ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION II

CA00-1261

June 20, 2001

JOY CROSSNO AN APPEAL FROM GREENE COUNTY

CHANCERY COURT

APPELLANT NO. E-99-228

V.

HONORABLE GRAHAM PARTLOW,

RANDY CROSSNO CHANCELLOR

APPELLEE AFFIRMED

Joy Crossno has appealed from a divorce decree entered by the Greene County Chancery Court, arguing that the chancellor erred in his division of the parties' property, in the allocation of their debts, and in establishing appellee Randy Crossno's visitation with the parties' son. We affirm the chancellor's decision in all respects.

The parties lived together without benefit of marriage for over two years before their marriage in May 1997. In 1994, a son, Jared Dakota, was born to them. During this period of cohabitation, appellee purchased real property that was titled only in his name. In April 1997, appellee sold a house on another tract of land that he owned as nonmarital property, and the $30,000 in proceeds were placed in a joint bank account that the parties shared. Some of these were used to clear the land, prepare it for a home site, and construct a barn, a shed and a tack room. The parties also built a house on that land, and both signed the mortgage. They separated only a few months after moving into the new house, and divorce proceedings were initiated in 1999.

At trial, appellant asserted an interest in the house and contested the times and days of appellee's visitation rights. Following the trial, the chancellor issued a letter opinion in which he found that one-half of the $30,000 placed in the joint bank account belonged to appellant and stated:

[T]he real property now owned by [appellee] is his property, having been acquired prior to the marriage, and [appellant] has no interest in the realty. Improvements to non-marital property made by marital funds are considered to be marital and to be divided equally. Callaway vs. Callaway, 8 Ark. App. 129 (1983). See also Williford vs. Williford, 280 Ark. 71 (1983). On D-3, he shows certain improvements made to the real property, including clearing land, construction of a barn, a tack room, and a shed. The total is $15,600. [Appellant] is entitled to receive some sort of credit for one-half of the improvements that were made to the non-marital land and since only $15,000.00 of the money in the account was considered to be her money and was used for those purposes, she should be entitled to credit for $7,500.00 and a judgment against defendant for that amount. There was also testimony that she had worked on improving the home or building the home, but the Court is unable to determine from the proof the value of those services and will not award her any judgment for that. There is a mortgage on the land that she signed (D-11) and the [appellee] is ordered to hold her harmless from any liability on that mortgage.

In the decree, the chancellor awarded appellant a divorce and custody of Dakota and gave appellee visitation on alternate weekends, commencing at 5:00 p.m. on Fridays and continuing until 6:00 p.m. on Sundays. Appellee was given the right to have overnight visitation with Dakota on Wednesdays during the week he does not have weekend visitation and on alternate Wednesdays from 5:00 to 8:00 p.m. The chancellor also found thatappellee's cousin (Karen Williams) may pick Dakota up if appellee is unable to do so. The chancellor set appellee's child support obligation at $129 per week. He awarded appellant one-half of appellee's 401(k) plan and gave the parties thirty days to divide the following items of marital property: a backhoe, a post-hole digger, the horses, a 1955 Chevrolet, some junk cars, a 1990 GMC pick-up truck, two bedroom suites, the washer, the dryer, the refrigerator, the stove, an air conditioner, and a wall heater. He permitted appellant to keep her nonmarital property and awarded the following as nonmarital property to appellee: the real property on which the house is situated, a tractor, a Corvette, a hay mower, and a cattle trailer. The chancellor equally divided the marital debts to Chase, Lowe's, Arkansas Bank, Union Planters, and Southwestern Bell, as shown on Defendant's Exhibit 10.

Appellant's Interest in Appellee's Nonmarital Real Property

Appellant has raised three points on appeal. First, she argues that the chancellor erred in awarding her an amount equal to approximately one-half of the funds from the joint bank account that were used to improve appellee's nonmarital real property. According to appellant, the $7,500 awarded her was far too little - she asserts that the chancellor should have awarded her one-half of the property's increase in value and points out that, at trial, she expressed her opinion that the property with its improvements was worth $150,000. Appellant contends that we should reverse this case and remand it with directions that the chancellor apply the proper measure of her interest in the property. We decline to do so.

