{ "id": 1453639, "name": "Betty MASON v. James MASON", "name_abbreviation": "Mason v. Mason", "decision_date": "1995-03-13", "docket_number": "94-568", "first_page": "722", "last_page": "739", "citations": [ { "type": "official", "cite": "319 Ark. 722" }, { "type": "parallel", "cite": "895 S.W.2d 513" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "319 Ark. 197", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453648 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0197-01" ] }, { "cite": "28 Ark. App. 175", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138847 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/28/0175-01" ] }, { "cite": "289 Ark. 159", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875348 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0159-01" ] }, { "cite": "10 Ark. App. 331", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142041 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/10/0331-01" ] }, { "cite": "294 Ark. 194", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895809 ], "weight": 6, "year": 1987, "pin_cites": [ { "page": "206" }, { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/ark/294/0194-01" ] }, { "cite": "306 Ark. 15", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900973 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0015-01" ] }, { "cite": "421 S.W.2d 611", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 8724057 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/243/0773-02" ] }, { "cite": "243 Ark. 773", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724057, 8724006 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/243/0773-02", "/ark/243/0773-01" ] }, { "cite": "243 Ark. 465", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721357 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "469-70" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ark/243/0465-01" ] }, { "cite": "297 Ark. 342", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891402 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "344" }, { "page": "877" } ], "opinion_index": 0, "case_paths": [ "/ark/297/0342-01" ] }, { "cite": "35 Ark. App. 89", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6647839 ], "weight": 6, "year": 1991, "pin_cites": [ { "page": "93" }, { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/ark-app/35/0089-01" ] }, { "cite": "692 S.W.2d 601", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 8720793, 8720878 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "602-3" } ], "opinion_index": 0, "case_paths": [ "/ark/286/0348-01", "/ark/286/0353-01" ] }, { "cite": "286 Ark. 353", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720878 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ark/286/0353-01" ] }, { "cite": "281 Ark. 261", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742375 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/281/0261-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-12-315", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 13, "pin_cites": [ { "page": "(b)(6)" }, { "page": "(b)(6)" }, { "page": "(b)(6)" }, { "page": "(a)" }, { "page": "(b)(6)" }, { "page": "(b)" }, { "page": "(a)(1)(A)" }, { "page": "(b)(6)" }, { "page": "(b)(6)" }, { "page": "(b)(6)" }, { "page": "(a)(1)(A)" }, { "page": "(b)(l)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 9-12-313", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1090, "char_count": 31237, "ocr_confidence": 0.879, "pagerank": { "raw": 1.8837606019451124e-07, "percentile": 0.7280291244779136 }, "sha256": "ae8562346e9922efe5d281ce77b005eee11dae17936cdcf4c3056af6c3ea8e58", "simhash": "1:b1de2a67ec8d65b4", "word_count": 5073 }, "last_updated": "2023-07-14T15:29:57.133828+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin, J., not participating." ], "parties": [ "Betty MASON v. James MASON" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThe appellant, Betty Mason, appeals the Arkansas County Chancery Court\u2019s denial of her motion for new trial, amendment of judgment, and relief from the trial court\u2019s division of marital property, accompanying a decree of divorce. The chancellor found, among other things, that appellee James Mason\u2019s Riceland Foods disability benefits and Social Security benefits were not marital property subject to division between the parties under Ark. Code Ann. \u00a7 9-12-313(b) as amended by Act 676 of 1987 and Act 1167 of 1991. We accept jurisdiction of this case pursuant to Supreme Court Rule l-2(a)(3) because it involves the interpretation and construction of these two acts of the general assembly.\nMrs. Mason raises four points on appeal: (1) whether the chancery court erred in refusing to divide Mr. Mason\u2019s Riceland Foods disability benefits; (2) whether the chancery court erred in not dividing the parties\u2019 Social Security benefits; (3) whether the chancery court erred in awarding an unequal, and much smaller, portion of the parties\u2019 marital assets to Mrs. Mason; (4) whether the chancery court erred in finding that the $75,000 James Mason Trust was funded with inherited funds and thus the separate property of Mr. Mason.