Nelson v. Nelson

Cite as 2016 Ark. App. 416

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-942

MICHAEL E. NELSON
Opinion Delivered: September 21, 2016
APPELLANT
APPEAL FROM THE BRADLEY
V. COUNTY CIRCUIT COURT
[NO. DR-2014-52-2]

JANICE NELSON HONORABLE KENNETH JOHNSON,
APPELLEE JUDGE
AFFIRMED

BART F. VIRDEN, Judge

The parties in this case divorced after thirty years of marriage. Appellant Michael

Nelson argues that the circuit court erred in awarding permanent alimony of $2500 per

month to appellee Janice Nelson. Michael also asserts that the circuit court erred in

unequally distributing the marital property in favor of Janice and in ordering him to pay the

greater share of the marital debt. We find no error, and we affirm.

I. Facts

On April 10, 2014, Janice Nelson filed for divorce on the ground of general

indignities. Janice requested $4500 per month in alimony and for the court to divide the

property and debt. Michael Nelson counterclaimed for divorce, and he requested that

Janice’s complaint be dismissed. Michael also requested that the circuit court equally divide

the property and the debt. Janice filed an amended complaint for divorce on December 10,
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2014, alleging adultery and again requested alimony and for the circuit court to divide the

property. Michael waived corroboration of grounds.

On April 14, 2015, Michael filed an answer and counterclaim asserting general

indignities as grounds for the divorce. He asserted that Janice was a beautician and could

derive substantial income from pursuing that career. Michael stated in his complaint that he

was unemployed and “lacked ready cash” to pay alimony. He also argued “unclean hands”

and that Janice admitted to having had an affair while they were married. Michael also

claimed that if the affair had not actually occurred, then Janice committed “intentional fraud

in the infliction of mental or emotional distress” by lying about the affair. Michael also

asserted that Janice had not stated why she was entitled to alimony.

In her response, Janice denied having had an affair. In an amended complaint, filed

on April 20, 2015, Janice stated that she should be awarded alimony because during their

thirty-year marriage, Michael had been the primary source of income, with a salary over

$200,000 for the past five years. By contrast, her income was around $20,000. She alleged

that he had the ability to pay and significantly more education and ability to earn than she

did.

On May 15, 2015, the circuit court held a hearing on the matter. Janice testified that

she was the caregiver to her six-year-old granddaughter and that she did not receive child

support from the child’s parents. She testified that she was a licensed beautician, and she

had worked off and on during their marriage; however, most recently and at the time of

the hearing, she was the secretary for the City of Warren. Janice testified that she made

around $18,000, and she was receiving food stamps. She testified that her monthly expenses

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were around $3500, not including credit card debt, and that her monthly income was

around $1500. Michael had been sending her money to pay bills since they separated, but

he had ceased sending money in the spring of 2015.

Janice testified that in 2014 Michael spent $13,000 on his girlfriend in one nine-day

period; $6000 on jewelry another time; and $3200 during a trip the two took together. She

stated that Michael had also bought his girlfriend’s son a car. Janice also testified about the

equity in their three homes and about the debt remaining on each of the homes. Janice

testified that she had not had an affair but told Michael that she had in order to upset him.

At the hearing Michael testified that due to the nature of his work as a computer

consultant, he had lived mostly in hotels over the years which were paid for as part of his

work contract. He had become tired of living in hotels and had recently opted to live in a

lake house and that his portion of the rent had been $450 a month. At the time of the

hearing he was living with friends. Michael estimated that he owed $200,000 on delinquent

income taxes from 2013 and 2014. Michael testified that he would have his current salary

for four months after the hearing and that he had been offered a job in Orlando for $120,000

a year including moving expenses. Michael stated that his prospects for work were good,

just not as good as they had been due to outsourcing his type of work to other countries.

Tax returns confirmed that Michael’s income had been over $250,000 in 2009 and 2011.

Michael admitted to the affair with Tina Martin and that he had spent around

$45,000 on her and her family in 2013−2014.

