Dace v. Doss , 2017 Ark. App. LEXIS 603 ( 2017 )

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.
2
Act of April 22, 2013, No. 1487, 2013 Ark. Acts. 6597.
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