\nWe hold that the chancellor erred in parcelling out the marital property by treating Mr. Mason\u2019s disability retirement benefits as exempt from division and in \u00bfwarding an unequal share of assets to the parties without providing a more detailed rationale for doing so. Consequently, we reverse and remand the matter for further proceedings consistent with this opinion.\nFacts\nJames and Betty Mason were married on November 6,1946. Living in Stuttgart, Arkansas, they reared five children over a thirty-eight-year period. In addition to holding other jobs, Mr. Mason was employed for many years by Riceland Foods, Inc., where he rose to an executive position. During the early years of the marriage, Mrs. Mason worked at home as a housewife and mother but occasionally worked outside the home, as well. In 1975, she opened Mason Realty Company, a successful real estate business.\nWhile serving in the South Pacific during World War II, Mr. Mason was wounded three times; one of the wounds resulted in fragmented vertebrae. A shrapnel injury subsequently required surgery. By the 1970s, when he was employed by Riceland Foods, Mr. Mason began having recurrent problems with pain. He lost the use of his left arm and ultimately underwent five operations. Two surgical procedures entailed the fusing of neck vertebrae and another two the fusing of lower-back vertebrae.\nIn 1980, after his fifth back operation, Mr. Mason applied for a disability determination under the Riceland Foods Disability Insurance Plan. He was approved and, having retired from the company, received disability payments until he reached actual retirement age.\nMr. and Mrs. Mason separated on September 21, 1984, and Mrs. Mason subsequently filed for divorce. At that time, she disposed of her real estate business and moved to Little Rock. Mr. Mason was then receiving monthly income from the Riceland disability plan as well as a monthly Social Security disability payment. Nine years later, when an absolute divorce was granted, most of the disability payments had been converted to a retirement plan, though some of the disability payments continued under what the chancellor termed in a letter opinion \u201ca complicated company disability and retirement plan.\u201d\nHearings in this matter began in September and October 1986. A trial on the merits was conducted on October 29, 1986. After some testimony was taken and some exhibits introduced, the parties announced that they had reached a settlement agreement, which later collapsed. Further hearings were held on March 1, 1988, and on August 1, 1988.\nOn November 7, 1988, the chancellor filed a letter opinion in which he found that Mrs. Mason was entitled to a divorce but not to an award of alimony. The letter opinion contained numerous findings concerning the parties\u2019 income and assets, including a finding that Mr. Mason currently received $3,402.41 per month in Riceland disability benefits as well as $706 in monthly Social Security disability payments. The chancellor also found that Mason Realty Company, Mrs. Mason\u2019s enterprise, had, as of March 1, 1988, $321,627.28 in liquid assets. Regarding the disability incomes, the chancery court found that the benefits constituted marital property under Ark. Code Ann. \u00a7 9-12-315(b)(6), not being based on either a workers\u2019 compensation or personal injury claim and, in any event, not being for any degree of permanent disability or future medical expenses. Mrs. Mason, the court determined, was entitled to receive one-half of Mr. Mason\u2019s Riceland and Social Security disability payments. The chancellor found that the Mason Realty assets were marital property subject to equal division, and that alimony was not warranted. Additionally, the court concluded that the James Mason Trust was funded with inheritance money received by Mr. Mason from his mother and was, therefore, not marital property.\nAlthough the chancellor had stated in his letter opinion that Mrs. Mason was entitled to a divorce, a decree of divorce and property division was not entered of record. Instead, the chancellor granted Mr. Mason\u2019s request that a Master be appointed to ascertain, for purposes of distribution, the assets of the parties based on the accumulation and expenditure of assets since the previous court orders. A Master was appointed on August 16, 1989, and completed his report on August 18, 1992.\nMeanwhile, on September 25, 1991, Mr. Mason filed a motion requesting that the chancery court reopen the issue of whether the Riceland disability benefits were marital property in light of recent amendments to Ark. Code Ann. \u00a7 9-12-315(b)(6) regarding marital-property exemptions and allow the introduction of an evidentiary deposition of Mr. Mason\u2019s physician for the purpose of showing that the disability was permanent. He asserted that, because Act 1167 of 1991, codified at \u00a7 9-12-315(b)(6), excluded benefits for Social Security claims from the statutory definition of marital property, the case should be reopened for additional evidence.