On August 21, 2015, the circuit court entered its order. The circuit court granted

the divorce to Janice on the ground of adultery. It awarded the marital residence in Warren

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to Janice with the instruction that she would assume the mortgage of $37,000. The circuit

court found that the equity in the marital home was $73,000. Michael’s mother’s residence

was awarded to Michael, and the circuit court found that the debt remaining on that house

was $16,000 and that it had equity of $59,000. The circuit court awarded Janice’s parents’

home to Janice with the debt remaining on that house at $13,000 and the equity amounting

to $17,000. The court recognized that the division of the property was unequal and noted

that in apportioning the property it considered the amount of money from the marital assets

that had been spent on Michael’s girlfriend and her family. The circuit court also took into

account the fact that Michael had taken the contents of a marital bank account. Both parties

were awarded their cars and personal belongings. Michael received his boat and boat trailer

and his motorcycle and its trailer. Michael was awarded the balance of the Bank of America

account and half of the AFCU account as well.

The circuit court found that on average over the past five years, Michael had earned

around $250,000 per year, and Janice had earned around $18,000 per year. The circuit court

noted that Janice was currently the secretary for the City of Warren and was receiving food

stamps to supplement her income. During the marriage Janice had primarily been a

housewife, and Michael had been, and was currently, a computer technology consultant.

The circuit court found that though Michael had been unemployed for a time, he had been

rehired at the same salary as before, and was employed at the time of trial. The circuit court

found that Michael had good earning potential.

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The circuit court noted that Janice had filed her own taxes for 2014 and that Michael

had failed to file taxes for 2013 and 2014. The circuit court found that Janice had no way

of addressing the tax liability; thus, Michael would be solely responsible for his unpaid taxes.

Janice was awarded $2500 a month in lifetime alimony. In awarding alimony, the

court considered the need of one spouse and the ability to pay of the other spouse:

[I]n light of the specific facts of this case and also the secondary factors of the financial
needs and obligations of both parties’ past standard of living; the income, current and
anticipated, of the parties; the earning capacity of the parties; the disposition made of
the marital jointly owned residence; the amounts if which will be available after the
entry of the Decree to each of the parties for the payment of living expenses and the
length of the marriage.

The court iterated the “gross disparity in earning capacity and actual historical

income production of the parties” as the basis for its award of alimony. Janice was also

awarded $1500 in attorney’s fees.

On August 28, 2015, Michael filed his notice of appeal. On September 4, 2015, the

divorce decree was entered. Michael filed an amended notice of appeal on September 18,

2015. On appeal Michael asserts that the circuit court erred in awarding permanent alimony,

that it erred when it determined the amount of the alimony, and that the circuit court erred

when it unequally distributed the property and the debt. We find no error and affirm.

II. Arkansas Supreme Court Rule 4-2(a)(6)

Before we reach our discussion of the merits of this case, we must address an issue

arising from Michael’s statement of the case. Arkansas Supreme Court Rule 4–2(a)(6)

requires a concise statement of the case without argument. The statement of the case should

be sufficient to enable the court to understand the nature of the case, the general fact

situation, and the action taken below. Boykin v. Crockett Adjustment Ins., 2012 Ark. App.

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685, at 1. Here, Michael’s statement of the case impermissibly contains argument. Michael

makes an argument concerning the unequal distribution of property, the award of alimony,

and he makes an accusation against the circuit court that it issued a “classic one-sided judicial

opinion where one party gets the proverbial gold mine, and the other receives the entrance

to the mine.” We caution counsel to refrain from such statements in the future because they

are prohibited by our rules and inappropriate.

III. Points on Appeal

A. The Duration and the Amount of Alimony

Appeals of domestic-relations proceedings are reviewed de novo. Wadley v. Wadley,

2012 Ark. App. 208, at 2, 395 S.W.3d 411, 413. 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. Taylor v. Taylor, 369 Ark. 31, 34, 250 S.W.3d 232, 235 (2007). It should also

be noted that the division of marital property and an award of alimony are complementary

devices that a circuit court may employ to make the dissolution of the marriage financially

equitable. Webb v. Webb, 2014 Ark. App. 697, at 3—4 , 450 S.W.3d 265, 268—69. There

can be no abuse of discretion, and a circuit court’s decision regarding these issues cannot be

overturned unless it can be demonstrated that it exercised its discretion improvidently or

thoughtlessly without due consideration. Smithson v. Smithson, 2014 Ark. App. 340, 436

S.W.3d 491.

