The opinion
JOHN MAUZY PITTMAN, Judge, dissenting.
This is an appeal from an order dividing marital property. The only issue preserved for appeal concerns the status of the hunting club membership — was it marital or nonmarital property? The trial court found that it was nonmarital property. The majority holds that this finding was clearly erroneous. I cannot agree.
The trial court’s finding that the property was nonmarital was based on appellee’s testimony, which the trial court found to be credible:
I used my personal money to purchase an interest in Jackson Point [Hunting Club]. It was money I’d saved before I got married. I paid thirty-two thousand, five hundred. I had to redo Jackson Point in '84. Defendant’s Exhibit 2 is showing where I paid for it in '84. None of [appellant’s] money went into buying Jackson Point.
Because the property was acquired during the marriage, appellee was required to rebut the presumption that the property was marital with clear and convincing evidence. The testimony quoted above, if believed, is clearly sufficient to rebut this presumption.
Clear and convincing evidence is evidence by a credible witness whose memory of the facts about which he testifies is distinct, whose narration of the details is exact and in due order, and whose testimony is so direct, weighty, and convincing as to enable the factfinder to come to a clear conviction, without hesitance, of the truth of the facts related. It is simply that degree of proof that I9WÍII produce in the trier of fact a firm conviction of the allegations sought to be established. Our test on review is not whether we are convinced that there was clear and convincing evidence to support the trial judge’s finding, but whether we can say that the finding is clearly erroneous.
First National Bank v. Rush, 30 Ark.App. 272, 279 , 785 S.W.2d 474, 479 (1990). The Rush court held that the trial court did not err in accepting uncorroborated testimony of interested parties as clear and convincing evidence because the testimony satisfied this standard.
I disagree with the majority’s conclusion that there is no relevance to evidence, in the form of appellee’s W2 forms, to show that he made sufficient money before his marriage to pay for the club membership that was bought shortly thereafter. To my mind, this evidence — and the evidence that the club membership was taken in appellee’s name alone — appear to corroborate appellee’s testimony that he purchased the club membership solely with nonmarital funds earned before the marriage. But this is a trifle. My overriding concern is that the majority has given no deference to the trial judge’s superior opportunity to assess the witness’s credibility. The appellee’s testimony was not inherently improbable; to the contrary, it was distinct, detailed, and direct. If believed, it would unquestionably support the trial judge’s finding. The essential question, then, was whether appellee testified in a forthright and believable manner. We did not witness this testimony, but the trial judge did and thus had the advantage of body language, eye contact, tone of voice, and the plethora of nonverbal indicia of credibility that are not recorded in the transcript of the proceeding. I think that, if we are to hold under such circumstances that a trial judge’s credibility determination was clearly wrong, we should be able to clearly explain our reasoning.
|10I respectfully dissent.
ROBBINS, J., joins in this dissent.