\nThe chancery court reopened the matter, and, on August 24, 1992, further proceedings were held. At that time, Mr. Mason testified about the permanency of his disability. He was also permitted to introduce the deposition of his physician, Dr. Stephen D. Holt, who stated that Mr. Mason\u2019s disability was permanent.\nOn January 26, 1993, the chancellor issued a second opinion letter, filed on February 1, 1993, in which he reiterated his view that Mrs. Mason was not entitled to alimony. He ordered the marital home and other real estate to be sold at public auction. Noting that no final order or decree had been filed granting a divorce to the parties or a division of their property and that the law on marital-property exemptions had changed since his November 1988 letter opinion, the chancellor revised his earlier conclusion, finding that, under the amended \u00a7 9-12-315(b)(6), Mr. Mason\u2019s Riceland and Social Security benefits were for \u201cpermanent disability\u201d and therefore outside the category of marital benefits to be evenly distributed.\nSince, however, most of the disability payments had by then been converted to retirement benefits due to the fact that Mr. Mason had attained sixty-five years of age, the court found that the retirement-plan payments were marital property and were to be equally divided. Both parties were allowed to continue to draw their own Social Security payments.\nAs in the November 1988 letter opinion, the chancellor found that the Mason Realty Company assets were marital property to be divided equally and that the James Mason Trust was funded through an inheritance from Mr. Mason\u2019s mother and thus not marital property. Regarding the apparently unequal distribution of property and incomes in Mr. Mason\u2019s favor, the chancery court observed that it had considered Mr. Mason\u2019s amounts and sources of income and his estate and liabilities, \u201calong with the fact that Mrs. Mason has lived on a substantial amount of marital income during the pendency of the divorce.\u201d\nThe court found it equitable that Mr. Mason should keep all of his non-marital property and his equal share of marital property, while allowing Mrs. Mason to have the use of marital income and her equal share of the marital property. The chancellor further found that, based on the entire record, there should be no equalization between the parties regarding expenditures and that Mrs. Mason would not be required to account to Mr. Mason for her expenditures, nor would he be required to account to her for his.\nOn October 18, 1993, a formal decree of divorce was entered. Mrs. Mason then filed a motion for new trial, amendment of judgment, and relief from decree, which was denied by the chancery court on November 24, 1993. From that order, this appeal arises.\n/. Riceland Foods disability benefits\nMrs. Mason subdivides her first argument into three sub-points.\na. Whether the Riceland Foods disability plan fits within the statutory exceptions to marital property\nAccording to Mrs. Mason, the Riceland Foods disability benefits do not fit within the exceptions to the definition of marital property set forth in Ark. Code Ann. \u00a7 9-12-315(b)(6) (Repl. 1993). Under Ark. Code Ann. \u00a7 9-12-315(a), at the time a divorce decree is entered, the chancery court must distribute all martial property \u201cone-half (1/2) to each party unless the court finds such a division to be inequitable.\u201d The term \u201cmarital property\u201d is defined in \u00a7 9-12-315(b) as \u201call property acquired by either spouse subsequent to the marriage\u201d with certain specified exceptions. Among those are the exceptions presently in question, listed in subsection (b)(6):\nBenefits received or to be received from a workers\u2019 compensation claim, personal injury claim, or social security claim when those benefits are for any degree of permanent disability or future medical expenses. . . .\nThis statutory subsection, on which the chancellor relied in his February 1993 letter opinion, incorporates two amendments. Act 676 of 1987 excepted workers\u2019 compensation and personal injury claims when those benefits are for any degree of permanent disability or future medical expenses. Act 1167 of 1991 added an exception for Social Security claims.\nAs noted earlier, Mr. Mason began receiving disability payments from Riceland Foods in 1980. Dr. Stephen D. Holt characterized Mr. Mason\u2019s condition as chronic pain syndrome due to arthritis, hypothyroidism, and nerve damage from scar tissue. The benefits were derived from a disability policy purchased by Riceland, with contributions from Mr. Mason, during the marriage of the parties. As previously indicated, at the time of the separation, Mr. Mason received, for his own use, monthly disability payments amounting to $3,401.21.\nMr. Mason turned sixty-five during the course of the divorce proceedings, and most of the disability benefits were then converted into retirement benefits. Mrs. Mason contends that the chancellor erred in failing to find that the Riceland disability payments made to Mr. Mason, up to retirement age and that portion remaining since constitute marital property subject to equal distribution.