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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-775
MICHAEL TRUCKS Opinion Delivered MARCH 18, 2015
APPELLANT
APPEAL FROM THE WHITE
COUNTY CIRCUIT COURT
V. [NO. DR-2013-272]
LAUREEN G. TRUCKS HONORABLE CRAIG HANNAH,
APPELLEE JUDGE
AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Appellant Michael Trucks appeals the June 10, 2014 decree of divorce entered by the
White County Circuit Court in this divorce action, specifically the award of alimony in the
amount of $600 per month for a period of thirty years. He argues that the circuit court
abused its discretion in awarding alimony to appellee Laureen G. Trucks. We affirm.
Appellant and appellee were married for nearly sixteen years, although appellant
admittedly spent significant periods of time away from the marital home due to his battle
with drug and/or alcohol addiction. At some point, after several years of marriage, appellant
moved to Arkansas and eventually filed for divorce. Appellee filed an answer and
counterclaim for divorce against appellant, seeking alimony because of the marital debt she
was currently paying, namely, an alleged promissory note (“note”) the parties executed to
appellee’s mother in the amount of $100,000. The note was the only evidence of this alleged
Cite as 2015 Ark. App. 189
debt, as appellee neither had her mother present to testify as to the alleged mortgage
statement accompanying the note nor entered any bank statements into evidence showing
the payments on the alleged note. Further, the note omitted the amount to be repaid and
a maturity date, and appellant testified that he had neither seen the note nor the alleged
mortgage statement and found that his signature was not the signature affixed to the note.
At the conclusion of the brief trial, the circuit court granted appellee a divorce based
on the fault grounds of habitual drunkenness, drug abuse, and adultery. Despite the
conflicting evidence regarding the parties’ financial circumstances, the circuit court awarded
appellee alimony in the amount of $600 per month for a period of thirty years, citing a
financial need, and noting that appellant, despite his income level, had the ability to pay such
award. The decree was filed on June 10, 2014, and appellant filed a timely notice of appeal
on June 17, 2014.
Appellate courts in Arkansas review divorce cases de novo on the record. Taylor v.
Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). The decision to grant alimony lies within the
sound discretion of the circuit court and will not be reversed on appeal absent an abuse of
discretion. Stuart v. Stuart, 2012 Ark. App. 458, 422 S.W.3d 147; Ark. Code Ann. §
9-12-312(a)(1) (Supp. 2013).
The circuit court is vested with great discretion regarding alimony; it is not set upon
a mathematical formula because the need for flexibility outweighs the need for relative
certainty. Wadley v. Wadley, 2012 Ark. App. 208, 395 S.W.3d 411. Appellate courts will
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defer to the superior position of the circuit court to judge the credibility of witnesses. Taylor,
supra.
Division of marital property and the award of alimony are complementary devices that
the trial court may employ to make the dissolution of a marriage financially equitable. Yancy
v. Yancy, 2014 Ark. App. 256. Generally, the primary consideration in a decision to award
alimony is the relationship between the needs of the payee spouse and the payor spouse’s
ability to pay. Id. An award of alimony lies within the discretion of the trial court and will
not be reversed absent an abuse of discretion. Id.
There are secondary factors that may also be considered. Id. In Jones v. Jones, 2014
Ark. App. 614, 447 S.W.3d 599, this court reiterated the factors set out in Boyles v. Boyles,
268 Ark. 120, 594 S.W.2d 17 (1980), wherein our supreme court echoed twelve other
factors the courts should look to in determining whether alimony should be awarded and the
amount to be awarded. The factors include: (1) the parties’ financial circumstances; (2) the
parties’ past standard of living; (3) the value of jointly owned property; (4) the amount and
nature of the parties’ income, both current and anticipated; (5) the extent and nature of the
resources and assets of each party; (6) the amount of income of each party that is spendable;
(7) the earning ability and capacity to earn of the parties; (8) the property awarded or given
to one of the parties, either by the court or the other party; (9) the disposition of the
homestead; (10) the respective health and medical needs of the parties; (11) duration of the
marriage; and (12) the amount of child support.
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Appellant contends that this award of alimony was punitive in nature, wholly
unsupported by the evidence, and in violation of the most basic concepts related to the award
of alimony. He claims that the circuit court clearly abused its discretion in both the amount
and duration of its award and that these errors include: (1) finding he had the ability to pay
alimony; (2) determining that appellee had a financial need for alimony; (3) factoring his
marital misconduct into an award of alimony; (4) considering the alleged mortgage taken out
by appellee’s mother despite appellee’s failure to present sufficient evidence; (5) failing to
consider appellee’s additional rental income received from her tenant; (6) miscalculating the
length of time for which alimony was awarded related to the payment of the alleged note;
and (7) relying on appellee’s inconsistencies in her pleadings, testimony, and exhibits.
As to the primary factors, appellant’s ability to pay and appellee’s need for alimony,
the circuit court was faced with a wealth of conflicting testimony. It is undisputed that
appellant never submitted an affidavit of financial means, and testimony was not developed
regarding his monthly expenses. He appears to have utilized appellee’s affidavit of financial
means as a baseline for speculating as to his possible monthly expenses. He also disputes her
need for alimony, in particular questioning the note on the marital home that appellee was
awarded. The testimony regarding that note and associated documents is, at best,
contradictory. We reiterate that we give due deference to the circuit court’s superior
position to determine the credibility of witnesses and the weight to be given their testimony.
