NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN MAUZY PITTMAN, JUDGE

DIVISIONS III and IV

VICKI MCLELLAND

APPELLANT

V.

TRACY MCLELLAND

APPELLEE

CA00-1076

July 5, 2001

APPEAL FROM THE NEVADA COUNTY CHANCERY COURT

[NO. E-99-63-1]

HON. JIM GUNTER,

CHANCELLOR

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Appellant, Vicki McLelland, and appellee, Tracy McLelland, were married on November 27, 1993. Two children were born of the marriage - Alan Clay McLelland, born March 6, 1996, and Brad Morrison McLelland, born February 22, 1998. The parties separated on July 29, 1999, and appellee filed for divorce on August 9, 1999. The case was tried on April 27, 2000. The chancery court found, among other things, that the net marital equity was $28,017. The chancery court awarded custody of the two children to appellant, ordered appellee to pay child support of $624 monthly, or $144 weekly, ordered appellee to provide health insurance for the children, and ordered each party to be responsible for fifty percent of any uncovered medical expenses. Appellee was also ordered to pay $624 in spousal support for twenty-four months. Appellee was ordered to pay debts totaling$132,580, and appellant was ordered to pay any debts incurred by her after July 29, 1999. Appellee was awarded the right to claim both minor children as dependents on his income tax return. With regard to marital property, the chancellor awarded appellant the marital residence and the contents thereof, a 1992 Oldsmobile, and other things in her possession; appellee was awarded the farm, the farming operation in its entirety, all farm equipment, the farm truck, all crops, and all other personal property in his possession. From that decision, comes this appeal.

Appellant raises six issues on appeal: 1) whether the chancellor erred in giving appellee an $82,000 credit for money he allegedly applied to marital debt where there was no evidence to support this and because it is not "property" within the meaning of Ark. Code Ann. § 9-12-315 (Repl. 1998); 2) whether the chancellor erred in valuing the marital equity in the farm equipment at $127,000; 3) whether the chancellor erred in failing to include a leasehold interest in land as a marital asset; 4) whether the chancellor erred by including the depreciation deduction in calculating the child support; 5) whether the chancellor erred in granting appellee the dependency tax exemptions; and 6) whether the chancellor erred by refusing to admit appellee's deposition into evidence. We affirm on the issue of the admission of appellee's deposition and reverse and remand on all other issues except two, which we cannot reach for the reasons stated herein.

We first address the appellant's contention that the chancellor erred in finding that appellee was entitled to an $82,000 credit for money he allegedly applied to marital debt. In reviewing a chancery court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their

testimony. Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000). Although we review chancery cases de novo on the record, we will not reverse a chancellor's finding of fact unless it is clearly erroneous. Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000). A 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.

To determine the parties' net marital equity, the chancery court assessed the gross marital equity at $242,597 after allowing appellee a $30,000 deduction for equity accrued in the farm equipment prior to the marriage. The court found the marital debts to be $132,580 and credited appellee $82,000 for money that appellee said he received from the crop proceeds. After the trial court deducted the marital debts and appellee's $82,000 credit from the gross marital equity, it found that the net marital equity was $28,017. Appellant argues that the court erred in so finding because there is no evidence in the record from which it could conclude that appellee spent $82,000 from his 1993 crop sale on marital debt in 1994 and because the $82,000 does not constitute "property" under Ark. Code Ann. § 9-12-315 (Repl. 1998).

Marital property is defined as property acquired by either spouse subsequent to the marriage. Ark. Code Ann. § 9-12-315(b) (Repl. 1998). Subsection (1) of this code section provides that property acquired prior to marriage, or by gift, bequest, devise, or descent are exceptions. It is undisputed that appellee realized $82,000 from the sale of crops that were raised and harvested prior to the marriage. The issue is whether appellee should receive an $82,000 credit from the marital assets. Appellant asserts that there is no evidence thatappellee expended the money on marital debts or for the benefit of the marriage. Appellant relies on Hoover v. Hoover, 70 Ark. App. 215, 16 S.W.3d 560 (2000), for the proposition that a chancellor may not make a division of property that is based upon the chancellor's speculation rather than the evidence presented. We think Hoover is analogous and supportive of appellant's position. The question of whether appellee is entitled to an $82,000 credit from the marital assets depends on whether the money is traceable. In the instant case, appellee testified that at the time of his marriage in November 1993, he had harvested his 1993 crop, it was packaged and ready to be sold, and all the work had been done prior to his marriage. He further testified that he sold the crop after he got married and that he realized approximately $82,000 from the crop. However, on our review of the record, we conclude that there is no evidence that the $82,000 was applied to marital debts or for the benefit of the marriage, and that the chancellor's award of a $82,000 credit to appellee was therefore error.

Appellant next contends that the chancellor erred in valuing the marital equity in the farm equipment at $127,000. The chancellor found that all equipment, including appellee's truck but less separate equipment appellee purchased prior to the parties' marriage in the amount of $30,000, had an aggregate value of $127,000. Appellant argues that appellee's testimony established that he had only $22,000 or $23,000 in farm equipment prior to the marriage and that, after the marriage, the parties paid $16,478 in marital funds toward appellee's debt on that farm equipment owned by appellee prior to the marriage.