\nMr. Mason counters that his physical problems had their origins in his World War II injuries, which were aggravated in the 1970s during his tenure at Riceland by his loss of the use of his left arm and a work-related fall. He asserts that the disability payments resulted from these injuries, sustained prior to and during his employment with Riceland, and insists that the benefits fall squarely within the exception set forth in Ark. Code Ann. \u00a7 9-12-315(b)(6). The implication is that the disability benefits were based on a \u201cpersonal injury claim.\u201d\nThis court held, in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), that retirement benefits were marital property. In Morrison v. Morrison, 286 Ark. 353, 692 S.W.2d 601 (1985), we recognized that disability benefits also constituted marital property, analogizing them to the pension benefits in the Day case. \u201cThere is no meaningful distinction,\u201d we noted, \u201cbetween an annuity payable upon disability and one payable upon longevity.\u201d 286 Ark. at 355, 692 S.W.2d at 602-3.\nThe court of appeals, in Dunn v. Dunn, 35 Ark. App. 89, 811 S.W.2d 336 (1991), reversed a chancellor\u2019s finding that a divorced husband\u2019s disability income was not marital property. Summarizing its view of the matter, the appellate court declared:\nUnder the circumstances, where the appellee\u2019s employer during the marriage provided a long-term disability insurance plan for its executives; where these benefits were in lieu of workers\u2019 compensation, and were not awarded as benefits for a permanent disability or for future medical costs; and where the disability entitling the appellee to collect the benefits provided by the plan occurred during the marriage; we hold that the property was acquired during the marriage and furthermore, is marital property as defined by the statute [Ark. Code Ann. \u00a7 9-12-315(b)].\n35 Ark. App. at 93, 811 S.W.2d at 339.\nIn Clayton v. Clayton, 297 Ark. 342, 760 S.W.2d 875 (1988), this court reversed a chancellor\u2019s finding that an unliquidated personal injury claim under the Federal Employers\u2019 Liability Act (FELA) was not marital property under \u00a7 9-12-315(b)(6). We emphasized that Act 676 of 1987 \u201cexcepted from marital property only those benefits from an unliquidated personal injury claim that would be for any degree of permanent disability or future medical expenses.\u201d 297 Ark. at 344, 760 S.W.2d at 877. Apart from those specific benefits, we continued, \u201cthe remaining benefits or elements of damage from one\u2019s personal injury claim are subject to division as marital property pursuant to Ark. Code Ann. \u00a7 9-12-315(a)(1)(A).\u201d Id. The case was remanded for a determination of which benefits from the FELA claim were to be considered marital property.\nClearly, then, the mere labeling of a claim as \u201cpersonal injury\u201d does not satisfy the requirement for exemption from marital property. It is necessary that the claim be for a degree of permanent disability or future medical expenses. At first glance, Mr. Mason\u2019s claim would seem to fit the category. His physician, Dr. Holt, wrote in 1983 that Mr. Mason was \u201cpermanently impaired from any type of gainful employment at present or any time in the future.\u201d He had not changed his opinion by the time he testified in 1992. Thus, it might be possible to distinguish Mr. Mason\u2019s position from that of the appellee in Dunn v. Dunn, supra, where the court of appeals noted, in holding that disability payments were marital property, that the payments at issue were not for a permanent disability.\nBut the crux of the matter here lies in the antecedent term \u201cpersonal injury,\u201d which has been defined, in relevant part, as\na hurt or damage done to a man\u2019s person, such as a cut or bruise, a broken limb, or the like, as distinguished from an injury to his property or his reputation. The phrase is chiefly used in this connection with actions of tort for negligence and under worker\u2019s compensation statutes.\nBlack\u2019s Law Dictionary 786 (6th ed. 1990). (Emphasis in original.)\nThe Clayton case involved an on-the-job injury for which the party had made a claim under FELA. In the present case, as Mr. Mason acknowledges, the ultimate source of his disability can be traced back to the wounds he suffered in World War II rather than to a specific \u201cpersonal injury\u201d sustained while in the employ of Riceland Foods or in consequence of a tortious act. Although he did experience a work-related fall at Riceland, that injury merely exacerbated the pain he already suffered and admittedly was not the principal cause of the permanent disability. The workers\u2019 compensation exception in \u00a7 9-12-315(b)(6) addresses the aggravation of pre-existing conditions.