Foster v. Foster

472 S.W.3d 151

Christopher Foster, Appellant

v.Leah Foster, Appellee.

No. CV–14–1100

Court of Appeals of Arkansas, DIVISIONS II & III.

Opinion Delivered September 30, 2015

Gill Ragon Owen, P.A., Little Rock, by: Sharon Elizabeth Echols and Christopher L. Travis, for appellant.

Q. Byrum Hurst, P.A., by: Q. Byrum Hurst, Hot Springs, for appellee.

LARRY D. VAUGHT, Judge

Appellant Christopher Foster appeals the divorce decree entered by the Garland County Circuit Court on July 28, 2014. He challenges the awards of rehabilitative alimony and attorney's fees and costs to appellee Leah Foster. We affirm.

Christopher and Leah were married on February 12, 2002. Three children were born of the marriage: AF (age eleven), EF (age seven), and FF (age five). Christopher filed for divorce, alleging general indignities, in September 2013. Leah answered, challenging the grounds for divorce and requesting alimony, child support, and an unequal distribution of the marital assets. Leah subsequently counterclaimed for divorce on the ground of general indignities, again requesting alimony, child support, and an unequal distribution of the marital assets.

A hearing was held on March 19, 2014, to resolve the distribution of the marital property, child support, alimony, and attorney's fees.¹ Testimony revealed that, during the marriage, Christopher was the primary income earner, with an average annual net income of approximately $124,000 in 2011 and 2012. Evidence also showed that Leah, a stay-at-home mother, had been the primary care giver to the children. While she had an active real-estate license, she earned no appreciable income from that job because of her responsibilities with the children. Leah testified that, unlike Christopher, she only had a high-school education. There was testimony that although the family lived in Hot Springs, Christopher worked in Little Rock, and his job prevented him from providing help with the children.

Leah testified to her plan for rehabilitative alimony. She believed that she should receive $5000 per month for the first three years, $2500 per month for the next two years, and $2000 per month for the last three years. She said that this would allow her to transition into the workforce over time, while still allowing her to fulfill her parental responsibilities. Leah also requested attorney's fees and costs, citing the economic imbalance between the parties. She introduced into evidence a cost-and-fee statement from her attorney's office in support of her request. Counsel for Christopher was able to highlight several inconsistencies in the fee statement during cross-examination.

The trial court entered the decree of divorce in July 2014. In the decree, the trial court approved the parties' property-settlement agreement, awarded Leah child support, and awarded her rehabilitative alimony pursuant to Arkansas Code Annotated section 9–12–312(b), in the amount of $4500 per month for the first three years, $3500 per month for the next three years, and $2500 per month for the final four years. The trial court also awarded Leah $14,190 in attorney's fees and $647.18 in costs.

On appeal, Christopher first argues that the trial court misinterpreted Act 1487, which amended Arkansas Code Annotated section 9–12–312² to specifically include a provision for rehabilitative alimony. It is his contention that the general assembly, by amending the statute in this regard, intended to create a clear distinction between permanent alimony and rehabilitative alimony. More specifically, he contends that the trial court erroneously applied the traditional factors relating to permanent alimony and that these factors are not applicable to rehabilitative alimony.

Our courts recognized rehabilitative alimony in 1990, when this court considered Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990). The Bolan court defined rehabilitative alimony as alimony that is payable for a short, specified duration of time. Id. at 67 n. 1, 796 S.W.2d at 360 n. 1. The primary purpose of rehabilitative alimony is to afford the recipient a specific period of time in which to become self-supportive. Id., 796 S.W.2d at 360 n. 1. In Bolan, and every rehabilitative-alimony case thereafter, this court has conducted the same analysis in determining the appropriateness of the award—including a consideration of the factors applying to permanent alimony. The primary factor is the financial need of one spouse and the other spouse's ability to pay. Spears v. Spears, 2013 Ark. App. 535, at 6, 2013 WL 5424819. Other factors include the financial circumstances of both parties; the couple's past standard of living; the value of jointly owned property; the amount and nature of the income, both current and anticipated, of both parties; the extent and nature of the resources and assets of each party; the amount of each party's spendable income; the earning ability and capacity of both parties; the disposition of the homestead or jointly owned property; the condition of health and medical needs of the parties; and the duration of the marriage. Id.

