dissenting.
I respectfully dissent from the majority’s opinion because it completely ignores this court’s long-recognized standard of review and instead substitutes its own opinion for that of the circuit court. It is axiomatic that when we review a domestic-relations ease, we consider the evidence de novo and will not reverse the circuit court’s findings unless they are clearly erroneous. Baber v. Baber, 2011 Ark. 40, 378 S.W.3d 699. The majority fails to abide by this standard.
The record in this case is replete with testimony, which I will set forth below since it is notably absent from the majority’s opinion, that supported the circuit court’s finding that Christian Snowden Kelly’s (“Christy”) interest in TRM, Inc., was nonmarital property h i pursuant to Ark.Code Ann. § 9-12-315 (Repl.2009). Despite the overwhelming evidence presented, the majority summarily concludes that the circuit court clearly erred in reaching this conclusion. Nowhere in its opinion, however, does the majority explain in what regard the circuit court’s decision was “arbitrary or groundless.” See, e.g., Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006). Quite to the contrary, the record demonstrates, as evidenced by the majority’s recitation of the pertinent orders, that the circuit court carefully considered and decided that the property was nonmarital.
Before turning to the analysis of whether Christy’s interest in TRM was marital or nonmarital property, I think it is necessary to set forth certain pertinent facts. David Snowden, Sr., Christy’s father, was a founding partner in Tarco, Inc., an Arkansas company that manufactures roofing materials. The business grew and came to include Tarco of Texas, which is a sister company engaged in the same business as Tarco, but in a different geographic location. Prior to 1996, David Sr. and his wife Judy owned all the stock in the two companies. Then, in 1996, the Snowdens transferred thirty percent of their interests in the companies to David Jr. and Christy, with fifty-five percent going to David Jr. and forty-five percent allocated to Christy. Around this time, David Sr. started looking into business opportunities in Pennsylvania, with the possibility of building a plant there, and eventually, Tarco Roofing Materials, Inc. (“TRM”), was opened there.
During the course of the divorce proceedings, the parties agreed that Christy’s interests in Tarco and Tarco of Texas were nonmarital property and not subject to division. But, a dispute arose regarding the classification of Christy’s ownership interest in TRM. She asserted |12that it was a gift and was therefore nonmarital property or, alternatively, was acquired with nonmarital funds. John claimed that the property was marital because David Sr. could not have gifted her an interest in something he never owned and that her interest was acquired with a loan during the marriage; thus, John asserted that her interest in TRM was marital property and subject to an equitable division.
Marital property is all property acquired by either spouse subsequent to the marriage, with certain exceptions set forth in section 9 — 12—315(b). One such exception is property acquired by gift. Ark.Code Ann. § 9 — 12—315(b)(1). Property acquired in exchange for property acquired by gift is also excepted from the definition of marital property. Ark.Code Ann. § 9-12-315(b)(2). Thus, the question for us to decide is whether Christy’s ownership in TRM was either a gift or acquired in exchange for property acquired by gift.
Under Arkansas law, a valid inter vivos gift is effective when the following elements are proved by clear and convincing evidence: (1) the donor was of sound mind; (2) an actual delivery of the property took place; (3) the donor clearly intended to make an immediate, present, and final gift; (4) the donor unconditionally released all future dominion and control over the property; and (5) the donee accepted the gift. O’Fallon v. O’Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000). The rule with respect to delivery of gifts is less strictly applied to transactions between family members. Chalmers v. Chalmers, 327 Ark. 141, 937 S.W.2d 171 (1997). Even so, delivery must occur for a gift to be effective. Id. This court further explained in Chalmers that the gravamen of delivery is a showing of an act or acts on the part of the [ ^putative donor displaying an intention or purpose to part with dominion over the object of the gift and to confer it on some other person. Id. Express words or particular conduct are not required when reasonable minds would conclude from attending circumstances that the purpose was present. Id.; Carlson v. Carlson, 224 Ark. 284, 273 S.W.2d 542 (1954).
Here, John takes issue with the circuit court’s finding that David Sr. gifted Christy the “opportunity” to own an interest in TRM. Specifically, John asserts that an “opportunity” to own something is not an enforceable property right that can be gifted. The majority runs with this argument and concludes that Christy’s interest in TRM was not acquired by gift because Arkansas has heretofore never recognized the gift of a business opportunity and will not do so now. Here, the circuit court was presented with a highly unusual fact situation where there was no precedent from the appellate courts to offer guidance, and made a reasoned decision based on the evidence presented. Now, the majority is reversing that decision because we have not previously recognized such a gift. What message does this send to the bench? I submit that today’s majority opinion will have a chilling effect on a circuit judge’s ability to decide complex issues when there is little or no legal authority available. Equally troubling is the majority’s refusal to acknowledge the stock Christy received in TRM as a gift because it was received in exchange for a note receivable. Both of these conclusions are incorrect and unsupported by the record.
