dissenting.
Prior to today’s majority opinion, our law was so well settled as to be axiomatic that division of marital property and the award of alimony were “complimentary devices that a trial judge employs to make the dissolution of a marriage as equitable as 'possible.” (Emphasis supplied.) Harvey v. Harvey, 298 Ark. 308, 766 S.W.2d 935 (1989); Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980); Ferguson v. Ferguson, 251 Ark. 585, 473 S.W.2d 869 (1971); Scott v. Scott, 86 Ark.App. 120, 161 S.W.3d 307 (2004); Cole v. Cole, 82 Ark.App. 47, 110 S.W.3d 310 (2003): Davis v. Davis, 79 Ark.App. 178, 84 S.W.3d 447 (2002); Mearns v. Means, 58 ArkApp. 42, 946 S.W.2d 188 (1997) (overruled on another point of law); Tortorich v. Tortorich, 50 Ark.App. 114, 902 S.W.2d 247 (1995). Now the majority has sanctioned trial courts to use unequal property settlements and the denial of alimony as a one-two punch.
It is not clear where the majority has acquired the authority to overrule cases from our supreme court, but I note that hitherto, it was settled law that the primary factors to be considered |14in the award of alimony were the needs of the spouse requesting alimony and the other spouse’s ability to pay. See, e.g., Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996). It was uncontroverted at the hearing that Ms. Milanova’s financial resources were many times greater than Mr. Evti-mov’s, and that despite working two jobs, he was struggling to get by. The majority’s ratification of the trial court’s so-called finding that “appellant provided no contribution to marital assets” is no justification for denying alimony to Mr. Evtimov.
Again, it was, at least prior to today’s opinion, black-letter law that the purpose of alimony is to rectify, insofar as is reasonably possible, the frequent economic imbalance in the earning power and standard of living of the divorced husband and wife. See, e.g., Mitchell v. Mitchell, 61 Ark.App. 88, 964 S.W.2d 411 (1998). I find it ironic that the majority relies on Mitchell for the proposition that it need not reduce the amount of alimony to a mathematical formula. In the first place, that is precisely what the court of appeals did in that case.2 But more importantly, we are not|ifiin disagreement over the exact dollar amount of alimony, but rather whether it should be awarded at all. I submit that by any calculation, mathematically certain or otherwise, it was error not to award alimony.
While I concede that the decision to award alimony and divide marital property is left to the discretion of the trial judge, I lament that the majority has chosen to define “discretion” as “largess.” Perhaps it is time that the majority be reminded that judicial discretion
means discretion bounded by rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of judicial whim, but the exercise of judicial judgment, based on facts and guided by law or the equitable decision or what is just and proper under the circumstances. It is legal discretion to be exercised in discerning the course prescribed by law and is not to give effect to the will of the judge, but to that of the law.... A liberty or privilege to decide what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of the law.
Black’s Law Dictionary 323 (6th ed. 1990). Accordingly, in this case, the trial court had the authority to make a property award in lieu of alimony, Ferguson, supra, or could award alimony to compensate a party for an unequal property distribution, Harvey, supra, but not both deny alimony and give Mr. Evtimov less marital property. That would clearly be an erroneous application of law, which is a manifest abuse of discretion. See Hall v. Kingsland School Dist., 56 Ark.App. 110, 938 S.W.2d 571 (1997).
Affirming this manifestly incorrect trial court decision is not justified by the majority’s resort to fact finding. I am not sure which is the more objectionable: that they made a mistake of law in that they endeavored to do it at all, O’Dell v. Rickett, 92 Ark.App. 364, 214 S.W.3d 301 (2005) (holding that the appellate court will not find a fact that was not found below as that would be an intrusion into the province of the trial court), or that they made numerous mistakes of fact |1(iwhen they made these findings so poorly. Regarding the latter point, the majority states that Ms. Milanova obtained her “position” prior to the marriage, which, they opine without citation of authority, negates “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. This fact finding does not counter an argument that Mr. Evtimov makes, and while I am loathe to engage in the same practice, I feel compelled to point out that while Ms. Milanova obtained her credentials prior to her marriage, her career flourished while she was in the salutary state of matrimony.