Although appellee testified that he owned $22,000 to $23,000 worth of equipment prior to the marriage in addition to a tractor that was not on the list, the record is silent onthe value of the tractor. In the absence of such testimony, we think that the chancellor's finding that appellee owned $30,000 worth of equipment prior to the marriage was based on speculation. Furthermore, although appellee's testimony that he paid a $16,478 debt on his equipment owned prior to the marriage from the $82,000 proceeds for the 1993 crop would, if believed, entitle him to a credit in this amount in determining the value of his interest in the farm equipment, he could not at the same time be entitled to credit for the entire $82,000 as a credit against the marital debt. We hold that the chancellor erred in finding that appellee had applied all of his 1993 crop proceeds to marital debts and in giving appellee an $82,000 credit against marital debt, while at the same time applying $16,478 from the same $82,000 crop proceeds to a farm equipment debt he had prior to the marriage. We reverse and remand on this issue for further consideration consistent with this opinion.

Next, appellant contends that the chancellor erred in failing to include a leasehold interest in land as a marital asset and that the asserted error was compounded by including the lease payment as a debt. Although appellant argues that there is evidence to support a value for the leasehold far in excess of the amount of the lease payment and that it is worth at least the $22,750 annual payment, she fails to state what that evidence is. Furthermore, while she argues that she did not receive compensation for her marital interest in the land, even though her total award of marital property was further decreased by appellee's recent debt to pay the lease payment, she fails to point out anything in the record that will allow us to review this issue. Our review of the chancellor's order does not reveal any mention of the $22,750 loan from the Bank of Delight, and it was not included in the chancellor's itemizations of the loans. The burden to obtain a ruling is on the movant, and questions leftunresolved are waived and may not be relied upon on appeal. Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987). We do not reach issues on appeal that are not brought to the attention of the trial court for a ruling. Id. Due to appellant's failure to make a record on this issue, we cannot address the merits of this point.

Appellant next argues that the chancellor erroneously considered the depreciation deduction in calculating appellee's income when determining his child support and alimony obligations. Appellant asserts that, to arrive at appellee's adjusted gross income, the chancellor used appellee's tax returns for the previous three calendar years and that the 1998 and 1999 returns included depreciation schedules indicating appellee took a $26,091 deduction in 1999 and a $39,937 deduction in 1998. Appellant argues that the chancellor should have determined how much of the $66,028 depreciation deduction plus the 1997 deduction was actually spendable income to appellee pursuant to Stepp v. Gray, 58 Ark. App. 229, 947 S.W.2d 798 (1997). However, we are unable to address this issue because there are no facts in the abstract to support appellant's claim that the chancellor included a depreciation deduction in calculating appellee's adjusted gross income. Appellant's abstract provides appellee's total adjusted gross income but does not abstract the deductions allowed. Our review of a case is limited to the record as abstracted in the briefs. Hooker v. Farm Plan Corp., 331 Ark. 418, 962 S.W.2d 353 (1998). The appellant carries the burden of producing an abstract that is an impartial condensation, without comment or emphasis, of material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented on appeal. Id. Dueto appellant's failure to provide a sufficient abstract on this point, we cannot reach the merits of this issue.

The fifth issue is whether the chancellor erred in granting appellee the dependency tax exemptions. The trial court awarded appellee the right to claim both minor children as dependents on his income tax return. Appellant argues that the chancellor erred by deviating from the child support chart by granting the tax exemptions to appellee in the absence of any express finding that the chart amount was unjust or inappropriate. We agree. We have held that it is a deviation from the child support chart to award the payor dependency tax exemptions without providing the required written findings. Fontenot v. Fontenot, 49 Ark. App. 106, 898 S.W.2d 55 (1995). Consequently, we direct the chancellor on remand to enter an order consistent with this opinion.

The sixth and final issue we address is whether the chancellor erred in refusing to admit appellee's deposition into evidence. Appellant argues that appellee's deposition contains testimony that is contrary to the chancellor's determination that appellee was entitled to an $82,000 credit for his 1993 crop-sale proceeds. Specifically, appellant argues that appellee testified that he had the marital home, the farmland, the vehicles, the farm equipment, Riceland stock, cattle, and the leased land as assets and that there were no other assets. Appellant also argues that appellee failed to list the $82,000 from the sale of his 1993 crop as an asset and that this was prejudicial to appellant. Additionally, appellant asserts that she was prejudiced by the refusal to admit the deposition because, although the appellee testified in his deposition that the leased land formed an integral part of his farming operation that generated sixty-five percent of his gross revenues, the chancellor failed toinclude this lease as a marital asset. Appellant argues that Ark. R. Civ. P. 32(a)(2) permits the deposition of a party to be used by the adverse party at trial for any purpose and that the trial court therefore erred in refusing to admit appellee's deposition. We need not address the merits of this issue because it is clear that any error that may have occurred was harmless. The record shows that, on cross-examination at trial, appellee did in fact testify that he leased property for $22,750 and that it is an integral part of his farming operation. Additionally, appellee testified that he sold his 1993 crop and realized the income of approximately $82,000 after the marriage. Therefore, even if appellee's deposition testimony should have been admitted, the denial of the request to admit the deposition into evidence constituted harmless error because appellee testified in court on these facts.

In summary, we affirm the chancellor regarding the leasehold interest and the denial of the use of appellee's deposition, we do not reach appellant's third and fourth issues, and we reverse and remand on appellant's remaining issues for consideration consistent with this opinion.

On de novo review of a fully developed chancery record, where we can plainly see where the equities lie, we may enter the order the chancellor should have entered. Mathews v. Oglesby, 59 Ark. App. 127, 952 S.W.2d 684 (1997). However, we may decline to do so if justice will be better served by a remand. Id.

Affirmed in part; reversed and remanded in part.

Neal, Bird, Robbins, Jennings, and Baker, JJ., agree.