An award of alimony is not mandatory but rather is discretionary, and the circuit

court’s decision regarding any such award will not be reversed on appeal absent an abuse of

that discretion. Smithson, supra. This court has recognized that a circuit court is in the best

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position to view the needs of the parties in connection with an alimony award. Id. The

purpose of alimony is to rectify the economic imbalance in the earning power and standard

of living of the divorcing parties, in light of the particular facts of each case. Id. The primary

factors are the financial need of one spouse and the other spouse’s ability to pay, but other

factors are the circumstances of the 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. The need for flexibility outweighs

the need for relative certainty in assessing alimony. Id. If alimony is awarded at all, it should

be an amount that is reasonable under all the circumstances. Id.

First, Michael argues that alimony is always modifiable, and that an award of

“permanent” alimony potentially runs afoul of amendment 80 to the Arkansas Constitution.

He is correct in part. Alimony is always subject to modification. In Vigneault v. Vigneault,

2010 Ark. App. 716, at 8, 379 S.W.3d 566, 571, a post-Amendment 80 case, our court held

that the circuit court’s award of permanent alimony was not in error and that the issue of

alimony could be revisited:

The parties in this case are in their mid-fifties and are divorcing after a long-term
marriage. Appellant has a high-paying job, and during the marriage, the parties
enjoyed a comfortable lifestyle. On the other hand, appellee’s best earning potential
is limited to an eleven-dollar-per-hour job. Given the parties’ ages, their respective
earning capacities, the length of the marriage, and their married lifestyle, we can find
no abuse of discretion in the trial court’s decision not to limit the duration of the alimony
award. As observed by the circuit court, appellant can seek modification of the award
should there be a change in circumstances.

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(Emphasis added.)

Michael’s argument that the circuit court’s award of permanent alimony should be

reversed “as a matter of law” is not well taken. While Michael is correct that there is no

such animal as “permanent” alimony, the nomenclature employed by the circuit court does

not constitute error. As set forth in the case above, “permanent”-or as in the present case

“lifetime”-alimony is just another way of saying that the circuit court has chosen not to

limit the amount of time a spouse should receive alimony. We find no error, and we affirm.

Michael also contests the amount of the alimony award. Our court has never

reviewed an award of alimony solely on a mathematical-formula analysis. Kuchmas v.

Kuchmas, 368 Ark. 43, 46, 243 S.W.3d 270, 272 (2006) (holding that the amount of alimony

should not be reduced to a mathematical formula because the need for flexibility outweighs

the need for relative certainty). Here, because the circuit court considered the income and

earning capacity of both parties, the assets of both parties, their needs and obligations, their

past standard of living, and the length of the marriage, we hold that the amount of alimony

awarded by the circuit court was not an abuse of discretion, and we affirm.

B. Unequal Distribution of Property and Debt

Michael contends on appeal that the circuit court erred when it unequally distributed

the marital property. This court reviews division-of-marital-property cases de novo; even

though we do so, we will not reverse the circuit court’s findings of fact unless they are

clearly erroneous, or against the preponderance of the evidence. Kelly v. Kelly, 2014 Ark.

543, at 5–6, 453 S.W.3d 655, 660. The division of property itself is also reviewed, and the

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same standard applies. Id. A finding is clearly erroneous when the reviewing court, on the

entire evidence, is left with the definite and firm conviction that a mistake has been made.

Id. In order to demonstrate that the circuit court’s ruling was erroneous, the appellant must

show that the circuit court abused its discretion by making a decision that was arbitrary or

groundless. Id.

A circuit court is required to divide the marital estate in a manner that is equitable,

but we do not require mathematical precision in doing so. Coatney v. Coatney, 2010 Ark.

App. 262, 377 S.W.3d 381. Arkansas Code Annotated section 9–12–315 (Repl. 2015)

requires that the circuit court equally divide marital property between the parties unless the

circuit court finds such a distribution inequitable. If the circuit court finds that an unequal

division of the property is appropriate, the court shall make some other division that the

court deems equitable taking into consideration (i) the length of the marriage; (ii) age,

health, and station in life of the parties; (iii) occupation of the parties; (iv) amount and

sources of income; (v) vocational skills; (vi) employability; (vii) estate, liabilities, and needs

of each party and opportunity of each for further acquisition of capital assets and income;

(viii) contribution of each party in acquisition, preservation, or appreciation of marital

property, including services as a homemaker; and (ix) the federal income tax consequences

of the court’s division of property. Id.

