ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

GLENNA L. MASSEY

APPELLANT

V.

WALTON L. MASSEY

APPELLEE

CA03-138

September 17, 2003

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[NO. E 2001-516]

HON. DENNIS C. SUTTERFIELD,

JUDGE

AFFIRMED

John Mauzy Pittman, Judge

Glenna Massey appeals from that part of a divorce decree awarding certain funds to appellee, Walton Massey, as his non-marital property. She contends that the trial court clearly erred in so finding. We affirm.

The parties were married in 1974. They separated in 1997 and divorced in 2002. Appellee owned a parcel of real property prior to his marriage to appellant. He sold this property while married to appellant and purchased another parcel with the proceeds. He sold this second parcel prior to his divorce to appellant, financing the sale himself. The purchaser paid off the debt on the property in 2002. The parties' divorce suit was ongoing at this time, and the purchaser paid the outstanding balance of $57,183.06 into the registry of the court for distribution at the close of the divorce proceedings. The trial court found that the property from which these funds were derived had been the separate property of the appellee, traceable to property appellee had owned prior to the marriage, and was therefore non-marital in character. The court also found that it would, in any event, be inequitable to divide these proceeds with appellant because she had not contributed to the property. The trial court ordered that the $57,183.06 be paid in full to appellee, and this appeal followed.

For reversal, appellant contends that the trial court clearly erred in finding that the funds were the sole property of appellee, arguing that the trial court erroneously applied the law retroactively and unconstitutionally interfered with appellant's contractual rights. Neither of these issues were mentioned below. The parties agreed at trial that the only issue for the trial court to determine was the factual one of whether the assets were marital or non-marital property. There was no objection to, or ruling concerning, retroactive statutory application or improper interference with contractual rights. Appellant must properly raise and obtain rulings on issues in order to preserve them for appellate review. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999); Williams v. Williams, ___ Ark. App. ___, 108 S.W.3d 629 (May 28, 2003). Appellant failed to do so in this case, and we will not address the questions for the first time on appeal.

Appellant also argues that a presumption arose that she obtained an interest in the property by gift, and that appellee did not overcome the presumption by clear and convincing evidence. We find no error. Appellee testified that the property he sold was paid for with non-marital funds and had been deeded solely to him. Although the deed to appellee's purchaser showed the names of both appellee and appellant as grantors, appellee testified that this was done because he believed that he needed to do so to release appellant's dower interest and effectively transfer the property. Finally, although there was evidence that payments on the property were made to both appellee and appellant following their separation, appellee testified that this was at the direction of the judge following a temporary hearing in a former, abortive divorce proceeding, and that the judge instructed appellant that she would have to reimburse appellee for those payments should the funds be determined to be appellee's sole property. Given the equivocal nature of the evidence, we think that the question hinges on appellee's credibility. In that regard, we defer to the trial judge. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). We cannot say that the trial court's finding was clearly erroneous.

Finally, appellant argues that the trial court erred in permitting appellee to withdraw one-half of the funds from the registry of the court before the appeal was filed. This argument overlooks the fact that appellant was only seeking one-half of the funds, and one-half of the funds continued to be held by the court. We see no possible harm to appellant. However, even if she could have somehow been harmed by appellee's withdrawal of the funds had she won her appeal, she could not possibly have been harmed given that she has not won her appeal. The question is therefore academic at best and will not be addressed. See Tortorich v. Tortorich, 50 Ark. App. 114, 902 S.W.2d 247 (1995).

Affirmed.

Gladwin and Baker, JJ., agree.