dissenting. I dissent from the majority’s reversal of this case because the trial judge’s findings in support of the unequal distribution of the wife’s retirement accounts were not clearly erroneous. The trial judge on remand found that the retirement accounts were accumulated by the wife through her employment, the husband made no contribution to their acquisition, and the husband benefited from the income of the wife throughout their marriage. Additionally, the court found no evidence that the defendant made any substantial contribution to the marital estate. In our decision remanding the case we held:
While we agree that no specific number of factors need be given, we disagree that simply reciting the source of the funds equates to a proper consideration of the contribution of each party in the acquisition, preservation, or appreciation of marital property. Although Ms. Baxley’s earnings were the source of the funds in the investment account, the trial court’s order makes no findings as to the contribution of each party as contemplated by Ark. Code Ann. § 9-12-315(a)(l)(A)(vii). (Emphasis added.) In fact, the order makes no finding at all concerning Mr. Baxley’s contribution, or lack thereof, and, consequently, there is no explanation as to why an equal division of the marital property was inequitable. In the absence of such an explanation, and in light of the presumption that marital property will be divided equally, we must reverse and remand for entry of an order that demonstrates proper consideration of the statutory factors. See Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988) (holding that the failure of the trial judge to explain why marital property was divided unequally between the parties required reversal and remand of award).
This quoted section of our opinion contained a footnote emphasizing that these contributions may be non-monetary. See Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002) (one spouse’s contribution to the marital property through providing household services, rearing children, and attending to other spouse’s health needs was of equal value to the other spouse’s producing income through farm labor and contributed to the farm’s appreciation in value); cf. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001) (finding that there was no contribution to the martial property by the spouse in cleaning up after himself and taking care of the finances where his handling of the finances enabled him to defraud the other spouse by incurring debt in her name without her knowledge).
Our directions on remand indicated that we were seeking identification by the trial judge of contributions including those of a non-monetary nature. Non-monetary contributions were critical in the analysis of both Stout v. Stout, 4 Ark. App. 266, 630 S.W.2d 53 (1982) and Stuart v. Stuart, 280 Ark. 546, 660 S.W.2d 162 (1983). Neither Stuart nor Stout awarded marital property based on gender or upon identification of the primary breadwinner. Instead, our court in Stout emphasized that the alienation of the parties resulted in a lack of contribution to the marital estate by the wife. The wife in Stout, like the husband in Keathley, used marital resources during the course of the marriage and then by her actions caused a loss to the marital estate. Furthermore, because she and her husband maintained separate households during much of the marriage, there was no evidence of non-monetary contributions on her part such as household services or love and affection to support his monetary acquisitions.1
In Stuart the trial court’s equal division of property was also affirmed based upon consideration of non-monetary contributions to the marital estate:
About 20 years after the parties were married Mrs. Stuart brought this suit for divorce, on the ground of indignities. Stuart did not contest the divorce, but he did resist his wife’s assertion that she was entided to more than half of the marital property because she had been the principal breadwinner. This appeal is from the chancellor’s equal division of all the marital property, some of which had been acquired jointly and some in Mrs. Stuart’s name only.
At the time of their marriage Stuart was a painter and Mrs. Stuart a court reporter. Stuart suffered a work-related injury that kept him from working most of the time. He took care of the house and yard, did most of the cooking, worked when he was able to, and helped in his wife’s business by proofreading and delivering transcripts. Mrs. Stuart worked steadily as a regular or free-lance court reporter, earning about two thirds of the family income. She testified that she knew what is meant by a feme sole and as such intended to acquire separate property in her own name.
The chancellor was right in dividing the marital property equally. The appellant relies in part on our constitutional provision that a married woman may acquire and transfer property as if she were a feme sole, with such property being free from her husband’s debts. Ark. Const, art. 9, § 7 (1874). That provision was meant to put a wife on an equal footing with her husband in the acquisition and transfer of property, but it does not purport to clothe the wife with superior property rights in the event of a divorce.
Well before the many recent cases disapproving gender-based distinctions between spouses, we recognized the power of the court in a divorce case to divide property acquired by the joint efforts of the parties, even though title was in the name of only one spouse. Stephens v. Stephens, 226 Ark. 219, 288 S.W.2d 957 (1956). That principle has been embodied in our recent statute governing the division of marital property, Act 705 of 1979,for it directs the court to consider “services as a homemaker” (usually those of the wife) as a contribution to the acquisition of property during the marriage.
Ark. Stat. Ann. § 34-1214(A)(l)(8) (Supp.1983). We have said that the new statute was made applicable to all cases filed after its effective date and necessarily affected property acquired before that date. Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981). If that were not so, equality between the sexes might not be achieved for a generation or more. The constitutionality of similar statutes has recently been upheld in several states, not only because public policy supports the recognition of the homemaker’s efforts as contributing to the acquisition of property during the marriage, but also because under pre-existing law a married person had no reasonable expectation that his or her property would be immune from an equitable division upon termination of the marriage. Kujawinski v. Kujawinski, 71 Ill.2d 563, 17 Ill.Dec. 801, 376 N.E.2d 1382 (1978); Fournier v. Fournier, 376 A.2d 100 (Me.1977); Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496 (1974). We agree with those decisions.
As a second point for reversal the appellant argues that it is inequitable to divide the property equally when her earnings formed the greater part of the purchase price. To sustain that argument in this case would put the law right back where it was before gender-based distinctions were nullified, for the same contention would be made when it was the husband who had been the breadwinner — the usual situation.
Stuart v. Stuart, 280 Ark. at 162-63, 660 S.W.2d at 547-49.
Unlike Stuart, in this case there was no evidence before the trial judge that the husband took care of the house and yard, did most of the cooking, worked when he was able to, or otherwise helped his wife in any way. More like the wife in Stout, the evidence was that his spouse supported him during the course of the marriage, while he contributed nothing to the acquisition of marital assets, monetarily or otherwise. Nothing in the trial judge’s findings indicates that her decision to make an unequal distribution of the retirement account was based on gender. Nor does it appear that the decision was based on a finding that the wife was the principal breadwinner during the marriage.
The trial judge on remand calculated how much money the husband in this case spent during the course of the marriage pufely on his own whims while the necessities of housing, food, utilities, etc., were being provided for solely by the wife’s contributions. Based on her calculations, the trial judge reached a figure that was “pretty close” to one-half of what was in the retirement account. Furthermore, the wife had become disabled during the marriage, was younger than the husband, and would be unable to continue working to earn the income she had previously enjoyed. In contrast, the husband was disabled prior to the marriage and his earning potential was unchanged.
Given the trial judge’s findings after consideration of these factors, in accordance with our directions on remand, the decision to make an unequal division of the retirement account was not clearly erroneous and should be affirmed.
Vaught, J., agrees.If Stout is interpreted as holding that an unequal division of marital assets can be made on the basis of gender or by identification of the primary breadwinner, I join the majority in saying it should be overruled.