Nothing in the statute's amendment changed this analysis. If the general assembly had intended to change this analysis, it could have so provided. It did not.

Moreover, it is instructive that the general assembly's amendment made the provision of a rehabilitative-alimony plan discretionary, not mandatory. Thus, the general assembly clearly contemplated that the trial court must use the traditional factors when determining whether rehabilitative alimony is appropriate, and, if so, the amount and duration of the award. The General assembly did not expressly provide any factors for the trial court's determination. Our case law, however, does. Dozier v. Dozier, 2014 Ark. App. 78, at 4–5, 432 S.W.3d 82, 85 (applying the traditional alimony factors in a rehabilitative-alimony case). And the general assembly is presumed to have full knowledge of our judicial determinations. McLeod v. Santa Fe T rail Transp. Co., 205 Ark. 225, 168 S.W.2d 413 (1943) (holding that to aid in the construction of a statute, it is presumed that the legislature, in enacting a law, does so with the full knowledge of the constitutional scope of its powers, of prior legislation on the same subject, and of judicial decisions under the preexisting law). Therefore, we hold that the language of Act 1487 does not prevent the trial court from awarding rehabilitative alimony, based upon consideration of the well-settled factors, in an amount that it finds reasonable under the circumstances.

In awarding Leah alimony, the trial court found that there was an economic imbalance in the earning power of the parties. The court noted that Christopher had a financial degree, while Leah had only a high school diploma. As such, Christopher had been the primary source of income for the family. Moreover, his large income was extremely liquid as opposed to Leah's assets. And while Leah had a license to sell real estate, she failed to earn any appreciable income during the marriage. The trial court also noted that her ability to earn any significant income from real estate was diminished by the downturn in the real-estate market and that the responsibility of caring for their active children, given Christopher's busy schedule and employment in a different city, impeded her economic activities outside the home. As a result, the trial court awarded rehabilitative alimony, but structured it in such a way that it would be (1) reduced as the children matured and needed less parental involvement and (2) continued for a reasonable time thereafter as might be necessary for her to rehabilitate herself for employment.

The decision whether to award alimony is a matter that lies within the trial court's sound discretion, and on appeal, this court will not reverse the trial court's decision to award alimony absent an abuse of that discretion. Delgado v. Delgado, 2012 Ark. App. 100, at 6, 389 S.W.3d 52, 57. An abuse of discretion means discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Id., 389 S.W.3d at 57. The trial court is in the best position to view the needs of the parties in connection with an alimony award. Jones v. Jones, 2014 Ark. App. 614, at 3, 447 S.W.3d 599, 601.

We hold that the trial court considered the relative financial stability of the parties and the potential for income based on their respective positions and determined that alimony was appropriate. Additionally, the trial court rejected the plan as proposed, modifying it slightly as to the amounts and time periods of the payments, which demonstrated the exercise of thoughtful and due consideration. Therefore, we hold that the trial court did not abuse its discretion in awarding Leah rehabilitative alimony.

Christopher argues that the rehabilitative-alimony award is improper because it did not include a "plan of rehabilitation" pursuant to section 9–12–312. He contends that there was no actual "rehabilitation" involved in the award because it did not include a plan with quantifiable academic or technical training in order to reach a specific career goal or milestone, and it essentially allowed Leah to continue to be a stay-at-home mom.

The statute provides that "the payor may request or the court may require the recipient to provide a plan of rehabilitation for the court to consider." Ark. Code Ann. § 9–12–312(b)(2) (emphasis added). The language is discretionary, not mandatory; therefore, a rehabilitation plan is not required under the statute. Moreover, the statute does not specify what information the plan must include. While Leah's rehabilitation plan did not provide details as to how or when she would become self-sufficient, the statute does not require such details, and we reject Christopher's narrow construction of the statute.

The statute simply requires that the alimony award be made under "proper circumstances concerning rehabilitation." Ark. Code Ann. § 9–12–312(b)(1)....