Dace v. Doss

Cite as 2017 Ark. App. 531

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-17-51

HAROLD R. DACE Opinion Delivered: October 18, 2017

APPELLANT APPEAL FROM THE WHITE COUNTY
CIRCUIT COURT
V. [NO. 73DR-11-564]

DEBRA (DACE) DOSS HONORABLE CRAIG HANNAH,
APPELLEE JUDGE

AFFIRMED

DAVID M. GLOVER, Judge

Harold R. Dace appeals the White County Circuit Court’s denial of his request to

terminate his alimony obligation to appellee Debra (Dace) Doss. Specifically, he contends

(1) the circuit court erred in not terminating Doss’s alimony upon her remarriage; (2) it also

erred in requesting and considering evidence outside the record to determine Doss’s

monthly expenses; and (3) Act 1487 of 2013 calls into question the validity of permanent

alimony awards. We affirm.

Dace and Doss divorced in 2012 after a seventeen-year marriage. The circuit court

awarded Doss alimony, with the divorce decree stating, “Based on [Dace’s] income of

$4,000.00 per month and [Doss’s] income of $800.00 per month, [Dace] shall pay [Doss]

alimony in the amount of $619.00 per month for the remainder of [Doss’s] life.” Doss

remarried on November 7, 2015; after her remarriage, Dace unilaterally terminated his

alimony payments to her.
 Cite as 2017 Ark. App. 531

In April 2016, Doss filed a motion for contempt against Dace, asking the circuit court

to hold him in contempt for terminating her alimony payments in violation of the terms of

the divorce decree. In response, Dace filed a motion to terminate his alimony obligation

due to Doss’s remarriage and because she no longer had a need for alimony. After a hearing

on the matter, the circuit court found (1) Doss had the ability to earn at least minimum

wage and imputed a monthly income of $1,075 to her; (2) Doss had reasonable monthly

expenses of $1,309; (3) Doss had remarried and her current husband now provided housing

and paid some of her other monthly expenses; and (4) Doss had a current need of $234.

The circuit court reduced Doss’s alimony from $619 per month to $234 per month as of

May 31, 2016 (the date Dace filed his motion to terminate alimony); ordered Dace to pay

Doss a total of $5,269 in back alimony; and found Dace had an ongoing duty to pay alimony

in the amount of $234 per month. Dace timely appealed the circuit court’s ruling. 1

Standard of Review

Appeals of domestic-relations proceedings are reviewed de novo. Nelson v. Nelson,

2016 Ark. App. 416, 501 S.W.3d 875. The decision to grant alimony lies within the sound

discretion of the circuit court and will not be reversed on appeal absent an abuse of

discretion. Beck v. Beck, 2017 Ark. App. 311, 521 S.W.3d 543. An abuse of discretion means

discretion improvidently exercised, i.e., exercised thoughtlessly and without due

consideration. Bennett v. Bennett, 2016 Ark. App. 308, 496 S.W.3d 409. This court has

recognized that a circuit court is in the best position to view the needs of the parties in

connection with an alimony award. Beck, supra. It is not our duty under our standard of

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Doss has not appealed the reduction in the amount of her alimony.
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review to simply substitute our judgment for that of the circuit court, which was in a far

better position to judge the credibility of the witnesses. Berry v. Berry, 2017 Ark. App. 145,

515 S.W.3d 164.

The purpose of alimony is to rectify economic imbalances in earning power and

standard of living in light of the particular facts of each case; the circuit court may make an

award of alimony that is reasonable under the circumstances. Brave v. Brave, 2014 Ark. 175,

433 S.W.3d 227. The primary factors to be considered in determining whether to award

alimony are the financial need of one spouse and the other spouse’s ability to pay; secondary

factors are the financial circumstances of both parties, the amount and nature of both current

and anticipated income of both parties, the extent and nature of the resources and assets of

each party, and the earning ability and capacity of both parties. Id. The amount of alimony

should not be reduced to a mathematical formula, as the need for flexibility outweighs the

need for relative certainty. Id.

Court-ordered alimony is always subject to modification. Nelson, supra. Modification

of an alimony award must be based on a significant and 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. Berry, supra.

