dissenting. I respectfully dissent from that part of the majority opinion that reverses and remands the chancellor’s decision regarding the child support and alimony.
Although this court reviews chancery cases de novo on the record, we will not disturb the chancellor’s findings unless they are clearly against the preponderance of the evidence or clearly erroneous. Lytle v. Lytle, 301 Ark. 61, 781 S.W.2d 476 (1989); Ark. R. Civ. P. 52(a). In our review, we are to give deference to the chancellor’s superior position in evaluating the witnesses and their testimony. Lytle, supra. Because there was conflicting testimony, the chancellor was in the best position to resolve the conflicts, and I am not convinced that his decision is clearly erroneous.
As to the issue of child support, the majority finds that the chancellor made his award without making reference to the child-support chart or making any findings of fact. Then, instead of simply remanding for the court either to refer to the chart or to make findings, the majority first finds error in “assessing the same level of support that was based upon the income from [appellant’s] then viable business” because “[b]y ordering the chicken farm sold, the court relieved [appellant] of the source of income upon which his child support was based.” I disagree on both counts.
In October 1994, appellant filed an affidavit of financial means showing his weekly take-home pay to be $159.85. In the ensuing temporary order, appellant’s child-support obligation was set at $37.50 per week, the exact amount referenced by the chart for one with appellant’s admitted income. One year later, appellant submitted another affidavit, this one reflecting a net loss of $46.56 per week. Appellant testified that the value of chickens and his income from raising them had fallen sharply since his first affidavit. He also testified that he has health problems and is basically unemployable. Clearly, the court was not obligated to accept appellant’s second affidavit or to believe appellant’s testimony that he had a negative income as a chicken farmer and was otherwise unemployable. Notably, despite appellant’s asserted inability to pay, he had been paying the $37.50 in weekly support during the pendency of the divorce action. Obviously, the chancellor believed that there had been no material change in appellant’s income since 1994 and simply declined to reduce the amount of child support previously set, which was unmistakably the presumptive amount payable under the chart for appellant’s previously admitted income. In my opinion, this satisfies the requirement that the court refer to the chart, and, since there was no deviation, no additional findings were necessary. I find no reversible error in the chancellor’s award of child support.
Nevertheless, if the majority feels that it must remand the case for a more specific reference to the chart or for findings, it should do so without commenting on the correctness of the amount set in fight of the order that the farm be sold. First, I cannot see that appellant has made any such argument in his brief. To the contrary, as I read his brief, appellant simply argues that the trial court was bound to accept as true his evidence of his present income as a chicken farmer, that the award therefore constituted a deviation from the chart, and that the court failed to make findings to support a deviation. Second, it has been our practice in such cases simply to remand for the chancellor to follow the dictates of the statute requiring reference to the chart or findings to support deviation therefrom. See Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991); Fontenot v. Fontenot, 49 Ark. App. 106, 898 S.W.2d 55 (1995); Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993). Third, to the extent that the majority’s comment might imply that the chancellor’s award is too high and should be reduced on remand, it overlooks a number of other factors that a chancellor could otherwise consider in making an award, including the amount a payor is capable of earning, see McJunkins v. Lemons, 52 Ark. App. 1, 913 S.W.2d 306 (1996), and the sums that a payor is likely to realize from a court-ordered sale of marital assets.
The majority has also found that, based on a disparity in the parties’ incomes and “considerable evidence” of appellant’s health problems, an alimony award to appellant is required. I disagree. There is very little in the record concerning appellant’s purported health problems; most of what does appear consists of appellant’s general, nondescriptive, and vague testimony. Moreover, the testimony fails to demonstrate that appellant is unemployable. Appellant testified that he has back problems that hinder his mobility and breathing, that he has prostate problems (consisting of an infection that “comes and goes”), and difficulty with his esophagus. The only medical testimony came from appellant’s chiropractor, who stated that appellant has a degenerative and progressive condition in his spine called “ankylosis spondylitis,” which restricts his mobility and his ability to stand or walk for extended periods of time. He thought appellant was fifteen percent impaired and that his condition was manageable. The chiropractor opined that appellant would be disabled in approximately ten years and that presently appellant could perform work using his head and hands. Although appellant testified that he was unable to do any physical labor and that he did not know of any job that he was capable of performing, he was a chicken farmer up until the court ordered the farm sold. Also, appellant said that he had not applied for social security disability benefits.
The record reflects that appellant was fifty-six years old at the time of trial, that he had a high school education, and that he had mechanic, carpentry, and welding skills. Appellant also testified that he had experience as an auto-parts salesman. Although appellant may have been required to change employment, I do not believe the record commands an award of alimony on that basis. Moreover, appellee’s latest affidavit of financial means dated October 1995 reflected a weekly take-home pay of $560.00, or an approximate $28,000.00 annual net pay. Appellee’s receipt of compensation in excess of this amount was to reimburse her for the personal use of her automobile on her mail carrier route, which she said was about eighty-eight miles each day. Appellee also testified that she was paying the college tuition and expenses for the parties’ son. In my opinion, the evidence was such that the chancellor could reasonably have found that the difference in appellee’s income and appellant’s earning capacity was not significant.
Further, in making its decision concerning alimony, the chancellor may take into account the property awarded to the parties. Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990). Here, appellant was awarded one-half of the sale proceeds from the marital home, one-half of seven bonds in $500.00 denominations, and one-half of appellee’s retirement and savings plan.
It is well established that an award of alimony is left to the sound discretion of the chancellor and his decision will not be reversed absent a clear abuse of discretion. Bolan, supra. I cannot say that the chancellor abused his discretion in declining to award alimony to appellant.
I would affirm.
Jennings, J., joins in this dissent.