Smith v. Smith

Cite as 2016 Ark. App. 571

ARKANSAS COURT OF APPEALS
DIVISION III
CV-16-170
No.

Opinion Delivered NOVEMBER 30, 2016
DON A. SMITH
APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT,
GREENWOOD DISTRICT
V. [NO. 66DR-15-138]

GRETCHEN MARIE SMITH HONORABLE ANNIE HENDRICKS,
JUDGE
APPELLEE
AFFIRMED

DAVID M. GLOVER, Judge

Appellant Don Smith appeals the Sebastian County Circuit Court’s denial of his request

for alimony from appellee Gretchen Smith. We affirm.

Standard of Review

The purpose of alimony is to rectify the economic imbalances in earning power and

standard of living in light of the particular facts of each case. Kuchmas v. Kuchmas, 368 Ark. 43,

243 S.W.3d 270 (2006). The primary factors a court should consider in awarding alimony are

the financial need of one spouse and the other spouse’s ability to pay. Gilliam v. Gilliam, 2010

Ark. App. 137, 374 S.W.3d 108. The circuit court may also consider other factors, including

the couple’s past standard of living, the earning capacity of each spouse, the resources and assets

of each party, and the duration of the marriage. Johnson v. Cotton-Johnson, 88 Ark. App. 67, 194

S.W.3d 806 (2004). We adhere to no mathematical formula or bright-line rule in awarding

alimony. Valetutti v. Valetutti, 95 Ark. App. 83, 234 S.W.3d 338 (2006). The circuit court may
 Cite as 2016 Ark. App. 571

make an award of alimony that is reasonable under the circumstances. Kuchmas, supra. The

decision whether to award alimony lies within the sound discretion of the circuit court, and

we will not reverse absent an abuse of that discretion. Cole v. Cole, 89 Ark. App. 134, 201

S.W.3d 21 (2005). An abuse of discretion means discretion improvidently exercised, i.e.,

exercised thoughtlessly and without due consideration. Foster v. Foster, 2015 Ark. App. 530,

472 S.W.3d 151.

Facts

Don and Gretchen married in November 1976 and separated in April 2015. At the

divorce hearing in November 2015, Gretchen, who was fifty-eight at the time, testified her

take-home pay every two weeks was $1206, and if she added her retirement contributions

back in, she would take home $1400 every two weeks. She explained that while she was

currently living with her mother, she hoped to move out soon and anticipated a total of $2669

in monthly expenses after she moved into her own home. According to Gretchen, although

Don was receiving Social Security disability benefits, he still fished in tournaments on a regular

basis and performed yard work at the marital home. Gretchen did not dispute Don was

disabled—she explained that earlier in their marriage, Don had been declared disabled, but he

had returned to work against doctor’s advice and worked until he could work no longer; he

had been declared disabled for a second time in 2010. Nevertheless, Gretchen believed Don

was able to work on a part-time basis, pointing out he had received money from doing odd

jobs such as consulting for remodeling or doing yard work for other people. Gretchen

admitted she was currently still paying Don’s gas, electricity, water, and phone bills, but she

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countered that when she moved out of her mother’s house, she would have those expenses

to pay for herself and could not afford also to pay Don alimony.

Jason Smith, the couple’s adult son, testified he had been on fishing trips with his father

after Don had been determined to be disabled, and they had fished for a full day, with Don

loading the fishing equipment, taking the boat off the trailer, and guiding the boat while they

fished. Jason stated he had also seen his father mow and weed eat the yard and had never

witnessed being limited in his ability to do things. He also admitted he and his father do not

get along.

Don testified he has been disabled since 2010 and had actually drawn Social Security

disability benefits in 1981 or 1982 after having back and shoulder problems, but had returned

to work against his doctor’s advice. Don recounted his many health problems, including four

additional ruptured discs, spondylolisthesis of the spine, depression, anxiety, high blood

pressure, vascular dementia, shoulder and knee problems, Type II diabetes, and a hernia in his

stomach. He stated he had undergone two surgeries that year and was scheduled for a third

surgery.

Don explained his monthly net income from Social Security disability benefits was

$1115, and while the house he was currently living in was free of debt, his monthly expenses

still totaled $1820. Don acknowledged that while he had been on Gretchen’s health insurance

during their marriage, he would no longer be able to remain on her insurance after the

divorce. Don also confirmed he had Medicare Parts A and B, and $104 per month was

withheld from his disability check for this insurance, but he testified he would have to pick

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up coverage under Medicare Parts C and D for his hospital and medical expenses, which he

estimated would cost an additional $150–250 per month. Don testified his medication was not

covered under Medicare, and the best plan he had been able to find cost $9839 per year for

his medication. Don explained he joined his fishing clubs as a way to deal with depression and

anxiety, but he had been having trouble with his back and, at times, he was unable to fish and

merely had to sit and watch. He also testified he had a lot of pain when he mowed the yard.

