Evtimov v. Milanova

KAREN R. BAKER, Judge.

| Appellant Ivan Evtimov appeals his decree of divorce from appellee Mariofanna Gueorgieva asserting three points of error: (1) The trial court erred in granting appel-lee a divorce where appellant presented insufficient evidence regarding residency and separation; (2) The trial court erred in refusing to award appellant alimony despite the significant difference in income and appellant’s limitation on future employment; (3) The trial court erred by failing to equally divide the marital property of the parties. We find no error and affirm.

Appellant Ivan Evtimov and appellee Mariofanna Gueorgieva were married in Bulgaria on or about December 19, 2001. Shortly after they were married, the couple moved to Little Rock, Arkansas, where appellee began working for the University of Arkansas at 12Little Rock. Appellee filed for a divorce on March 27, 2006, and a hearing was held on July 24, 2007. Appellant did not challenge the divorce; however, he contended that he should receive a portion of the tax refund from the last year of marriage, sought equity in the marital home, and requested spousal support.

In 2002, the parties purchased a Toyota Camry, which at the time of the hearing was in appellant’s possession and worth approximately $11,000. Appellee testified that the parties purchased a house in 2004, that the initial purchase of the home was $324,900, and that the parties owed slightly less on the house than it was worth. The testimony and evidence reflected that appellee had retirement accounts totaling $92,194 and marital debts totaling $32,700 excluding the home mortgage.

Appellee also testified that appellant contributed nothing to her education as she received her position prior to the parties’ marriage. She, however, had contributed to his education, spending a great deal of money on many language and business courses for him during the marriage. Despite her expenditures and efforts to assist appellant in obtaining satisfactory work, and her expectations that he would contribute to the marriage financially, he continued to refuse to work. In addition to his failure to contribute to the marital assets, appellee explained that appellant had wasted marital assets, particularly by destruction to the marital home and incurring marital debt. She also explained that appellant had used her checking account without her authorization, asserting that he was stealing from her.

| sAppeIlee’s daughter reaffirmed appellant’s lack of contribution to the marital assets. She added that appellant had many private teachers in addition to the English courses he took at the University. When he was enrolled in English classes, he would ask her for help in writing essays and with grammar; however, despite the fact that she helped him “a lot” and made herself available to assist him in learning the language, she could not characterize him as “eager” to learn the English language.

At the hearing, appellant listed a variety of ideas that either appellee or he had suggested as avenues of income for appellant. Appellant contended that he was unable to work for two months of those years of marriage due to an infection in his leg. Appellant contradicted appellee’s testimony that he did not contribute by stating that he sometimes gave money to her, but many times she rejected receiving any money from him. He also disputed her testimony that he had destroyed the house; instead, he asserted that he was attempting to maintain the house by doing yard and electrical work to avoid her using maintenance people. As for the allegations of his stealing, he categorically denied that he stole from her. His explanation was that he was using her checking account to pay some of his expenses. While appellee opined that appellant was capable of working, appellant insisted that his limitations with the English language restricted his earning capacity. In his affidavit of financial means, he indicated that he netted $339.41 biweekly with expenses of $1070 a month.

The trial court found that appellant had not contributed to the marital household. |4On appeal, appellant does not challenge that finding. Instead, he challenges the trial court’s denial of alimony arguing that it was error to deny his requested alimony based upon the difference in income and future earning capacity.

While the trial court did not award alimony, he did order appellee to pay appellant an amount equal to one-half of her retirement fund, minus one-half the value of the couple’s consumer debt and one-half the value of the car awarded to appellant, in the form of a monthly payment in the amount of $470 for sixty months at six percent interest. The distribution of assets to appellant totaled $24,000, and the court placed all payment of the debt obligation upon appellee.

Residency

Appellant’s first assertion of error is that the trial court erred in granting appellee a divorce where appellant presented insufficient evidence regarding residency and separation. To obtain a divorce, a plaintiff must prove residency in the state by either herself or the defendant for sixty days before the commencement of the action and residency in the state for three full months before the final judgment granting the decree of divorce. Ark.Code Ann. § 9-12-307(a)(l)(A) (Repl. 2006).

