Cite as 2023 Ark. App. 279
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-22-148
DERRICK RICHARDSON Opinion Delivered May 10, 2023
APPELLANT
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
V. FORT SMITH DISTRICT
[NO. 66FDR-12-21 ]
JANET CALDARERA RICHARDSON
APPELLEE HONORABLE SHANNON L. BLATT,
JUDGE
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant Derrick Richardson appeals the Sebastian County Circuit Court’s order
denying his motion to modify alimony. He contends that the circuit court abused its
discretion by refusing to reduce his alimony obligation to appellee Janet Richardson. We
affirm.
The parties were divorced by a decree entered on April 17, 2013, after twenty years
of marriage. Appellant was ordered to pay appellee permanent alimony in the amount of
$8,000 a month as well as child support in the amount of $10,683 a month for the parties’
two children who were in appellee’s custody.1 The order specifically stated that the amount
1
The child-support amount was agreed upon by the parties and was a part of a
property settlement agreement. The parties have three children, but as per the agreement,
the son lived with appellant. The amount of alimony was contested and had to be
determined by the circuit court.
of alimony was “modifiable and will be subject to review considering the circumstances of
the children aging out for purposes of child support.” The decree indicated that although
appellee has a master’s degree in social work, she had been a stay-at-home mother for thirteen
years. The circuit court found that appellee had the ability to work as a social worker and to
make $35,000 yearly. The order also stated that appellant is a gastroenterologist with Cooper
Clinic in Fort Smith, Arkansas, bringing home a yearly net income of approximately
$600,000.
Appellant filed a motion to reduce child support and alimony on February 14, 2014.
He contended that his annual net income had substantially decreased from $614,266.00 to
$490,350.42 in 2013, which justified a reduction in both his alimony and child-support
obligations. Appellant included a copy of his 2013 W-2 to support his contention that his
income had substantially decreased since the divorce. Appellee filed a response on February
19, asking the circuit court to deny appellant’s motion. The circuit court entered an order
on July 17 granting appellant’s motion following a hearing on May 8. As a result, appellant
was ordered to pay $7,000 a month in alimony and $10,124 a month in child support. The
order was amended in August; however, there was no change to the new alimony and child-
support amounts.
Appellant filed a second motion to reduce alimony on July 22, 2020. He alleged that
there had been a substantial decrease in his income since the 2014 orders. He also
contended that the children had reached the age of majority. Appellee filed a response and
counterclaim for an increase in alimony on October 23. She denied that appellant’s alimony
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obligation should be reduced, and she also sought to have appellant held in contempt. In
her counterclaim, appellee stated that appellant’s alimony to her should increase since she
was no longer receiving over $120,000 yearly for child support. She also contended that
appellant has failed to help with the children’s college expenses even though he testified he
would do so in the divorce proceeding, and that testimony was a factor the circuit court
considered when making the initial alimony award. She also indicated that it was her belief
that appellant’s income had increased since the last modification. Appellee further
maintained that she had a substantial need for an increase in alimony, including expenses
for the children totaling over $340,0002 and loans in the amount of $145,000 to cover the
children’s college tuition for which appellant has not contributed. She stated that her
alimony should be increased due to appellant’s misrepresentations to the circuit court about
covering certain expenses regarding the children, which he has failed to do.3 Appellant filed
a response to appellee’s counterclaim on November 2 denying the material allegations of
appellee’s counterclaim.
A hearing took place on September 30, 2021. Appellant testified that he was fifty-
eight and in good health. He stated that he is a gastroenterologist with the Mercy Fort Smith
2
This amount included college tuition, books, housing, utilities, sorority expenses, a
car purchase, car insurance and repairs, and living expenses for the children.
3
In the circuit court’s letter opinion, which was incorporated by reference into the
divorce decree, the circuit court stated that a factor it considered in determining the amount
of alimony “is the fact that [appellant] will provide automobiles, insurance and college
expenses for all three children and that this obligation will be continuing for some time as
the youngest child is but 13 years of age.”
3
Communities. He said that COVID-19 led to a 20–40 percent reduction in pay and that,
although he tried to follow the directives of the circuit court, “[t]o look at your checking
account and be down to $1000 is an experience no one would like to have.” He said that
his average net income for 2017, 2018, and 2019 was $476,712, resulting in a reduction in
income since the decree of over $175,000. Appellant introduced his pay stubs for 2021,
which showed that his year-to-date gross income was $337,065 and that he had paid a total
of $133,583.25 in taxes, resulting in a net income of $203,481 thus far. He conceded that,
at this rate, his net income for 2021 was projected to be $488,356.44, resulting in a monthly
income of about $40,000. He testified that he intends to practice medicine for about ten
more years. He stated that their oldest daughter is married and teaching in California; their
son is unemployed and living with appellee; and their youngest daughter is a senior in
college. He said that he purchased vehicles for all the children as he said he would during
the divorce hearing and introduced evidence of the purchases. Appellant testified that two
of their adult children are covered by his health insurance. He said that he had very little
input on where his children went to college but admitted that the youngest one did ask his
opinion. He said that appellee is now employed and makes close to $80,000 yearly.
