LIVINGSTON V. LIVINGSTON , 247 Ark. 1137 ( 1970 )

ARK.] LIVINGSTON V. LIVINGSTON 1137
THOMAS DANIEL LIVINGSTON SR. V.
GOLDIE B. LIVINGSTON
5-5142 449 S. W. 2d 396Opinion delivered February 2, 1970
1. EVIDENCE—TESTIMONY OF INTERESTED PARTY—REVIEW.—Testimony
of a litigant or of a party interested in the result of the litiga-
tion is not treated as uncontradicted or undisputed.
2. DIVORCE—AWARD OF TEMPORARY ALIMONY —DISCRETION OF TRIAL
1138 LIVINGSTON V. LWINGSTON [247
COURT, ABUSE oF.—It was within the chancellor's sound discre-
tion to award temporary alimony to appellee based on her
needs, as well as attorney's fees, and the award would not be
disturbed on appeal where no abuse of discretion was shown.
3. DIVORCE—CHANGE OF CIRCUMSTANCES AS GROUND FOR SUSPENSION
OF PAYMENTS—WEIGHT & SUFFICIENCY OF EVIDENCE.—Evidence
failed to sustain appellant's contention that a change of cir-
cumstances since the 1968 order warranted the suspension of
payments to appellee and her attorney.
4. DIVORCE—TEMPORARY AWARD OF AUTOMOBILE—RIGHTS OF PARTIES.
—As between the parties no error was found in chancellor
having awarded the wife the use and benefit of the corpora-
tion's automobile during the pendency of the action since lien
holder could intervene and assert its rights at anytime.
Appeal from Pulaski Chancery Court, Third Divi-
sion, Kay L. Matthews, Chancellor ; affirmed.
Stubblefield & Matthews, for appellant.
Martin, Dodds, Kidd, Hendricks & Rycva, for ap-
pellee.
FRANK HOLT, Justice. This appeal results from the
chancellor's order requiring the appellant to pay his
wife, the appellee, $100 per week temporary alimony
and provide other benefits during the pendency of a di-
vorce action. Appellant first urges for reversal that he
has no income or property and is unable to pay any
alimony at this time. We cannot agree.
In November 1967, after approximately 18 years of
marriage, appellee instituted an action against appellant
for separate maintenance alleging, inter alia, "that he
kept company with other women." It appears this ac-
tion was dormant until October 1968 when appellee
amended her complaint, asked for a divorce and assert-
ed that appellant and appellee "through their joint ef-
forts own an automobile business, together with other
properties and interests and that the plaintiff [appel-
lee] is unemployed and unable to support herself, and
that she should be awarded alimony, her interest in and
to all properties owned by the parties." Upon a hear-
ARK.] LIVINGSTON V. LIVINGSTON 1139
ing ill December 1968, the chancellor ordered, inter alia,
that the appellant pay to the appellee $100 per week
temporary maintenance and awarded her the use of an
automobile. About six months later, or in July 1969, the
appellant filed a motion asserting that his only source
of income was derived from Dan Livingston Auto
Sales, Inc. and that because of conditions beyond his
control earlier in this same month the corporation had
been forced to go out of business which prevented him
from receiving any salary from the corijoration, that he
was endeavoring to secure employment as an automobile
salesman and that be had no funds or assets with which
to pay any maintenance to the appellee.
According to appellant and his regular accountant,
a financial statement of . appellant's corporation reflect-
ed the corporation's current liabilities exceeded the as-
sets by approximately $19,000 on the day before the
hearing. The accountant testified that he made the fi-
nancial statement from the regular books and records
kept by appellant and his bookkeeper. It was not an in-
dependently certified statement. According to the ac-
countant, ordinarily the assets and liabilities of any busi-
ness change every day. Appellant testified that he bad
put into the corporation all of his cash assets and also
$5,000 he had borrowed from a bank; that he had no per-
sonal assets whatsoever and he felt personally respon-
sible for paying the outstanding bills owed hy his cor-
poration. According to the financial statement, appel-
lant's corporation has approximately 9427,000 in a deal-
er's reserve account held by a local bank to secure the
payment of approximately $460,000 which represents
the installment contracts purchased by the bank 'with
recourse. No part of this reserve, however, can be- with-
drawn by the appellant for three years. The potential
loss on these installment contracts is estimated at $20,-
000 on the financial statement. However, a bank official
said it was conceivable that most of this reserve might
be returned. The appellant testified that be had an offer
of employment, beginning the next day, with one of the
1140 LIVINGSTON V. LIVINGSTON [247
largest local automobile dealers which will yield an esti-
mated income of $400 per month. His personal indebted-
ness is $131 he owes on interest for late payment on his
and appellee's joint federal and state income taxes
totaling $1,299.17. It is admitted that appellant's book-
keeper and her two children, ages 9 and 11, are living in
the same house with appellant. There was evidence that
appellant and his bookkeeper were often observed to-
gether on weekends at a nearby local lake resort. Ap-
pellant c'aims his 19-year-old son lives with him and is
dependent upon him. There was testimony, however that
his son was married on the date of the hearing. Appel-
lant's position is that he was having to liquidate his
business because the prime interest rate had increased
to such an eitent that the bank would no longer finance
his installment sales contracts..Although a bank official
testified with reference to the dealer's reserve account,
there was no evidence elicited that the bank had refused
to continue lending money to the appellant's corpora-
tion. We have often said that the testimony of a litigant
or of a party interested in the result of the litigation is
not treated as uncontradicted or undisputed. Lewis v.
Lewis, 222 Ark. 743, 262 S. W. 2d 456 (1953).
The appellant next asserts that the appellee wife is
not in need of support from him at this time. During
the pendency of this action it appears that the parties
sold their house and each received $5,000.00. At the time
of the hearing appellee had depleted her share to $3,-
800.00. On the date of the trial appellant paid her $600
for arrearage. Appellant argues that the award of tem-
porary alimony is based upon the existence of necessity
during the pendency of a divorce proceeding. Tracy v.
Tracy, 184 Ark. 832, 43 S. W. 2d 539 (1931).
Appellee is 43 years of age with an eighth-grade
education. During their separation she had tried to work
and after a month she was unable to continue working
because of her health. She has an arrested case of tuber-
culosis. She is under the care and treatment of doctors
ARK.] LIVINGSTON V. LIVINGSTON 1141
for nervousness and extreme exhaustion. There was evi-
dence from her doctor that she was unable to work at
the time of the hearing. The appellant admitted that he
had §pent more than $100 per week on appellee before
their separation. In these circumstances we cannot agree
with appellant that the chancellor abused his discretion
in awarding temporary alimony based upon appellee's
needs. It is well settled that it is within the sound dis-
cretion of the chancellor to award temporary alimony,
costs and attorney's fees and the award will not be dis-
turbed on appeal unless there is abuse of discretion.
Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S. W. 2d 246(1943).
The appellant also contends that the change of cir-
cumstances since the December 1968 order warrants the
suspension of payments to appellee and $100 to her at-
torney. The appellant reviews the evidence which we
have previously discussed. We find no abuse of discre-
tion by the chancellor and, therefore, no merit in this
contention.
The appellant next asserts that his wife is not en-
titled to the use of the corporation's automobile as was
ordered by the chancellor. It appears a local bank holds
a delinquent lien on this car. In, the circumstances it is
for the bank to assert its rights. As between the parties
we find no error in the court awarding appellee the use
and benefit of the automobile for the purpose of pro-
viding her with adequate transportation during the
pendency of this divorce action.
Affirmed.