Roberts v. Roberts

2023 Ark. App. 438

676 S.W.3d 381

Carl ROBERTS, Appellant

v.Karen ROBERTS, Appellee

No. CV-22-410

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered October 4, 2023

Rhoads & Armstrong, PLLC, by: Johnnie Emberton Rhoads, Rogers, for appellant.

Crown Law, by: Matt Kezhaya, for appellee.

STEPHANIE POTTER BARRETT, Judge

Appellant Carl Roberts appeals the Benton County Circuit Court's refusal to terminate his monthly alimony obligation to his former spouse, appellee Karen Roberts. Although the circuit court reduced Carl's alimony payments as he requested, he argues that the circuit court erred in the amount of reduction and in failing to make the reduction retroactive to the date he filed his petition to modify alimony. We affirm the circuit court's decision.

The parties were married on February 12, 1977, and divorced on August 6, 2010. In the divorce decree, in addition to dividing the parties’ marital property, the circuit court awarded Karen $3000 a month in alimony until she remarried or died, noting that the parties had been married for thirty-three years; Karen had been a stay-at-home mom who had limited vocational abilities and minimal prospects for employment; and she had cardiac issues. The

decree provided that Carl's alimony obligation could be adjusted if his circumstances changed in the future.

On July 30, 2013, the circuit court entered an order denying a request from Carl to modify his $3000 monthly alimony obligation. In denying this request, the circuit court noted that Karen had maintained a home equivalent to Carl's home before Carl purchased a substantially larger and more expensive home; that even though Carl had lost his pharmacist job at USA Drug and was only partially employed, he had made no effort to sell the new, larger house; that Carl had purchased new furniture, sent his new wife to the casino, and had taken trips to North Carolina and New York—luxuries Karen had not enjoyed; that Carl continued to make church contributions that were beyond the amount he could afford based on his current employment; that Carl had essentially quit looking for full-time employment; and that although Carl's new home was held jointly in his and his new wife's names, the new wife contributed very little financially to the household expenses. The circuit court found that a modification of alimony was not warranted: Karen's needs and need for income had not changed, and the alimony was modest in comparison to the income enjoyed by the parties at the time of divorce. The circuit court stated in its order that Karen had managed to get by with her current alimony, and it suggested that Carl make changes as well to get by and still meet his alimony obligation.

On March 30, 2015, the parties filed a joint agreed order reducing Carl's alimony obligation to $2500 a month, effective April 1, 2015. Carl filed another motion to modify alimony on March 19, 2021, alleging that there had been a material and substantial change

in circumstances since the last court order regarding alimony and that he was entitled to a reduction or termination of his alimony obligation. Carl's basis for this request was that he was unemployed due to a bout with cancer, and he was living off his Social Security and retirement holdings.

The circuit court entered an order on March 10, 2022, finding that a material change in circumstances had occurred since entry of the last order modifying alimony—Carl had now retired, and his primary income was $1995 in monthly Social Security. The circuit court, after reviewing the parties’ financial statuses, including the significant assets still retained by each party, reduced Carl's monthly alimony obligation to $2000 a month. Carl filed a motion for reconsideration on the same day the order reducing his alimony was filed; in it, for the first time, Carl asserted that the circuit court erred in not making the alimony reduction retroactive to the date he filed his motion to reduce his alimony obligation. This motion was not ruled on by the circuit court and was deemed denied, and Carl timely filed his notice of appeal to this court.

Domestic-relations cases are reviewed de novo, and a circuit court's finding of fact will not be reversed unless it is clearly erroneous. Richardson v. Richardson , 2023 Ark. App. 279. A circuit court's decision regarding alimony is a matter that lies within its sound discretion and will not be reversed on appeal absent an abuse of that discretion; an abuse of discretion is discretion exercised thoughtlessly and without due consideration. Id. Modification of an award of alimony must be based on a material change in circumstances of the parties, and the party seeking modification bears the burden of proving such a change.

Id. Changes in circumstances are not material if they were contemplated at the time of the original award of alimony. Id. The primary factors to be considered in making or changing an award of alimony are the need of one spouse and the ability of the other spouse to pay; secondary factors that may be considered include the financial circumstances of both parties, the couple's past standard of living, the amount and nature of the parties’ current and anticipated incomes, the extent and nature of each party's resources and assets, the amount of income of each that is spendable, the health conditions and medical needs of each party, the duration of the marriage, the amount of child support, and the earning ability and capacity of each party. Id. The circuit court is in the best position to view the needs of the parties in connection with an alimony award. Id.

Carl argues that the circuit court should have terminated his alimony obligation to Karen; alternatively, he contends that the $500 a month reduction in his alimony obligation was not sufficient. In support of these arguments, he reasons that he...