Appellant testified that he wanted the circuit court to “end [his] alimony at this point because
it seems that [appellee is] more than capable of taking care of herself and meeting the goal
and the standard that was set forth by the Court.” He also indicated that he was looking at
retirement and did not want to work so “feverishly.”
4
On cross-examination, appellant testified that he recently purchased an adventure
van, or camper-type motor home, for $140,000. He stated that he is married but that his
wife is currently unemployed. His gross income for each check he received in 2021 was
$33,609.76, resulting in a monthly income of approximately $67,000. He said that he gives
$4,900 a month to the Razorback Foundation; he contributes $4,000 a month to his pension
plan; and he makes monthly donations to his church. He admitted that although he filed a
motion to reduce his alimony in 2020 based upon a significant decrease in his income, he
did not provide his pay stubs, W-2, or tax filings for 2020 because he had not yet filed his
2020 tax return. Appellant agreed that his gross income for 2018 was $734,000; for 2019 it
was $757,000; for 2020 it was unknown; and for 2021 it was projected to be at least
$806,634.24. Appellant testified that “[he is] not going to continue to work as hard as [he
is] and feel like [he has] to be pressured to work hard to make as much money as [he has
done].” He denied filing the motion in anticipation of retirement but said he filed it based
“on how hard [he works] and what percentage that [he is] giving up.” He stated that his
income is much less than what it was at the time of the divorce. Appellant admitted that he
testified that he would pay for the children’s college tuition during the divorce but had not
done so because he was not involved in the decision-making process. He stated that he was
unsure if appellee asked him to pay for the children’s college or if any of the children asked
him to help them pay for college. He said that he has given the children cash and things like
computers and laptops but has not contributed anything toward their college tuition or room
and board. Appellant testified that he made thousands of dollars in donations in 2020 for
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contract work on a baseball field in Fort Smith to help underprivileged youths. He stated
that the balance for one of his checking accounts in August 2020 was a little over $77,000.
He also admitted that he received approximately $94,000 in tax refunds in 2020 but
indicated that he had to repay some of it back due to an overpayment. 4 Appellant said that
he received $140,000 from his mother’s estate earlier this year. He denied knowing that
appellee had taken out loans to fund their children’s college or why she had done so. He
denied not paying the college tuition so that appellee would have to use her alimony
payments to cover it.
On redirect, appellant stated that in 2017, he paid nearly $300,000 in taxes, and in
2018, he paid over $200,000 in taxes. He said that at the time of the divorce, his gross
income was about $1 million. As far as the children’s college tuition, appellant
acknowledged that the circuit court wrote a letter before the divorce decree was entered
stating that, although appellant testified that he would “provide certain items for his
children, this should not be interpreted as [an] additional enforceable obligation. It is
something he said he would do voluntarily.” The circuit court also agreed in the letter that
the statement concerning appellant’s testimony should not be included in the decree.
Appellant stated that when he agreed to pay the children’s college tuition, he was unaware
of the amount he would have to pay appellee in alimony. He said that helping
underprivileged children is a priority for him because he was once where they are. He
4
Appellant was unable to present proof of the repayment.
6
reiterated that he played no role in the children’s college decisions. He indicated that
$75,000 of the money he received from his mother’s estate was donated to the University of
Arkansas and that he also plans to donate the remainder of the money perhaps to Hunt’s
Park.
Appellee testified that she did not expect to have to pay for their children’s college
expenses because appellant had testified that he would do so. She said that she is currently
employed by the LeFlore County Child Advocacy Center and has an annual gross income
of $73,000. She stated that she has been made aware that the grant funding her program
has been reduced and that her annual income will subsequently be reduced to $70,000. She
said that she has a retirement account and that if she waits until she is sixty-seven to retire,
she will receive $3,000 a month in retirement. She stated that she will also receive an
additional $1,040 from Social Security. She said that she paid out of pocket for the
children’s tuition when she could, but she also had to take out loans to fund their college
expenses. She testified that beginning in January 2022, she will have to pay $1079.30 a
month toward the loans. She said that her budget is “stretched pretty thin” and that she will
probably have to sell her house and downsize in order to repay the loan if her alimony is not
increased. She stated that she pays taxes on her alimony. She testified that her net monthly
alimony is $5329.83, resulting in her having a net monthly income of $9805. She stated
that she has approximately $14,000 in monthly expenses, which includes substantial
expenses for the children. She said that her net monthly income is not enough to cover her
expenses and that she has to borrow money from other sources—for example, the money she
7
received from the sale of the marital home—to help cover those expenses. She stated that
she has sent appellant emails asking for help paying the children’s tuition, but he does not
respond. She said that appellant has always been included in the children’s college decisions.