The majority, like John, too narrowly focus on the term “gift of opportunity” to support its erroneous conclusion that this is marital property. In reality, the record clearly demonstrates that David Sr. gifted Christy and David Jr. the goodwill associated with the |14Tarco businesses. Although goodwill is intangible, this court has recognized that it is an asset that may be transferred or purchased for consideration. See Williams v. Spelic, 311 Ark. 279, 844 S.W.2d 305 (1992) (holding that when a business purchases goodwill and a trade name, it acquires a valuable property right, and that is the right to inform the public that it possesses the experience and skill associated with the previous enterprise). And, here, David Sr., as the majority shareholder in the original two Tarco businesses, was the only person who could have made such a gift. The following testimony clearly demonstrates the character of the asset that David Sr. gifted to Christy and supports the circuit court’s conclusion that the asset was nonmarital property.
David Sr. testified that before taking action in Pennsylvania, he consulted Car-rold Ray, his attorney, and Robert Winter, his accountant. An attorney was retained to create a separate corporation in Pennsylvania, with the company’s name to be put in David Jr.’s and Christy’s name. In order to start TRM, David Sr. and Judy put up stock in Tarco and Tarco of Texas as collateral to borrow the money needed to start the company. David Sr. stated that he and Judy guaranteed the necessary loans to get the company off the ground with the $6 million needed for capitalization. But, pursuant to certain estate-planning advice, none of the shares in TRM were ever put in David Sr.’s or Judy’s names. In explaining that he intended to make a gift to Christy and David Jr., David Sr. testified that
[w]hen we had the stock issued in the name of [David Jr.] and in the name of [Christy], they got a piece of paper that says Tarco Incorporated. It’s their name on it. They can take that piece of paper, stick it on the wall, and it isn’t worth the parchment you all got when you graduated from law school. However, what that piece of paper 11sdid do, it gave them an opportunity to own an asset that ... could be financially rewarding. So do I feel that I gave them something, you bet I do.... I feel like I gave them an opportunity to have a financial reward that would support them in the lifestyle that both my wife and I have been blessed to have lived all these years.
David Sr. reiterated that he intended to make a gift exclusively to his son and daughter. On cross-examination, David Sr. admitted that he never owned any stock in TRM. He further explained that the shares were issued on May 31, 1996, and at that time there was a shareholder receivable from Christy for $22,500 and from David Jr. for $27,500. But, he reiterated that he believed that he was gifting to Christy and David Jr. “[t]he opportunities to own an asset that had a great value to it.”
Ray, who advised members of the Snow-den family on estate issues, testified as an expert on behalf of Christy. He stated that he was notified in late 1995 that David Sr. was concerned about possible estate taxes, and he met with him to discuss ways to reduce the value of the estate. Once he learned of plans for a possible new company in Pennsylvania, Ray advised that it would be a good opportunity to put the company in his children’s names for estate-planning purposes and not put it in David Sr.’s name. Ray also explained that it was only David Sr.’s opportunity and only he could go up there from a legal standpoint and a financial standpoint. According to Ray, David Sr.
still controlled 70 percent. So he was still in control even after he made these gifts. If anybody was going to form a company up there in Pennsylvania and use the Tarco name and all the intangibles that go with it, David Senior was the one that controlled that as the owner of these 2 companies.
Ray further elaborated that David Sr. owned and operated the opportunity to go to 1 ^Pennsylvania and form this company, as the new company shared everything from product name to the same marketing and legal team with David Sr.’s other Tar-co companies. According to Ray, David Sr. definitely had donative intent when putting the company in his children’s names. Ray further explained that although the corporate resolution stated that $50,000 in capital was contributed— $22,500 from Christy and $27,500 from David Jr. — such money was not contributed on that day but was paid at the end of 1999 when Robert Winter advised that the sums needed to be paid and removed from the books. Ray also testified that neither party ever signed a note for the indebtedness. According to Ray, the $50,000 was paid from dividends that were paid to David Jr. and Christy from Tarco. Ray ultimately opined that Christy’s interest in TRM was nonmarital because it qualified as a gift pursuant to section 9-12-315(b)(1); or, alternatively, it was property acquired in exchange for property acquired by a gift pursuant to section 9-12-315(b)(2).