I. Continuation of Alimony

Dace first argues the circuit court erred in not terminating his alimony obligation to

Doss. Specifically, he argues Doss no longer has a need for alimony after her remarriage in

November 2015; the alimony award should have automatically terminated on her

remarriage pursuant to Arkansas Code Annotated section 9-12-312(a)(2)(A); and the circuit

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court’s use of a mathematical formula in determining a modified amount of alimony was

contrary to our supreme court’s holding in Brave, supra, that an alimony award should not

be reduced to a mathematical formula because the need for flexibility outweighs the need

for relative certainty. We cannot agree with Dace’s contentions.

Arkansas Code Annotated section 9-12-312(a)(2)(A) (Repl. 2015) provides, “Unless

otherwise ordered by the court or agreed to by the parties, the liability for alimony shall

automatically cease upon . . . the date of the remarriage of the person who was awarded the

alimony.” Dace acknowledges in his brief that the statutory provision states that alimony

automatically terminates when certain events occur “unless otherwise ordered by the court,”

but he contends that while the circuit court originally ordered alimony to be paid for the

remainder of Doss’s life, the new order, entered in October 2016, does not “order

otherwise,” merely stating that Dace “shall have an ongoing duty to pay alimony in the

amount of $234.00 per month.”

Arkansas Code Annotated section 9-12-312(a)(2)(A) does not require the circuit

court to terminate Dace’s alimony obligation to Doss. The first rule in considering the

meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary

and usually accepted meaning in common language; when the language of a statute is plain

and unambiguous, there is no need to resort to the rules of statutory construction. Artman

v. Hoy, 370 Ark. 131, 257 S.W.3d 864 (2007). Dace was originally ordered to pay Doss

alimony for the remainder of her life; Doss was forced to file a motion for contempt against

Dace when he unilaterally stopped paying alimony after she remarried. The hearing

regarding alimony was held well after Doss had remarried, yet the circuit court, fully aware

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of Doss’s remarriage, found Dace “shall have an ongoing duty to pay alimony,” although it

was reduced from $619 per month to $234 per month. Therefore, the circuit court clearly

ordered otherwise, finding Dace’s alimony obligation should continue, even in light of

Doss’s remarriage.

Dace further contends his alimony obligation should have terminated at the time of

Doss’s remarriage because she no longer had a need for alimony after that date. Specifically,

he argues that once Doss remarried, she no longer had to pay rent or utilities, and those

savings alone exceeded the $619 she was receiving in alimony prior to her remarriage.

Dace testified at the hearing that he stopped paying Doss alimony without a court

order and without consulting Doss about her continued monthly needs after she remarried.

He reported that his income had not changed significantly since the divorce; he had received

a $1 per-hour raise at his job.

Doss testified that she remarried in November 2015 and moved to Fayetteville,

where her new husband was living. She stated she is a hairdresser and had worked at a salon

in Vilonia for twenty years; after her remarriage, she continued to commute to Vilonia for

two or three days every other week. She said she was now making less money because she

was working fewer days and had lost some clients when she moved to Fayetteville; she

explained that she did not cut hair in Fayetteville because she could not afford the booth

rental and because, at fifty-four, starting a new business with no clientele would be difficult

because people do not want to go to the “old girl.” She said she continued to commute to

Vilonia because she had a client base, and that was the only money she was making; she had

applied for entry into a program for medical-assistant and surgery-tech jobs, but she was not

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accepted; she also had worked some temporary minimum-wage jobs, but it cost her more

in gas than she made; and stores wanted younger people.

Doss agreed her new husband paid the rent and utilities, and she no longer had those

expenses. However, she testified she still had monthly expenses for which she was

responsible—her car payment ($369), her car insurance ($110), her cell-phone bill ($130),

her gasoline ($400), booth rental at the salon ($250), groceries ($400), “products” ($200),

clothes ($100), her credit-card bill, and other expenses, such as occasionally eating out. Doss

testified not receiving her alimony had required her to use her credit card, borrow money,

and take money out of her IRA. She testified her new husband made less than Dace.

Doss’s new husband, West Doss, testified he paid the rent and utilities, but Doss

helped with household expenses. He also stated he helped his adult children with college

and some other expenses. He reiterated Doss had tried to get a job as a hairdresser in

Fayetteville, but booth rental was expensive, and she did not have a clientele. He said

alimony was necessary for Doss because she was falling short every month in covering her

bills.

Dace’s counsel argued Doss was now getting more than $619 in benefits from her

new husband with rent and utilities. The circuit court noted that just because Doss had

reduced her expenses did not mean she did not still have a need for alimony; however, the

circuit court also acknowledged Dace would be entitled to a reduction and some income

might need to be imputed to Doss, as she had voluntarily reduced her hours by moving to

Fayetteville.