No less infirm is the majority’s finding that Mr. Evtimov somehow benefitted from not having to pay a portion of the indebtedness on the marital residence that Ms. Milanova was awarded as her sole property, not to mention all the furnishings contained within its 3014 square feet and the fact that she was saved the many thousands of dollars in moving expenses if she was required to vacate the premises. This finding is particularly curious in light of the fact that in Boyles v. Boyles, supra, it is one of the enumerated factors that a trial court should consider in deciding whether alimony should be awarded.3 Indeed, the only factor promulgated in Boyles that weighs against an award of alimony is the duration of the marriage. But again, even if the trial judge decided that alimony was not warranted, it was still not equitable to award him a lessor share 117of the marital property.
With breathtaking legerdemain, the majority attempts to obscure the fact that equity and statutory law requires that Mr. Evtimov receive both an equal share of the marital property, see Arkansas Code Annotated section 9-12-315 (Repl.2008), and alimony, see Arkansas Code Annotated section 9-12-312 (Repl.2008), by characterizing the unequal distribution of marital property into something that “resembles” an award of rehabilitative alimony. It ascribes this patently unsound decision to the trial court’s recognition of Mr. Evti-mov’s “immediate need for cash.” It should be obvious that Mr. Evtimov would not have an “immediate need for cash” if he received alimony. Again, we must confront that black-letter law that the primary considerations for an award of alimony is the needs of the spouse requesting alimony and the other spouse’s ability to pay. See, e.g., Mulling v. Mulling, supra. The fact that Mr. Evtimov was given distribution of his less than equal share of marital property in monthly installments is rendered no less unpalatable by the majority’s conclusion that Ms. Milanova incurred some adverse tax consequence. This conclusion is neither supported by the record or our tax laws.
Despite the majority’s efforts to denigrate Mr. Evtimov, he did not engage in any conduct that would justify giving him a lesser share of the marital assets.4 Although he was unsuccessful in his business ventures, efforts that he undertook with the express agreement, if not insistence, of Ms. Milanova, there was absolutely no evidence that he engaged in the kind of misconduct that has hitherto supported an unequal distribution of the marital estate. Cf. Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985) (affirming unequal division where wife attempted to have her husband killed); Keathley v. Keathley, 76 Ark.App. 150, 61 S.W.3d 219 (2001) (affirming an unequal distribution where the husband gambled and fraudulently obtained credit cards on which he charged over $100,000); Forsgren v. Forsgren, 4 Ark.App. 286, 630 S.W.2d 64 (1982) (affirming unequal distribution of stock where wife excessively consumed alcohol and drugs resulting in massive medical bills).
Accordingly, what this case all boils down to is the majority ratifying the argument that Ms. Milanova made to the trial court: She made the money so she should get to keep it. I submit that this holding will bring about consequences that the majority most certainly did not intend.
ROBBINS, J., joins.
. I quote the following from Mitchell, just to illustrate my point:
[Mr. Mitchell’s] gross income at the time of trial was approximately $129,000.00 per year with a net take-home pay of $83,000.00. Mrs. Mitchell has a master’s degree in food and nutrition and has worked as a hospital dietician. Since the birth of the parties' daughter, Mrs. Mitchell has stayed at home and earned approximately $1,300.00 per year. At the time of the divorce she was not employed. During the pendency of the divorce, Mrs. Mitchell received $3,000.00 per month as support for herself and her daughter. At trial she submitted a list of expenses totaling $3,700.00 per month. This included anticipated future expenses which the chancellor declined to consider, leaving a total of $2,800.00 as the monthly expenses for Mrs. Mitchell and the child.... After considering all the appropriate factors, we conclude that the amount of alimony awarded was excessive. Under these circumstances, and on de novo review, we may set the amount of alimony.... In the case at bar we find that alimony should be set at $2,100.00 per month.
.The factors referred to by Boyles, are: (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 parties’ income, both current and anticipated; (5) the extent and nature of the resources and assets of each of the parties; (6) the amount of income of each that is spendable; (7) the earning ability and capacity of each party; (8) the property awarded or given to one of the parties, either by the court or the other party; (9) the disposition made of the homestead or jointly owned property; (10) the condition of health and medical needs of both husband and wife; (11) the duration of the marriage; (12) the amount of child support.
.In Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982), the Arkansas Supreme Court deleted the relative fault of the parties as a factor considered by the court with regard to alimony.