Don expressed an interest in retaining the marital home and offsetting Gretchen’s interest in

the house by foregoing his interest in her retirement or 401(k).

Don’s friend, Michael Hamby, a local Social Security disability attorney, testified Don’s

physical condition had deteriorated significantly since he met him, and there had also been

lapses in Don’s mental acuity and in his ability to get along with others since he had suffered

a stroke. Hamby expressed an opinion that it was unusual for a person to be approved for

Social Security disability benefits as quickly as Don had been approved. He explained

Medicare was provided with Social Security disability benefits, and Don would be permitted

to work to some extent while receiving Social Security disability benefits; however, he did not

believe Don could engage in activities considered to be duties in a workplace.

The decree of divorce was filed on December 9, 2015. The circuit court, after

considering “the health and financial abilities of the parties and having considered all of the

evidence adduced,” awarded the marital home, valued at $180,000, to Don as his sole and

separate property, as well as his 2015 Chevrolet truck, the lawn mower and tools, and all other

items in his possession other than those specifically awarded to Gretchen; and awarded

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Gretchen her ArkBest401(k), valued at $196,862.50, her 2008 Toyota Highlander, and all

other items remaining in her possession except for items specifically awarded to Don. The

parties’ bass boat was ordered sold and the proceeds divided equally. Gretchen’s pension,

valued at $118,239.42, was ordered to be divided equally. The parties had earlier divided

equally a savings account valued at $19,000. The circuit court then found, after considering

the parties’ financial conditions, health, and income, that Don’s request for alimony should be

denied.

Denial of Alimony

Don argues the trial court erred in denying his request for alimony. As enumerated

above, the primary factors to consider in awarding alimony are the financial need of one

spouse and the other spouse’s ability to pay. Gilliam, supra. Don sets forth his expenses are

$700 per month in excess of his income which does not include the fact he will be required

to secure additional medical insurance after the divorce. He contends he has the need for

alimony, and Gretchen has the ability to pay. In support of this contention, he cites Mearns

v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997), a case in which our court reversed the

denial of alimony to the husband and ordered the trial court to set an appropriate amount of

alimony. Don contends the facts of Mearns are “very similar” to the present case. We do not

agree.

In Mearns, the parties had been married for twenty years; for the first fifteen years, the

husband was the primary breadwinner, and the wife stayed at home to raise their two children;

when the children reached school age, the wife began to work part time. The husband lost

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his job when the plant where he worked closed and, instead of relocating, he chose to remain

in Arkansas; he invested all of his retirement, savings, and stock in an auto-parts business and

also purchased a chicken farm. The wife began working full time for the United States Postal

Service, and the couple decided to sell the auto-parts business and apply the proceeds to the

debt on the chicken farm. Chicken farming proved to be an unreliable source of income, and

the wife became the primary breadwinner. The husband also began experiencing some health

problems at this time.

In reversing the denial of alimony, our court found: the husband was unemployed,

because the chicken farm had been ordered to be sold, while the wife had a secure job paying

more than $40,000 per year; the wife was the beneficiary of a trust fund from her parents;

while the couple’s assets were not exceptional, the proceeds from one of the most valuable

assets, a 1961 Corvette, had been divided $8000/$2000 in favor of the wife; the husband was

fifty-seven, had health problems, was unemployed, and did not have a college degree or

professional license; conversely, the wife was forty-three, had a secure income, and retained

her specially adapted mail-delivery vehicle, while the husband’s source of income, the chicken

farm, had been ordered sold. The Mearns court also considered the length of the marriage,

which is the only substantially similar fact to the present case.

While Don is unable to work, he is receiving Social Security disability benefits; and

though he has multiple health problems, fifty-eight-year-old Gretchen also takes medication

for mitro-valve prolapse, has borderline glaucoma, and takes an antidepressant. The parties’

assets were divided relatively equally. Gretchen is making more money than Don, but she is

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also currently living with her mother. Don was awarded the marital home, which had no debt

associated with it. Gretchen testified she hoped to move out of her mother’s house soon and

would incur additional expenses, such as rent and utilities, with that move. Gretchen’s

monthly expenses, by her testimony, total $2669. There was testimony regarding Don’s ability

to perform some types of work for remuneration and, while Don disputed this testimony, the

circuit court was not obliged to believe his version of events.

We cannot find that the circuit court abused its discretion in denying Don’s request for

alimony. While Don has a need for alimony, the evidence bears out the fact Gretchen does

not have the ability to pay alimony if she completes her intended move out of her mother’s

house. Furthermore, there was evidence Don has the ability to earn additional money over

and above his Social Security disability income. We affirm the denial of Don’s request for

alimony.

Affirmed.

VIRDEN and WHITEAKER, JJ., agree.

Michael Hamby, P.A., by: Michael Hamby, for appellant.

Gean, Gean & Gean, Attorneys at Law, by: Roy Gean III, for appellee.

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