She testified that she has funded pretty much all the children’s living expenses for college.
However, she said that appellant did give $1,900 toward their son’s college expenses. She
stated that she has spent about $382,000 toward the children’s college expenses. She said
that she received $280,000 when the marital home was sold and that she has depleted all the
funds from that sale. She testified that she has suffered from Bell’s palsy, which is facial
paralysis, since she had their youngest daughter, and she receives injections for this
condition. She said that both of her knees are bad and need to be replaced, but until then,
she receives cortisone injections. She also stated that her gall bladder must be removed at
some point. She stated that her future surgeries will require her to be off work without pay.
She said that when her alimony was reduced to $7,000, she was also receiving over $10,000
in child support. She asked the circuit court to either let her alimony remain the same or
increase it by the amount she will have to repay on the loan she took out for a total amount
of $8,079. She stated that she has paid the children’s expenses because that is her obligation
as a parent, and it is something she and appellant agreed they would do. She testified that
all the children are dyslexic. She said that their son graduated in 2020, but it has been hard
for him to find employment. She acknowledged that she gives him $200 a month and stated
that she assumes that appellant also gives him money “every now and then.”
8
On cross-examination, appellee stated that she understands that she is not legally
obligated to pay college expenses for adult children. She said that she did include appellant
in the children’s college decisions and he never objected to the colleges they chose. She
agreed that a lot of her expenses are related to the children. She admitted that her retirement
fund was currently over $900,000. She said that she intends to use the retirement funds for
herself and not access it for the children’s benefit. She stated that she is almost fifty-nine
and would like to be able to slow down by age sixty-seven. She admitted that her employment
situation is better now than it was at the time of the divorce.
On redirect, appellee stated that over $10,000 of her monthly expenses are due to
maintaining her home, bills, and insurance. She stated that she was employed in 2014 when
they came to court and that her current income is only about $5,000 more a year than it was
in 2014. She said that if her alimony is not increased, or if it is reduced, she will have to dip
into her retirement. On recross, appellee testified that she would like to protect her
retirement fund.
At the conclusion of the hearing, the circuit court directed the parties to submit
posttrial briefs, findings of fact and conclusions of law, and proposed orders by October 29.
The circuit court filed findings of fact and conclusions of law on November 15, essentially
finding that there was no substantial change in the parties’ incomes when looking at the
whole picture. The circuit court stated that appellant’s gross income in 2014 was $745,451
and that it is projected to be $873,853.76 in 2021 based on his current pay stubs. It also
noted that appellant is no longer paying child support because all the children have reached
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the age of majority and that his spending habits do not reflect a decrease in income.
Additionally, the circuit court found that appellee is making a stable income of
approximately $73,000. The circuit court indicated that when applying the relevant factors,
there is not a significant change in the parties’ situation that would require a modification
of alimony. The order, also filed on November 15, denied the parties’ request for a
modification of alimony, denied appellee’s motion for contempt, and kept alimony at $7,000
a month. Appellant filed a timely notice of appeal on December 15.
We review domestic-relations cases de novo, but we will not reverse a circuit court’s
finding of fact unless it is clearly erroneous.5 A finding is clearly erroneous when, although
there is evidence to support it, the reviewing court is left with a definite and firm conviction
that the circuit court has made a mistake.6 The circuit court is in the best position to view
the needs of the parties in connection with an alimony award. 7 The burden is on the
appellant to bring up a record sufficient to demonstrate that the circuit court was in error,
and where the appellant fails to meet this burden, we have no choice but to affirm the circuit
court’s order.8 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.9 An
5
Hunter v. Haunert, 101 Ark. App. 93, 270 S.W.3d 339 (2007).
6
Id.
7
Bennett v. Bennett, 2016 Ark. App. 308, 496 S.W.3d 409.
8
Berry v. Berry, 2017 Ark. App. 145, 515 S.W.3d 164.
9
Chekuri v. Nekkalapudi, 2019 Ark. App. 221, 575 S.W.3d 572.
10
abuse of discretion means discretion improvidently exercised, i.e., exercised thoughtlessly
and without due consideration.10
Modification of an alimony award must be based on a material change in the
circumstances of the parties, and the burden of showing such a change in circumstances is
on the party seeking the modification.11 Changes in circumstances are not material if they
were contemplated at the time of the original award. 12 The purpose of alimony is to rectify
the frequent imbalance in the earning power and standard of living of the parties in light of
the particular facts of each case.13 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.14 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 condition and medical needs of
10
Id.
11
Berry, supra.
