Whitworth v. Whitworth

KAREN R. BAKER, Judge,

dissenting.

An award of rehabilitative alimony should be made in this case. Our courts initially recognized rehabilitative alimony in 1990, when this court considered Bolan v. Bolan, 32 Ark. App. 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 n. 1, 796 S.W.2d at 360 n. 1. The primary purpose of rehabilitative alimony is to afford the recipient a specific period of time in which to become self supportive. See id.

A popular treatise on divorce explains the importance of a trial court’s utilizing an award of rehabilitative alimony to allow a spouse who has been out of the work force for a significant amount of time the opportunity to become self-supporting:

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

24A Am.Jur.2d Divorce § 760 (2008) (footnotes omitted).

IsMs. Whitworth’s future self-sufficiency is a realistic likelihood if rehabilitative alimony is awarded. Rehabilitative alimony is specifically designed to bridge-the-gap from her role in the marriage as a homemaker and primary caretaker of the children to her independence as a single individual and independent contributor to the children’s welfare. While the youngest daughter would be close to the age of majority by the time Ms. Whitworth finished proposed training as a dental assistant, experience and common sense tell us that a parent’s ability to assist and contribute to their children’s welfare does not end when they reach the age of eighteen or graduate from high school. As the majority recognized in attributing value to Mr. Whitworth’s contributions to the couple’s oldest child who is nineteen, a parent’s ability to contribute to an adult child’s welfare is legally significant to a court’s consideration and an evaluation of need.

The facts and circumstances of this case fit squarely within the parameters of our case law supporting an award of rehabilitative alimony. The parties had a lengthy, twenty-year marriage. Mr. Whitworth was gainfully employed during the marriage. He is currently earning well in excess of $100,000 a year. His monthly income exceeds his expenses by approximately $1,400. He has a credit union account and thrift plan, as well as pension benefits and a stock purchase plan. On the other hand, Ms. Whitworth has no post-high school education or special training. She testified that the parties agreed that she would be a stay-at-home mom. Although Mr. Whitworth disputed that the parties had agreed, it is undisputed that she performed that role for fifteen years. She has had only two jobs since the | parties’ separation, both of which paid near minimum wage. She has no retirement; she has no health insurance. She suffers from numerous health-related issues, including ankylosis spondylosis, fi-bromyalgia, TMJ, hypoglycemia, Bell’s palsy, and she recently suffered a stroke. She now lives in a trailer home on property owned by her parents. The majority’s decision today leaves Ms. Whitworth in likely poverty for the foreseeable future. The decision is particularly unjustified given the likelihood of Ms. Whitworth achieving self-sufficiency within a period of a few years.

Ms. Whitworth’s proposed choice of training and skill development appears well suited for the physical limitations she described. Although her training plan was not as developed as it might have been clearly, some form of education and training is necessary if Ms. Whitworth is to do more than merely survive. The majority stated, “The record does not indicate that appellant’s health would be a major impediment to her finding employment.” This may be true. However, without retraining or further education the record does not support the conclusion that Ms. Whitworth can support herself in a manner even approaching her standard of living during the parties’ twenty-year marriage. In fact, it is extremely unlikely that she will be able to earn more than minimum wage or pay more than minimum child support. Under these facts and circumstances, the trial court clearly erred in failing to award rehabilitative alimony.1

| ml would reverse.

. The concurring opinion makes note of this court’s recent decision in Evtimov v. Milano-va, 2009 Ark. App. 208, 300 S.W.3d 110, stating, “[OJur court recently affirmed a denial of alimony where the circumstances of the requesting spouse were significantly more dire than Ms. Whitworth's.” Regardless of the ultimate circumstances of the requesting spouses, the facts of these two cases were substantially different. Evtimov involved a four-year marriage rather than a twenty-year marriage. Additionally, in Evtimov there was no indication that the requesting spouse had been absent from the workforce for an extended period — fifteen years in this case— while providing child-care services in the home.