Residency must be proven and corroborated in every instance. Ark.Code Ann. § 9 — 12—306(c)(1) (Repl.2006); Hodges v. Hodges, 27 Ark.App. 250, 770 S.W.2d 164 (1989). If a trial court renders a divorce decree without obtaining sufficient proof and corroboration of residency, the decree has been entered without jurisdiction. Araneda v. Araneda, 48 Ark.App. 236, 894 S.W.2d 146 (1995). We recognize that, where it is plain that there is no collusion, corroboration of residency need only be slight. Hodges, supra. But, by the same token, residency for the required period is jurisdictional and, dealing as it does with the power and right of the trial court to act, corroborating evidence of residency should not be speculative and vague in scope. Araneda v. Araneda, supra. Proof of residency must be corroborated in every action for divorce regardless of the defendant’s admission. Ark.Code Ann. § 9-12-306(b) (Repl.2006); Hodges, supra. The purpose of the rule requiring corroboration is to prevent the procuring of divorces though collusion, and when it is plain that there is no collusion, the corroboration of residence only needs to be slight. Hodges, supra.

The evidence of the parties’ residence sufficiently corroborates residence in this case. The record contains appellee’s W-2 statements from 2002-2006 with each listing a Little Rock address as the employee’s residence, the notarized deed to the house which was filed in 2004, and a letter enclosing the “Owner’s Policy of Title Insurance” sent to appellee’s Little Rock address and dated April 7, 2005. As for evidence of the separation, a witness for appellee testified that appellant lived for six to eight months by himself, and specifically that they had lived separate and apart since the filing of the petition. The petition was filed on March 27, 2006. Paragraph four alleged that the parties had been living separate and apart since January 9, 2006, and appellant admitted that allegation in his answer. Accordingly, the trial court did not err in finding residency and adequate |fievidence of separation.

Alimony

Neither did the trial court err in refusing to award alimony. A trial judge’s decision regarding alimony is a matter that lies "within his sound discretion and will not be reversed on appeal absent an abuse of that discretion. See Hiett v. Hiett, 86 Ark.App. 31, 158 S.W.3d 720 (2004); Delacey v. Delacey, 85 Ark.App. 419, 155 S.W.3d 701 (2004). An abuse of discretion means discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Southwestern Bell Yellow Pages, Inc. v. Pipkin Enterprises, Inc., 359 Ark. 402, 198 S.W.3d 115 (2004) (citing Arnold v. Camden News Publ’g Co., 353 Ark. 522, 110 S.W.3d 268 (2003)). Our supreme court and this court have emphasized in the past that the circuit court is in the best position to view the needs of the parties in connection with an alimony award. See Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007).

The purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case. Id. The primary factors that a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse’s ability to pay. Id. The trial judge should also consider the following secondary factors: (1) the financial circumstances of both parties; (2) the couple’s past standard of living; (3) the value of jointly owned property; (4) the amount and nature of the income, both current and 17anticipated, of both parties; (5) the extent and nature of the resources and assets of each of the parties; (6) the amount of each party’s spendable income; (7) the earning ability and capacity of both parties; (8) the property awarded to each party; (9) the disposition of the homestead or jointly owned property; (10) the condition of health and medical needs of the parties; (11) the duration of the marriage. Id. See also Ellis v. Ellis, 75 Ark.App. 173, 57 S.W.3d 220 (2001).

We cannot say that the trial judge abused his discretion in denying appellant’s request for alimony. The crux of appellant’s argument is that appellee should pay alimony because she can due to her significantly higher income. While the trial court did not award alimony, it did mandate a present distribution of appel-lee’s retirement account to be paid over a five year period with interest. Alimony and property divisions are complementary devices that a trial judge employs to make the dissolution of a marriage as equitable as possible. See Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002). See also Janet Flaccus, Domestic Relations Contempt Orders, and the Bankruptcy Automatic Stay, Property of the Estate and Concurrent Jurisdiction, 2004 Ark. L. Notes 41, 50 (2004) (stating “It should be recalled that under domestic relations law an equitable division of property is a way of avoiding a need for temporary alimony”).