Cheryl Shuffield, a certified public accountant, testified that the property was nonmarital pursuant to section 9-12-315(b)(1) because it was property acquired by a gift in that David Sr. gifted Christy the opportunity to acquire the interest in TRM. According to Shuffield, that opportunity had three components: (1) the legal rights associated with use of the Tarco name and Tarco brands; (2) the financial consideration given in guaranteeing the corporate indebtedness of $6 million; and (3) the intangibles that were implicitly and explicitly transferred to TRM from its sister companies, Tarco, Inc., and Tarco of Texas. Shuffield further stated that Christy’s interest in TRM was nonmarital property under the source-ofjfunds17 rule because Christy had acquired her interest in TRM in exchange for dividends she received from Tarco.
Mike Lax, a tax attorney, testified that estate planning is all about shifting opportunities and that constructive and indirect gifts occur in everyday life, such as parents paying for a daughter’s wedding. There is not a transfer of funds, but a constructive gift is conferred on the child, he explained. He stated that a transfer can occur because the person who controls the intangible property right has the ability to make the decision. Lax then stated that in his opinion Christy’s interest in TRM was a gift, as it was conveyed by the person who had one hundred percent of the ownership interest of that opportunity and he chose how to convey it, and it need not be reflected on a gift-tax return. Lax acknowledged that at the least the transaction qualified as a constructive gift, particularly in light of David Sr.’s clear intent to make a gift to his children.
John presented little evidence to rebut the testimony that demonstrated the non-marital character of the asset. He presented testimony from Richard Schwartz, a certified public accountant. Schwartz testified that he found no evidence to indicate that Christy’s interest in TRM was acquired by way of a gift. He said in looking at the documents related to the formation of TRM, as well as its ledgers and the stock certificates that were issued to Christy and David Jr., it was clear that Christy used money from her Tarco dividends to pay off the note receivable of $22,500, that was in effect a debt of Christy and John’s. Schwartz testified that the stock in TRM was acquired during the marriage with a $22,500 note receivable to 11STRM and was, thus, marital property.
Brantly Buck, a tax attorney, testified that he reviewed the organization and related documents of TRM. Buck opined that the shares in the corporation were issued to David Jr. and Christy for consideration of $50,000, that they were never transferred by David Sr., as he never owned the shares, and thus the shares were owned by Christy from the beginning as marital property. He stated that it was irrelevant whether the $50,000 was characterized as a receivable, a note, or a loan to a shareholder because it is an obligation that is due and payable. Upon questioning by the court, however, Buck stated that if Christy had paid the $50,000 debt with nonmarital funds at the time of the company’s creation, instead of several years later, the stock would have been nonmarital property.
Thus, the testimony presented to refute the contention that the asset was nonmari-tal property established two things: (1) that David Sr. never owned the stock; and (2) there was an accounting entry on the books of TRM that indicated Christy was responsible for paying $22,500 into the corporation. These two facts fail to support the majority’s conclusion that Christy’s interest in TRM was marital property. Again, the majority is so narrowly focused on those two things that it loses sight of the overwhelming testimony that this was intended to be, and was in fact, a gift from David Sr. to Christy. As we have previously recognized, the key determination in establishing that a gift has been made is whether reasonable minds would conclude from attending circumstances that the purpose was present. See Chalmers, 327 Ark. 141, 937 S.W.2d 171. The fact that David Sr. did not own a specific interest in TRM is irrelevant to the issue of his intent to make a gift, as the evidence clearly demonstrated that |inbut for David Sr.’s gift of goodwill, including his efforts and willingness to financially guarantee the new corporation, there would have been no creation of the new company or issuance of its stock. Likewise, the fact that a ledger entry showed that Christy was to pay $22,500 into TRM does not negate the fact that her interest in TRM was gifted to her by David Sr.
In conclusion the majority has substituted its own opinion for the well-reasoned and well-supported opinion of the circuit court. It is clear to me that the circuit court’s opinion was not only legally sound, but also equitable. Even if the circuit court had deemed the interest to be marital, it could have still awarded all the interest in TRM to Christy in an unequal division of property, which is allowed under section 9-12-315, and which would be equitable under the facts of this case.
For the reasons stated, I respectfully dissent.
HENRY, J., joins in this dissent.