\nTo equate Mr. Mason\u2019s long-term physical condition with a \u201cpersonal injury\u201d would be to stretch the concept to the point of meaninglessness. Instead, the accounts given of his problems suggest the term \u201cbodily injury,\u201d which is defined as \u201c[pjhysical pain, illness or any impairment of physical condition.\u201d Black\u2019s Law Dictionary 786 (6th ed. 1990).\nFor these reasons, we hold that Mr. Mason\u2019s claim for his physical condition does not constitute a claim for \u201cpersonal injury\u201d as contemplated by Ark. Code Ann. \u00a7 9-12-315(b)(6) and therefore does not fall within the statutory marital-property exemption. We reverse and remand the matter to the chancellor for an equal division of Mr. Mason\u2019s Riceland Foods disability benefits.\nb. Whether the chancery court erred in finding that Mr. Mason\u2019s disability benefits were for a permanent disability\nThe second subsection under Mrs. Mason\u2019s first point for reversal is an argument in the alternative. She urges that, even if the Riceland Foods disability plan comes within the exceptions of Ark. Code Ann. \u00a7 9-12-315(b)(6), the chancellor erred in finding that Mr. Mason\u2019s Riceland disability benefits were for a permanent disability.\nIn his 1988 letter opinion, the chancellor found that Mr. Mason had not provided any evidence that the Riceland and Social Security benefits were for permanent diability or future medical expenses. After reopening the case and receiving the deposition of Dr. Holt, the chancellor found, in his 1993 letter opinion and decree, that the benefits were for a \u201cpermanent disability.\u201d\nMrs. Mason urges that the record shows that neither her former husband\u2019s condition nor his treatment had undergone a major change since Dr. Holt\u2019s first deposition in 1986 and that Mr. Mason continued to work (as Chairman of the Board of the Department of Correction) until 1992. These factors, she contends, indicate that Mr. Mason did not suffer from a \u201cpermanent disability.\u201d\nOn the other hand, in the 1992 deposition, Dr. Holt described Mr. Mason\u2019s neurological problems as \u201cpermanent in nature.\u201d The purpose of treatment at this point, Dr. Holt opined, would be limited to assisting Mr. Mason in learning how to deal with a permanent injury.\nGiven the emphatic tone of the physician\u2019s 1992 deposition and the chancellor\u2019s position as finder of fact, it cannot be said that the chancery court erred in finding that Mr. Mason\u2019s Riceland Foods benefits were for a permanent disability.\nc. Whether the chancery court erred in reopening the case four years after a final decision strictly for the narrow purpose of allowing Mr. Mason to submit a second evidentiary deposition of his physician.\nAs recited earlier, on November 7, 1988, the chancellor entered his findings of fact and conclusions of law in the present case. No final decree was filed. Later, on August 24, 1992, the chancellor reopened the matter, in the light of the statutory changes, to allow Mr. Mason to introduce the deposition of his physician, Dr. Holt, concerning the permanency of the disability.\nMrs. Mason contends that the chancellor erred in reopening the case because the chancellor\u2019s decision in 1988 was final, despite the absence of a formal entry of a divorce decree, which, she insists, was delayed by her former husband\u2019s actions. Yet, as this court has explained:\nThe decisions, opinions, and findings of a court do not constitute a judgment or decree. They merely form the bases upon which the judgment or decree is subsequently to be rendered and are not conclusive unless incorporated in a judgment or a judgment be entered thereon. . . . They are more in the nature of the verdict of a jury and no more a judgment than such a verdict.\nThomas v. McElroy, 243 Ark. 465, 469-70, 420 S.W.2d 530, 533 (1967).\nWe have held that a chancellor is vested with the discretion to reopen a case before the entry of a final decree upon the record. Kennedy v. Kennedy, 243 Ark. 773, 421 S.W.2d 611 (1967). Before doing so, however, the court must afford both parties the opportunity to be heard on the matter. Tackett v. First Savings of Arkansas, 306 Ark. 15, 810 S.W.2d 927 (1991). Here, both parties briefed the issue. The chancellor, not having entered a final decree pursuant to Ark. R. Civ. P. 58, did not err in reopening the case to permit introduction of Dr. Holt\u2019s deposition.\nII. Social Security benefits\nIn her second point for reversal, Mrs. Mason contends that the chancery court erred in not dividing the parties\u2019 Social Security benefits. The issue is readily resolved by an examination of Ark. Code Ann. \u00a7 9-12-315(b)(6), which plainly exempts from marital property \u201cBenefits received or to be received from a . . . social security claim when those benefits are for any degree of permanent disability or future medical expenses.\u201d\nThe chancellor did not make a finding with respect to the permanency of disability in the context of Social Security benefits, but it was unnecessary for him to do so as he had found Mr. Mason\u2019s disability permanent in connection with the Rice-land Foods benefits. Therefore, the exemption requirement was satisfied for both purposes, and the chancery court did not err in not dividing the parties\u2019 Social Security benefits.