When property is divided pursuant to the foregoing considerations, the circuit court

must state its basis and reasons for not dividing the marital property equally between the

parties, and the basis and reasons should be recited in the circuit court’s order. See Ark.

Code Ann. § 9–12–315(a)(1)(B).

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Here, the circuit court stated that it recognized that it was unequally distributing the

property and that “the court has also considered the amount of money from marital assets

defendant has spent on his girlfriend, Tina Martin, as well as his recovery of the balance in

the Bank of America account as of December 31, 2014.” Michael testified that he spent

about $45,000 of marital funds on his girlfriend, and the circuit court found that bank

account had contained about $16,000 when Michael obtained the balance; those two figures

totaled about $61,000. Janice received $90,000 in real-estate equity and Michael received

$59,000-a difference of $31,000 in assets. Michael asserts that the circuit court’s findings

concerning the inequitable division of property were inadequate, arguing that “the only

explanation offered by the trial court was its statement that it had considered the money

spent on his girlfriend, Tina Martin, as well as the balance in the Bank of America account

. . . .” Indeed, the circuit court found that Michael actually ended up ahead by about $30,000

in light of the $45,000 in marital funds spent on Martin and her family and in light of the

$16,000 left in the bank account when Michael took possession of it. Furthermore, the

circuit court discussed in its order the great disparity in the parties’ incomes, Janice’s reliance

on food stamps, Michael’s level of education as compared to Janice’s, and Michael’s and

Janice’s respective roles during the marriage as breadwinner and housewife.

In light of the above findings, we cannot say that the circuit court’s explanation is

inadequate or insufficient. While the circuit court must consider the factors set forth in the

statute and state its reasons for dividing properly unequally, it is not required to list each

factor in its order or to weigh all the factors equally. See Kelly, supra; Bamburg v. Bamburg,

2011 Ark. App. 546, 386 S.W.3d 31; Hernandez v. Hernandez, 371 Ark. 323, 265 S.W.3d

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746 (2007). Furthermore, the specific enumeration of the factors within the statute does not

preclude a circuit court from considering other relevant factors, where exclusion of other

factors would lead to absurd results or deny the intent of the legislature to allow for the

equitable division of property. Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008). The

statute requires the circuit court to explain its reasons for not dividing the marital property

equally, and the circuit court did just that. We affirm the circuit court’s unequal division of

the marital property.

Michael also challenges the circuit court’s unequal division of the marital debt. A

circuit court’s decision to allocate debt to a particular party or in a particular manner is a

question of fact, and we will not reverse the finding on appeal unless it is clearly erroneous.

Fields v. Fields, 2015 Ark. App. 143, at 3, 457 S.W.3d 301, 304. While Arkansas law requires

the circuit court to distribute half of the parties’ marital property to each party unless the

court finds such a division to be inequitable, there is no presumption that an equal division

of debts must occur. Id. The circuit court has authority to consider the allocation of debt in

the context of the distribution of all of the parties’ property. Id. The overriding purpose of

the property-division statute is to enable the court to make a division that is fair and

equitable under the circumstances. Boxley v. Boxley, 77 Ark. App. 136, 142, 73 S.W.3d 19,

23 (2002). The court’s findings as to the circumstances warranting the property division will

not be reversed unless they are clearly erroneous. Id. We will not substitute our judgment

on appeal as to what exact interest each party should have; we will decide only whether the

order is clearly wrong. Id.

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Here, the circuit court found that Janice, who earned around $18,000 per year and

had to rely on food stamps, had no ability to pay the delinquent income taxes from Michael’s

salary, which the court found averaged around $250,000 during that time. In allotting the

debt, the circuit court also considered Janice’s primary role as a caretaker of the household

and the children during their marriage and Michael’s role as the breadwinner. The circuit

court found that Michael had “demonstrated a resourceful ability to earn substantial amounts

of money[.]” In light of the circuit court’s consideration of the facts of this case, we cannot

say that its division of marital debt was clearly erroneous, and we affirm.

Affirmed.

ABRAMSON and GRUBER, JJ., agree.

Parker Law Firm, by: Tim S. Parker, for appellant.

Wynne Law Firm, by: Tom Wynne, for appellee.

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