully developed. Accordingly, we reverse and remand this case for further proceedings. On remand, the trial court may permit the introduction of such additional evidence as is necessary to make findings regarding the valuation of all of the parties\u2019 assets and the factors to be considered pursuant to Ark. Code Ann. \u00a7 9-12-315 (Repl. 2002). We also remand in order that the trial court may clearly articulate whether it is making an equal or unequal distribution of assets, and if unequal, the reasons why such distribution is equitable.\nReversed and remanded.\nPittman and Robbins, JJ., agree.", "type": "majority", "author": "Andree Layton Roaf, Judge." } ], "attorneys": [ "Osment Law Firm, by: Pamela Osment, for appellant.", "Cullen & Co. PLLC, by: Tim Cullen, for appellee." ], "corrections": "", "head_matter": "Lonnie Wayne COPELAND v. Barbara Elaine COPELAND\nCA 03-482\n139 S.W.3d 145\nCourt of Appeals of Arkansas Division III\nOpinion delivered December 17, 2003\nOsment Law Firm, by: Pamela Osment, for appellant.\nCullen & Co. PLLC, by: Tim Cullen, for appellee." }, "file_name": "0303-01", "first_page_order": 327, "last_page_order": 333 }