\nIII. Unequal division of marital assets\nFor her third point for her reversal, Mrs. Mason argues that the chancellor erred in awarding her an unequal, and much smaller, portion of the parties\u2019 marital assets. She asserts that during the nine years that the divorce action was pending, the chancery court consistently ruled that the parties would be required to account for all income and assets acquired or spent during their separation. Yet, she maintains, while an accounting was required of her, Mr. Mason, who she alleges spent approximately $600,000 during the pendency of the action, was not compelled to account for his expenditures and was allowed to keep as his own separate property everything he purchased in that period.\nMrs. Mason notes that, from the outset, Mr. Mason was permitted to live on his retirement income and his Social Security benefits as well as on one-half of the parties\u2019 joint marital rental income. She states that she, on the other hand, was obliged to live on interest income from both her Mason Realty assets and the other marital assets in her hands as well as one-half of the joint marital rental income.\nArkansas family law provides that:\nAll marital property shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration:\n(i) The length of the marriage;\n(ii) Age, health, and station in life of the parties;\n(iii) Occupation of the parties;\n(iv) Amount and sources of income;\n(v) Vocational skills;\n(vi) Employability;\n(vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;\n(viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and\n(ix) The federal income tax consequences of the court\u2019s division of property.\nArk. Code Ann. \u00a7 9-12-315(a)(1)(A) (Repl. 1993).\nThe chancellor outlined and addressed each of these factors in his 1993 letter opinion. Based on the entire record and with particular reference to the nine statutory considerations, the chancellor found that \u201cthere should be no equalization between the parties as to expenditures. Mrs. Mason will not be required to account to Mr. Mason for her expenditures and he shall not be required to account to her for his.\u201d\nThe chancellor weighed Mr. Mason\u2019s amounts and sources of income and his estate and liabilities against the fact that Mrs. Mason had lived on a substantial amount of marital income during the progress of the divorce action. \u201cWhen all things are considered,\u201d he wrote, \u201cequity should allow Mr. Mason to keep all of his non-marital property, while allowing Mrs. Mason to have the use of the marital income and her equal share of the marital property.\u201d\nIt appears that the chancellor was endeavoring to balance the equities to the extent possible, granting the use of marital income to Mrs. Mason by way of compensation for allowing Mr. Mason to keep the disability benefits, rental income, and other non-marital property. Mrs. Mason insists, however, that despite having received the use of marital income, her income was still less than Mr. Mason\u2019s ($293,205.64 compared to $803,325.68, according to her figures). Moreover, she points out, the chancellor only took into account income from September 1984, when the parties separated, through July 1991.\nThe chancellor is given broad powers to distribute all of the parties\u2019 property in a divorce action in order to achieve an equitable distribution. Dunn v. Dunn, supra. In the Dunn case, the court of appeals noted that, having decided to remand the case, it was unnecessary to address the argument that the court had erred in making an unequal division of the parties\u2019 joint savings account. The appellate court remanded the case to the chancellor for a full resolution of the issue of property rights.\nIn the present case, we have determined that the matter must be reversed and remanded on the issue of the Riceland Foods disability benefits. Although, on de novo review, we have conducted our own examination of the parties\u2019 expenditures and the division of marital assets, scrutinizing the transcript of the proceedings, we have concluded that the record in this appeal does not provide sufficient evidence for us to reach a conclusion. In view of these circumstances, we are of the opinion that fairness requires our remand of this cause to permit both parties to develop their evidence regarding the equitable distribution of marital property. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). We therefore remand this issue to the chancery court for a complete resolution of questions pertaining to the unequal distribution of marital assets.\nOur decision to remand on the third point is based on other, compelling considerations. The chancellor\u2019s findings with regard to the division of marital property are couched in general terms, with few figures cited. Further, as Mrs. Mason correctly notes, the chancellor relied on calculations in the Master\u2019s report, which covered only the years 1984 to 1991.