Walls v. Walls, 2014 Ark. App. 729, ___ S.W.3d ___.
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Appellant argues that the circuit court ignored all of the twelve factors discussed in
Jones, fixing the amount of alimony solely focused on appellant’s ability to pay and appellee’s
financial need. He urges that the circuit court’s analysis is supported by little to no evidence,
or conversely, that the evidence directly contradicts the circuit court’s ultimate conclusions.
The Boyles court did not make it mandatory for circuit courts to consider the enumerated
factors, and other courts have said that these factors are factors that a court “may consider”
in determining whether to award alimony. See Butler v. Butler, 2014 Ark. App. 507, 443
S.W.3d 585; Mitchell v. Bass, 2009 Ark. App. 640; Mearns v. Mearns, 58 Ark. App. 42, 946
S.W.2d 188 (1997). Although the circuit court did not discuss the enumerated factors in its
order, each party argues that the evidence presented at trial tips the scales in his or her favor
with respect to almost every factor. As our supreme court noted recently in Brave v. Brave,
2014 Ark. 175, at 10, 433 S.W.3d 227, 233, “[a]n award of alimony is a question that
addresses itself to the sound discretion of the trial court. This court has held that the trial
court can make an award of alimony that is reasonable under the circumstances.” (Internal
citations omitted.) Although the facts of this case would arguably support the denial of an
award of alimony if that had occurred, it is not our duty under our standard of review to
simply substitute our judgment for that of the circuit court, which was in a far better position
to judge the credibility of the witnesses. See Whitworth v. Whitworth, 2009 Ark. App. 410,
319 S.W.3d 269. It is instead our duty to determine if the circuit court abused its discretion
in making its findings regarding the award of alimony. Here, we hold that the circuit court
has not abused its discretion.
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Appellant also claims that the circuit court’s decision to grant appellee alimony for a
period of thirty years is clearly erroneous and an abuse of discretion. Citing the duration of
the alleged mortgage as the reasoning for granting appellee support for thirty years, appellant
urges that the circuit court wholly overlooked that the mortgage was taken out in 2007,
which puts the remainder of the mortgage balance being paid over twenty-three years.
Appellee notes that in his analysis for awarding alimony for thirty years, the circuit
court did say that period is how long appellee would be indebted. Appellee acknowledges
that the circuit court may have been referring to appellee’s testimony about the thirty-year
mortgage to her mother and also admits that the evidence indicates that it was obtained in
2007, meaning that as of the final hearing there would have been approximately twenty-three
years left to pay on the mortgage. We do not know if the circuit court awarded thirty years’
alimony instead of twenty-three because the evidence showed that appellant did not
contribute much financially before or after the mortgage was obtained and that appellee had
been paying the mortgage by herself for the first seven years. Appellee maintains that if this
were the case, it would not have been an abuse of discretion. Additionally, if appellant had
made this argument before the circuit court, instead of for the first time on appeal, the circuit
court could have clarified his intent and rationale behind the ruling.
The circuit court indicated that if appellant returned to court at a later date and was
able to show that appellee was not paying the debt in question or could prove that she is no
longer responsible for those debts, the term of alimony could be reduced. Modification of
an award of alimony must be based on a change of circumstances of the parties. Bettis v.
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Bettis, 100 Ark. App. 295, 267 S.W.3d 646 (2007). The burden of showing a change of
circumstances is always on the party seeking the change in the amount of alimony. Id. If
appellant subsequently were to petition the circuit court in the event appellee’s mother dies
and her house is sold and the mortgage is satisfied, the circuit court may reduce the term.
Another example would be if appellant could later prove that the debt was paid in full in
twenty-three years instead of thirty years, then the circuit court may reduce the term. The
circuit court has the authority to set the duration of the award of alimony, subject to the
parties’ ability to petition for a subsequent modification based on a material change of
circumstances, and his award here did not constitute an abuse of discretion.
Finally, although appellant contends that the alimony award operates as a punitive
sanction, there is nothing in the record before us to indicate that the alimony award was
meant to be punitive. The record does indicate that appellant admitted his addiction to drugs
and alcohol and his time away in and out of drug rehabilitation for significant periods of
time. Appellant testified that the parties spent a great deal of money during the marriage on
his drug and alcohol addiction and that the parties also spent substantial marital funds on his
legal expenses. There is evidence that appellant’s addictions also played a role in how the
parties allocated their marital and individual assets and debts, including the marital residence
and retirement accounts. While there are acknowledgments by appellant that he had
multiple girlfriends and a fiancée during the marriage, upon whom he spent marital funds,
what is not found in the record is any indication that the circuit court awarded alimony to
appellee because appellant was a “terrible husband.” And although there is no indication that
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the circuit court considered appellant’s bad acts, he could have. While, ordinarily, fault or
marital misconduct is not a factor in an award of alimony, it will be considered when it
meaningfully relates to need or ability to pay. Dykman v. Dykman, 98 Ark. App. 145, 253
S.W.3d 23 (2007). While evidence in the record indicates that the probability that
appellant’s addictions and other detrimental behavior placed the parties in financial hardship
that likely carried on past the date of divorce, there is simply no evidence to support the idea
that the circuit court’s alimony award was meant to be punitive.
Affirmed.
GLOVER and HOOFMAN, JJ., agree.
Simpson, Simpson & Mercer, by: Justin G. Mercer, for appellant.
McKinney & McKinney, PLLC, by: Quincy W. McKinney, for appellee.
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