Appellee does not challenge the immediate distribution of her retirement, nor the interest awarded on the five-year payment plan. Accordingly, the appropriateness of that division is not at issue in this case. It is, however, appropriate for this court to consider that Rthe distribution resembles an award of rehabilitative alimony, and that appellant received the money without the corresponding benefit to appellee of a shifting of income for tax purposes. In making the distribution, the trial court noted that it believed the current distribution was more equitable in these circumstances than to have appellant wait until appellee retired in the future. The trial judge specifically stated from the bench that this distribution addressed appellant’s immediate need for cash.1 The trial judge also specifically found appellant less than forthcoming and did not afford him much credibility on the debt and income issues.

In reaching our decision, we are mindful that the award of alimony is not mandatory, but is instead discretionary, and the trial court’s decision regarding any such award will not be reversed absent an abuse of discretion. Powell v. Powell, 82 Ark.App. 17, 110 S.W.3d 290 (2003). Discretion and flexibility are critical to the trial court’s ability to make the dissolution of the marriage as equitable as possible. As we explained in Mitchell v. Mitchell, 61 ArkApp. 88, 964 S.W.2d 411 (1998), neither this court, nor the supreme court, has ever attempted to reduce the amount of alimony to a mathematical formula. Presumably,_j^it has been thought that the need for flexibility outweighs the corresponding need for relative certainty. Id. In setting the amount of alimony, the trial court may consider a range of acceptable alternatives. Id.

Here, the trial court ordered an immediate distribution of appellant’s interest in appellee’s retirement that addressed appellant’s present need for liquid funds. The parties in this case were married for less than five years prior to their separation, appellant presented no evidence that his earning capacity was reduced because he relinquished rights or opportunities in furtherance of the marriage, and appellee presented evidence that appellant’s failure to contribute to the marriage combined with his abusive behavior were the reasons for the marriage’s failure. The evidence showed that appellee had obtained her position prior to the marriage negating any equitable claim that appellant’s services in the home allowed appellee to pursue and obtain the credentials that provided her with a higher earning capacity. Rectification of economic imbalances is not necessarily appropriate when the marriage relationship did not influence the imbalances in earning capacity.

Furthermore, in the context of rehabilitative alimony, it is clear that the standard of living to be maintained is the standard achieved by the marriage. Our courts initially recognized rehabilitative alimony in 1990, when this court considered Bolan v. Bolan, 32 ArkApp. 65, 796 S.W.2d 358 (1990). Rehabilitative alimony is alimony that is payable for a short, specified duration of time. See Bolan, 32 Ark.App. at 67-68 n. 1, 796 S.W.2d at 360 n. 1. The primary purpose of rehabilitative alimony is to afford the recipient a specific Imperiod of time in which to become self-supportive:

Generally, the purpose of rehabilitative maintenance is to allow the recipient spouse to become self-supporting; its purpose is to aid the former spouse as he or she transitions back into the workplace and self-sufficiency. Rehabilitative alimony enables the receiving spouse to establish the capacity for self-support commensurate with the standard of living established during the course of the marriage, through the redevelopment of previous skills or the provision of training necessary to develop new skills. The goal of self-sufficiency must, however, be balanced against the realistic likelihood that the spouse will be able to attain a level of support comparable to the standard of living enjoyed during the marriage, especially where the spouse has not been in the work force for a long period of time.
An award of rehabilitative alimony is also designed to permit former spouses to develop their own lives free from obligations to each other. Rehabilitative alimony is a “bridge-the-gap” measure to aid the recipient spouse in making the transition from married life to being single.

Other purposes rehabilitative alimony is intended to serve include the following:

to give the paying spouse some predictability concerning financial obligations, to prevent possible further court appearances by permitting the court to take into consideration reasonably foreseeable changes in the recipient spouse’s circumstances to encourage the recipient spouse to find employment or complete education or training leading to employment.

AMJUR DIVORCE § 760 (footnotes omitted).

We cannot say that the trial court abused its discretion in denying alimony when appellant does not challenge the trial court’s finding the appellant provided no contribution to the marital assets and evidence indicated that he merely depleted marital resources. Although he asserted that his earning capacity was limited by his poor English skills, the evidence established that appellee provided ample opportunity for him to learn the language through private tutoring and university classes. Whether appellant’s professed | uinability to communicate effectively in English was a result of disinterest or inability, nothing in the record indicates how further classes would improve his English skills in order to increase his earning power. Furthermore, there was no testimony explaining how his limited English skills would affect his earning capacity should he return to his home country.