\nTo some extent, the division of Riceland Foods disability benefits will remedy any existing inequities in the chancellor\u2019s distribution of assets. On remand, we direct the chancellor to extend the period for the income and expenditure calculation to the date of the divorce decree and to resolve all outstanding questions relating to the unequal distribution of marital property.\nIV. Funding of James Mason Trust\nFinally, Mrs. Mason argues that the chancery court erred in finding that \u201c[t]he James Mason Trust was funded with funds and property received by Mr. Mason through his inheritance from his mother\u201d and, therefore, not marital property. Property received by gift, bequest, devise, or descent is not marital property subject to equal division upon divorce. Ark. Code Ann. \u00a7 9-12-315(b)(l) (Repl. 1993); Gorchik v. Gorchik, 10 Ark. App. 331, 663 S.W.2d 941 (1984), overruled on other grounds in Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). Mrs. Mason cites Aldridge v. Aldridge, 28 Ark. App. 175, 773 S.W.2d 103 (1989), for the principle that the burden is on the party who asserts an interest in property to establish that it is in fact separate property not subject to division.\nAt the time that the chancery court\u2019s decree was entered, the James Mason Trust contained the amount of $75,000. This figure, Mrs. Mason maintains, is substantially more than the $34,066.67 shown by the probate records to have been his share of his mother\u2019s estate. Mrs. Mason urges that the chancery court should have required Mr. Mason to account for the funds over and above the $34,066.66 from his mother.\nAccording to Mr. Mason\u2019s testimony, he received $30,000 from his mother\u2019s will, another $30,000 in cash from his father, and $15,000 from the sale of his mother\u2019s house. On that basis, the chancellor made his finding. Although appellate courts review chancery cases de novo on the record, a decree is not reversed unless the chancellor\u2019s findings are clearly erroneous or clearly against a preponderance of the evidence, and, because the question of preponderance turns heavily on the credibility of the witnesses, deference is accorded the superior position of the chancellor in this regard. Gorchik v. Gorchik, supra. It cannot be said that the chancellor\u2019s finding that the James Mason Trust was Mr. Mason\u2019s personal property was clearly erroneous.\nConclusion\nThe chancellor, in his decree, made particular note of the fact that the findings, conclusions, and divisions of marital property were based on the entire decision rendered in this case and that a change in the status of one could very well result in a change in the status of the other. \u201cShould the case be appealed,\u201d he declared, \u201cand all or part of the decision is overturned, my opinion regarding the Findings, Conclusions, and division of property may be different.\u201d\nIn a similar vein, in Wilson v. Wilson, supra, where we reversed and remanded a chancellor\u2019s erroneous rulings on the division of a party\u2019s incentive bonus and valued interest in a company for which he worked, we noted that \u201c[b]ecause these property interests must be reconsidered by the chancellor, we are aware that any readjustment of these interests also might affect his earlier decision concerning the issue of alimony.\u201d 294 Ark. at 206, 741 S.W.2d at 647.\nIn sum, we hold that the chancellor erred in finding that the Riceland Foods disability benefits were statutorily exempted from the category of marital property and that the matter must be reversed and remanded for an equal division of the benefits in question. As stated above, we review chancery cases de novo on the record. Williams v. Ashley, 319 Ark. 197, 890 S.W.2d 260 (1995). Here, we have examined the record at length in an effort to resolve all outstanding matters in this appeal. After careful study, we have determined that the record provides insufficient evidence to enable us to reach a conclusion and that, in fairness, we must remand as well for the purpose of allowing the parties to develop their evidence on the proper distribution of marital property. Wilson v. Wilson, supra.\nTherefore, we reverse and remand this case to the chancellor for further proceedings consistent with this opinion, directing him to reconsider and remedy, if necessary, any existing inequities in the distribution of assets (extending the period for the income and expenditure calculations to the date of the divorce decree) and to resolve any and all remaining questions relating to the unequal distribution of marital property.\nCorbin, J., not participating.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Janice Wegener Vaughn, for appellant.", "Malcolm R. Smith. P.A., for appellee." ], "corrections": "", "head_matter": "Betty MASON v. James MASON\n94-568\n895 S.W.2d 513\nSupreme Court of Arkansas\nOpinion delivered March 13, 1995\n[Rehearing denied April 10, 1995.]\nJanice Wegener Vaughn, for appellant.\nMalcolm R. Smith. P.A., for appellee." }, "file_name": "0722-01", "first_page_order": 756, "last_page_order": 773 }