Although we hear chancery cases de novo on the record, we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). The evidence on appeal, including all reasonable inferences therefrom, and the findings of fact by a judge must be reviewed in a light most favorable to the appellee. Id. Where matters of credibility are concerned, the findings of those in a position to observe the witnesses (in this case, the chancellor) are given great weight. Dennis v. Dennis, 70 Ark. App. 13, 13 S.W.3d 909 (2000).

Even though the increase in value of nonmarital property is excepted from the statutory definition of marital property, see Ark. Code Ann. § 9-12-315(b)(5) (Repl. 1998), it is appropriate to recognize a spouse's contributions of money and effort toward its increase in value when making a property division. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993); Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 442 (1990); Camp v. Camp, 18 Ark. App. 87, 710 S.W.2d 842 (1986). The chancellor's findings in regard to such a division will not be reversed on appeal if they are not clearly erroneous. Smith v. Smith, supra.

It is true that appellant testified that she believed the property is now worth $150,000. The chancellor, however, apparently did not believe her, nor was he required to do so. See Bell v. Bell, 15 Ark. App. 196, 691 S.W.2d 184 (1985). Additionally, appellant did not offer an appraisal of the property, or any expert testimony, to support her opinion, which she based upon a "real estate book." On the other hand, appellee testified that the outstanding debt on this property is $96,000, and the appraisal that was done before the house was built assigned it a projected value of $109,000. In light of this evidence, which establishes the parties' combined equity in the house at $13,000, we cannot say that the chancellor erred in assigning a $7,500 value to appellant's interest in the house.

The Marital Debts

Appellant also argues that the chancellor erred in apportioning the marital debts. She contends that he should not have equally divided the Chase and Lowe's credit-card debts, because appellee had owed balances on them when the parties married. Appellant, however, misinterprets the chancellor's decision, which clearly referred to Defendant's Exhibit 10, a listing of the marital debts. At trial, appellee testified that he had listed on that exhibit only the amounts by which these debts had increased between the dates of the parties' marriage and separation. Appellant also contends that the chancellor erred in assigning to her one-half of the $75 debt to Southwestern Bell. Appellee, however, testified at trial that he incurred this expense to replace phone jacks that appellee had removed when she left him. Appellant also asserts that the chancellor should not have made her equally responsible for the remaining $7,200 debt to Arkansas Bank, because a portion of this debt, $1,600, was incurred to pay for insurance on appellee's real property.1 We point out, however, that this debt was accrued during the marriage and the subject property was divided equally as marital property. Questions about the assignment of marital debts are not reversed unless clearly erroneous. See Grace v. Grace, 326 Ark. 312, 930 S.W.2d 362 (1996); Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998). We have no hesitation in holding that the chancellor's decision about these debts is not clearly erroneous.

Visitation

Appellant's final argument concerns appellee's visitation with the child. Appellant points out that, because appellee is a truck driver and his work hours vary, he might not beable to pick Dakota up each Wednesday or Friday evening that he has visitation. She is concerned that he will send his cousin, Karen Williams, to pick him up in his stead and that Dakota may spend many hours when he is not with his father on such occasions. Appellant asserts that it would be in the child's best interest to stay with her when appellee cannot personally pick him up.

On the other hand, appellee testified, and appellant admitted, that Ms. Williams had taken care of Dakota on many occasions in the past, even during the parties' marriage, with appellant's approval. By all accounts, Ms. Williams and the child have a close and loving relationship. The polestar consideration for making judicial determinations concerning visitation is the best interest of the child. Ishmael v. Ismail, 66 Ark. App. 232, 989 S.W.2d 923 (1999); Marler v. Binkley, 29 Ark. App. 73, 776 S.W.2d 839 (1989). Because there are no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties and their witnesses carry as great a weight as one involving the custody of children, this court defers to the chancellor's determination as to the credibility of the witnesses. Ishmael v. Ismail, supra. Important factors to be considered in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. Id. Giving these factors due consideration, we do not believe that the chancellor abused his discretion in setting appellee's visitation.

Affirmed.

Bird and Baker, JJ., agree.

1 Appellee testified that, when the parties separated, this debt was approximately $8,300; by the time of trial, it had been reduced to $7,200.