Likewise, we find no error in the trial court’s division of marital property. The trial judge’s distribution of property balances in appellant’s favor with the property distribution and the allocation of debt. Alimony and property divisions are complementary devices that a trial judge employs to make the dissolution of a marriage as equitable as possible. See Davis v. Davis, 79 Ark.App. 178, 84 S.W.3d 447 (2002). A judge’s decision to allocate debt to a particular party or in a particular manner is a question of fact and will not be reversed on appeal unless clearly erroneous. Ellis v. Ellis, 75 Ark.App. 173, 57 S.W.3d 220 (2001). The allocation of debt is an essential issue to be resolved in a divorce case, id., and the overall distribution of property must be considered in that allocation. See Boxley v. Boxley, 77 Ark. App. 136, 73 S.W.3d 19 (2002).

In this case, the division of property addressed any inequities without an award of alimony. This court reviews division of marital property cases de novo. Glover v. Glover, 4 Ark.App. 27, 627 S.W.2d 30 (1982). The trial court has broad powers to distribute property in order to achieve an equitable distribution. Keathley v. Keathley, 76 ArkApp. 150, 61 S.W.3d 219 (2001). The overriding purpose of Arkansas Code Annotated section 9-12-315 | i2(Repl.20Q2) is to enable the court to make a division of property that is fair and equitable under the specific circumstances. Id. Arkansas Code Annotated section 9-12-315 provides that marital property is to be divided equally unless it would be inequitable to do so. Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988). If the property is divided unequally, then the court must give reasons for its division in the order. Ark.Code Ann. § 9-12-315(a)(l)(B) (Repl.2002); Harvey v. Harvey, supra. The code also provides a list of factors the court may consider when choosing unequal division. Ark.Code Ann. § 9 — 12—815(a)(1)(A)(i)—(ix) (Repl.2002). This list is not exhaustive.

Arkansas Code Annotated section 9-12-315 does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Creson v. Creson, 53 ArkApp. 41, 917 S.W.2d 553 (1996). The trial court is vested with a measure of flexibility in apportioning the total assets held in the marital estate upon divorce, and the critical inquiry is how the total assets are divided. Id. (Emphasis added.) These broad powers, under the statute, include the distribution of all property in divorce cases, marital and non-marital, in order to achieve an equitable distribution. Id.

Under the facts presented in this case, we find no error in the trial court’s distribution of property. A trial judge’s unequal division of marital property will not be reversed unless it is clearly erroneous. Cole v. Cole, 89 Ark.App. 134, 201 S.W.3d 21 (2005). The trial court in this case specifically found that any sale of the marital residence would result in a deficiency to which appellant could not contribute. The trial court | ^accordingly awarded the residence, which was deeded to appellee in her name only, to appellee as her sole and separate property, free and clear of any claims by appellant. None of the debt obligation for the residence was allocated to appellant. While this may have resulted in an unequal distribution, we cannot say that the division of the total assets and debt allocation was clearly erroneous and inequitable toward appellant.

Affirmed.

VAUGHT, C.J., MARSHALL and HENRY, JJ., agree. HART and ROBBINS, JJ., dissent.

. Despite the trial court's immediate distribution of appellant’s interest in appellee's retirement and award of accruing interest, the dissenting judges assert that this court should find that the trial court abused its discretion in failing to grant alimony. Neither dissent cites a case with factual similarities to support the award of alimony. Furthermore, neither dissent cites a case supporting the contention that providing appellant monthly funds for a period of five years to address appellant’s need for immediate cash demonstrates that the trial court abused its discretion by acting thoughtlessly and without due consideration in denying alimony. Southwestern Bell Yellow Pages, Inc. v. Pipkin Enterprises, Inc., 359 Ark. 402, 198 S.W.3d 115 (2004) (citing Arnold v. Camden News Publ’g Co., 353 Ark. 522, 110 S.W.3d 268 (2003)).