12
Id.
13
Id.
14
Id.
11
each party, the duration of the marriage, the amount of child support, and the earning ability
and capacity of each party.15
Appellant argues that the circuit court erred by denying his motion to reduce his
alimony. He contends that when the alimony was reduced in 2014, his net income was
$659,975 and that in 2021, his net income was projected to be $488,356.40, “which is a
reduction of over $150,000.00 annually.” He also argues that in 2014, appellee was
unemployed, but she now makes $73,000 a year and has accumulated almost $1 million in
retirement. He maintains that he should not have to continue to pay alimony because
appellee has chosen to pay college expenses for their grown children. He contends that his
alimony should be reduced because (1) his income has decreased by over $150,000 a year
since the entry of the July 2014 orders; (2) appellee’s employment status has changed since
the 2014 orders whereby she is now employed and making $73,000 a year; (3) the parties’
children have reached the age of majority; and (4) appellee has a retirement fund of
approximately $1 million.
To the extent appellant argues that his annual net income has deceased since 2014
by over $150,000, the circuit court chose to look at the gross income instead of the net
income for the relevant years. Since the court was not provided with any income information
for 2020, it relied on appellant’s pay stubs through May 2021 and determined that, on the
basis of that information, appellant was receiving more gross income than what he received
15
Johnson v. Cotton-Johnson, 88 Ark. App. 67, 194 S.W.3d 806 (2004).
12
in 2014. It was up to the circuit court to determine which income amount, gross versus net,
more appropriately reflected appellant’s income for the relevant years, and it decided to use
the gross-income amounts. The circuit court was in the best position to make this
determination, and we will not reweigh the evidence based on a net income analysis that
seems more favorable to appellant. It is not our duty to substitute this court’s judgment for
that of the circuit court.16
Appellant contends that appellee’s employment income negates her need for alimony.
Despite appellant’s contention that appellee was unemployed at the time of the 2014
modification, she testified otherwise. She stated that in 2014, she was making $5,000 less
than what she is making now, so she earned around $67,000. Appellant did not object to
this testimony or present any evidence to contradict it. We do not have the testimony from
the hearing held at the time of the modification, and there is no way of knowing if that
information was disclosed at that hearing. Additionally, the 2014 order does not mention
appellee’s employment status. Thus, the facts presented to the circuit court show that
appellee’s income has increased by $5,000 since the last modification. This is not a
significant enough increase to allow appellant to reduce or even terminate his alimony.
Appellant argues that his alimony should have been reduced because their children
have reached the age of majority. Although the parties’ children have reached the age of
majority, appellee still provides for them financially. However, she no longer has the benefit
16
Nauman v. Nauman, 2023 Ark. App. 41, 660 S.W.3d 598.
13
of the $10,000 a month child support she received from appellant. Despite this, she still has
undertaken the children’s educational and other needs, which is not unusual. Appellee lost
$120,000 a year in child support when the children reached majority, yet she still financially
supported them past majority, going so far as to take out loans to cover their college tuition
and living expenses when appellant did not honor what he said he would do. Appellee’s
expenses alone were over $10,000 a month, not including the monthly amounts she expends
on the children. She has had to deplete the moneys received from the sale of the marital
home in order to continue to meet her financial obligations.
Appellant also maintains that his alimony should be reduced because appellee has a
large retirement fund. Appellee testified that she has over $900,000 in her retirement fund
that she plans to use when she retires at the age of sixty-seven. She indicated that she did
not want to access those funds prior to that time and that she would only be receiving a little
over $4,000 a month from her retirement and Social Security when she retires. The circuit
court considered this evidence and still found that there was not a significant change in
circumstances to require modification of alimony.
The circuit court was asked to decide whether the facts and circumstances of this case
required a modification of appellant’s alimony and ultimately determined that it did not.
Alimony is based on the need of one spouse and the ability of the other spouse to pay.
Appellee testified that her income is not enough to cover her expenses even though she
receives the $7,000 a month in alimony in addition to her income from work. She has had
to deplete the money she received from selling the marital home in order to help cover her
14
expenses. Although appellant contends that his income has decreased, the circuit court
found that it had increased and that his spending did not reflect a reduction in income.
Therefore, the circuit court essentially found that appellee still had a need for the $7,000 in
alimony, and appellant still had to ability to pay that amount. The burden was on appellant
to show that circumstances had changed resulting in the need for a modification of alimony,
and he failed to meet this burden. Thus, the circuit court did not abuse its discretion by
denying appellant’s motion to modify alimony. Accordingly, we affirm.
Affirmed.
KLAPPENBACH and BARRETT, JJ., agree.
Gean, Gean & Gean, by: Roy Gean III, for appellant.
Bryant Law Partners, LLC, by: Veronica L. Bryant, for appellee.
15