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We hold the circuit court did not abuse its discretion in finding Doss still had a need

for alimony in the amount of $234 per month. Clearly, the circuit court took into

consideration the fact that Doss’s remarriage allowed her not to incur certain expenses, i.e.,

rent and utilities, and reduced Dace’s alimony obligation from $619 per month to $234 per

month. However, as expressed by the circuit court at the hearing, the reduction of expenses

did not automatically translate into a finding that Doss had no need for continuation of

alimony in some amount. Doss was still falling short of her monthly expenses, and Dace had

the ability to pay the reduced amount of alimony. See Valetutti v. Valetutti, 95 Ark. App. 83,

234 S.W.3d 338 (2006).

Dace also argues the circuit court used a mathematical formula to determine the

modified alimony award, in violation of the well-settled rule in Arkansas that alimony should

not be reduced to a mathematical formula because the need for flexibility outweighs the

need for relative certainty. Dace argues the circuit court erroneously used a mathematical

formula by determining what it considered to be Doss’s reasonable expenses ($1309) and

subtracting from it the $1075 imputed income to arrive at the reduced amount of $234 for

alimony.

We again cannot agree with Dace’s argument. Alimony requires each case to be

considered on its own facts and merits. The main factors are one spouse’s need and the other

spouse’s ability to pay; there are secondary factors to consider as well. No “cookie-cutter”

mathematical equation can be universally applied to all cases of alimony; each one brings its

unique facts and circumstances. This rule does not prohibit circuit courts from considering

each party’s financial needs and earning capacity in arriving at a numerical calculation of

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disparity in income; arriving at an amount of alimony will always require an analysis of

numbers and some type of addition and subtraction. In the instant case, the circuit court

clearly took into consideration what it believed Doss was capable of earning, how her

expenses had been reduced, what expenses remained, and Dace’s ability to continue to pay

some amount of alimony. No precise mathematical formula was wholesale applied to this

decision.

II. Consideration of Matters Outside the Record

Dace also argues the circuit court erred by requesting and considering evidence

outside the record. This issue is not preserved for appellate review.

At the hearing, the circuit court questioned Doss about her tax returns, stating the

numbers made no sense. Doss’s counsel asked for leave to bring the tax preparer to explain

the numbers. However, at the close of the hearing, the circuit court told Doss’s counsel to

complete an affidavit of itemized current expenses and share it with opposing counsel. The

circuit court also told Doss’s counsel to let it know if the tax preparer’s deposition would

be taken or if another hearing needed to be set. Dace’s counsel made no objection to any

of these discussions. Doss’s counsel supplied the circuit court with the requested

information; there is no indication Dace’s counsel did not receive the same information.

Furthermore, even though Dace filed a post-trial motion, he did not object in that motion

to the circuit court’s use of that information in arriving at its calculation of modified

alimony. Dace raises this issue for the first time on appeal. It is well settled that this court

will not consider arguments raised for the first time on appeal. Doughty v. Douglas, 2017

Ark. App. 445, ___ S.W.3d ___.

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III. Act 1487 of 2013

Finally, Dace argues that the modification of Arkansas Code Annotated section 9-

12-312(b) by Act 1487 of 2013 2 calls into question the validity of permanent alimony

awards. He is incorrect.

Act 1487 of 2013 amended subsection (b) of section 9-12-312, providing for

rehabilitative alimony. Dace argues that subsection (b)(1) of the statute now specifically

allows awards of rehabilitative alimony only. However, in Foster v. Foster, 2016 Ark. 456,

506 S.W.3d 808, a case concerning a 2014 divorce decree awarding rehabilitative alimony,

our supreme court held that an award of permanent alimony is authorized under Arkansas

Code Annotated section 9-12-312(a), and held that the factors to be considered for

permanent alimony are also factors to be considered for awards of rehabilitative alimony.

Furthermore, in Mason v. Mason, 2017 Ark. 225, 522 S.W.3d 123, our supreme court held

that Act 1487 did not automatically terminate alimony awards entered before August 16,

2013; Dace and Doss were divorced before that date.

Affirmed.

VIRDEN and MURPHY, JJ., agree.

Harrelson Law Firm, P.A., by: Steve Harrelson, for appellant.

Simpson & Simpson, by: James A. Simpson, Jr., and Haley Smith, for appellee.

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Act of April 22, 2013, No. 1487, 2013 Ark. Acts. 6597.
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