Stuart v. Stuart

2012 Ark. App. 458

422 S.W.3d 147

Albert Thomas STUART, Appellant

v.Lilly Alline STUART, Appellee.

No. CA 12–149.

Court of Appeals of Arkansas.

Sept. 5, 2012.

James A. McLarty, III, Newport, for appellant.

Samantha B. Leflar, Legal Aid of Arkansas, for appellee.

ROBERT J. GLADWIN, Judge.

Appellant Albert Stuart appeals from a divorce decree filed on August 5, 2011, which awarded permanent alimony to appellee Lilly Stuart and from the February 6, 2012 substitution order that clarified the award of alimony. Appellant argues that the trial court should reverse the award of alimony in the divorce decree and in the subsequent order that modified it. Appellant also contends that the trial court erred in modifying the initial divorce decree beyond the expiration of ninety days from entry. We affirm.

On May 24, 2011, appellant filed his complaint for divorce, and appellee subsequently filed an answer and counterclaim for divorce and spousal support. Testimony at trial showed that, at the time of the hearing, appellee received social-security income of $642 per month and was not working, although she presented no evidence showing that she was incapable of employment. Appellee stated that the reason she was entitled to spousal support was that she had “put up with him” for eighteen years. Appellee also testified that she had located a place to rent in Grubbs, Arkansas, for $325, including utilities. She acknowledged that she was aware of the availability subsidized-governmental housing in Newport, Arkansas, approximately twenty-five miles away, that would cost her “practically nothing.” Appellee explained that she did not consider that option because her preference was to live in Grubbs, where her children live, although she did admit that she also has one grandchild who lives in Newport.

Appellant explained that he was “100–percent disabled,” according to the Veteran's Administration (VA), with a back problem that keeps him from working. Appellant receives $1670 per month in social-security income and $770 each month from a pension. Appellant testified to monthly payments in the sums of $226 for the house, $134 for its central heating/cooling system, $134 for life insurance, and $100 per month for a tool shed.

The trial court ordered an equal division of property, and the original divorce decree entered on August 5, 2011, states in pertinent part:

Based upon the term of the marriage and the disparity in income the Court awards Lilly alimony in the amount of $440.00 per month which shall be paid through the registry of the Court.

Appellant filed a notice of appeal of the decree on August 30, 2011. The second order entered on February 6, 2012, states that the purpose of its entry was to settle the uncertainty and clarify the ruling with respect to paragraph four of the August 5, 2011 Decree of Divorce relative to the payment of alimony. The second order sets general time limits and directs the Social Security Administration to make the withholding from appellant's social security payments. Appellant filed a supplemental and amended notice of appeal from both orders on February 8, 2012.

I. Award of Alimony in Divorce Decree and in Later Modification

A. Standard of Review

The decision to grant alimony lies within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). A trial court abuses its discretion when it exercises its discretion improvidently, or thoughtlessly and without due consideration. Delgado v. Delgado, 2012 Ark. App. 100, at 6, 389 S.W.3d 52, 57.

B. Case Law and Statutory Provisions

In Davis v. Davis, 79 Ark. App. 178, 185–86, 84 S.W.3d 447, 451 (2002), this court noted the pertinent factors in a determination to award alimony:

Alimony and property divisions are complementary devices that a chancellor employs to make the dissolution of a marriage as equitable as possible.... The purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case. The primary factors that a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse's ability to pay. The trial court should also consider the following secondary factors: (1) the financial circumstances of both parties; (2) the amount and nature of the income, both current and anticipated, of both parties; (3) the extent and nature of the resources and assets of each of the parties; and (4) the earning ability and capacity of both parties. [T]his court explained that the amount of alimony should not be reduced to a mathematical formula and that the need for flexibility outweighs the need for relative certainty. However, the court should consider the total income, from whatever source, including social security payments, of both parties in making the determination.

Internal citations omitted.)

Alimony is not available under the common law, but rather is a creature of statute, and a discretionary one at that. See Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). Because an alimony award is statutory, it must be strictly construed. In Arkansas Code Annotated section 9–12–312(a)(1) (Repl.2009), the statute demonstrates that any alimony must be awarded at the time of the divorce:

(a)(1) When a decree is entered, the court shall make orders concerning the alimony of the wife or the husband and the care of the children, if there are any, as are reasonable from the circumstances of the parties and the nature of the case.

....

(b) In addition to any other remedies available, alimony may be awarded under proper circumstances to either party in fixed installments for a specified periodof time subject to the contingencies of the death of either party, the remarriage of the receiving party, or such other contingencies as are set forth in the award, so that the payments qualify as periodic payments within the meaning of the Internal Revenue Code.

Id.

C. Discussion

Appellant makes numerous arguments as to why the trial court's award of alimony should be reversed. Initially, he argues that the award is counter to precedent that specifically states that the purpose of alimony is not to punish the other spouse. Appellant claims that the only reason for alimony stated by appellee was to punish him, as she unequivocally testified:

I draw $642 in Social Security. He draws almost three times that amount by his estimates. I am asking the Court that he pay me some amount of spousal support to help me live. I am entitled for putting up with what I did for 18 years.

Emphasis added.) He argues that this is insufficient justification to award any support. In Barker v. Barker, 66 Ark. App. 187, 992 S.W.2d 136 (1999), this court reversed an alimony award, unequivocally stating that ordinarily, fault or marital misconduct is not a factor in an award of alimony. See McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). Appellant contends that none of the other proper, factors cited in Davis, supra, were stated as reasons for support, and he claims that the trial court relied upon the impermissible criteria of punishment and entitlement, which are insufficient grounds in light of the facts in this case for a lifetime award of alimony.

We disagree. Despite appellee's testimony implying that she should receive alimony to punish appellant, nothing in the record indicates that the trial court awarded alimony to punish him. See Kuchmas v. Kuchmas, 368 Ark. 43, 243 S.W.3d 270 (2006) (upholding alimony award where nothing in the record indicated that the trial court relied on an improper factor in awarding alimony even though there was testimony related to the factor by the supported spouse). The trial court did not mention appellee's statement in its ruling, instead referring to other evidence in the record that was relevant to the proper economic factors. Contrary to appellant's assertion that the evidence did not support any ground for alimony other than punishment or entitlement, the trial court considered both parties' extensive testimony regarding their income, assets, work history, standard of living, and future ability to earn money.

Appellant next argues that the trial court's award failed to take into account that parties are expected to use their best efforts to rectify an economic imbalance. Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988). Whether one party has available other resources—and whether he or she has utilized those resources—are proper considerations for the trial court—as are the efforts of the spouse. In this case, appellant asserts that he is disabled, and he reiterates the VA's conclusion that he is “100–percent disabled.” He notes that appellee, on the other hand, presented no such evidence regarding her employment ability or efforts. In Davis, supra, this court noted that income from whatever source, including governmental benefits, may be considered regarding an alimony request:

[T]he court should consider the total income, from whatever source, including social security payments, of both parties in making the determination.

Davis, 79 Ark. App. at 186, 84 S.W.3d at 451. Also, in Administrative Order No. 10, the Arkansas Supreme Court recognizes that availability of income “from whatever source” may be attributed to the dependent, which appellant suggests indicates that the supreme court expects parties—both the payor and the payee—to utilize all available resources.

Appellant notes that appellee testified that she would not consider moving even a short distance where she might obtain considerable preferences in her housing costs. Her testimony is as follows, as noted in the abstract:

The place which I found for $325 a month is on Elm Street in Grubbs, which is owned by a private individual. I have not checked into a place in Newport where people with low income as I have can obtain. I...