Smith v. Smith , 2016 Ark. App. LEXIS 598 ( 2016 )

Cite as 2016 Ark. App. 571
ARKANSAS COURT OF APPEALS
DIVISION III
CV-16-170
No.
Opinion Delivered NOVEMBER 30, 2016
DON A. SMITH
APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT,
GREENWOOD DISTRICT
V. [NO. 66DR-15-138]
GRETCHEN MARIE SMITH HONORABLE ANNIE HENDRICKS,
JUDGE
APPELLEE
AFFIRMED
DAVID M. GLOVER, Judge
Appellant Don Smith appeals the Sebastian County Circuit Court’s denial of his request
for alimony from appellee Gretchen Smith. We affirm.
Standard of Review
The purpose of alimony is to rectify the economic imbalances in earning power and
standard of living in light of the particular facts of each case. Kuchmas v. Kuchmas, 368 Ark. 43,
243 S.W.3d 270 (2006). The primary factors a court should consider in awarding alimony are
the financial need of one spouse and the other spouse’s ability to pay. Gilliam v. Gilliam, 2010
Ark. App. 137, 374 S.W.3d 108. The circuit court may also consider other factors, including
the couple’s past standard of living, the earning capacity of each spouse, the resources and assets
of each party, and the duration of the marriage. Johnson v. Cotton-Johnson, 88 Ark. App. 67, 194
S.W.3d 806 (2004). We adhere to no mathematical formula or bright-line rule in awarding
alimony. Valetutti v. Valetutti, 95 Ark. App. 83, 234 S.W.3d 338 (2006). The circuit court may
Cite as 2016 Ark. App. 571
make an award of alimony that is reasonable under the circumstances. Kuchmas, supra. The
decision whether to award alimony lies within the sound discretion of the circuit court, and
we will not reverse absent an abuse of that discretion. Cole v. Cole, 89 Ark. App. 134, 201
S.W.3d 21 (2005). An abuse of discretion means discretion improvidently exercised, i.e.,
exercised thoughtlessly and without due consideration. Foster v. Foster, 2015 Ark. App. 530,
472 S.W.3d 151.
Facts
Don and Gretchen married in November 1976 and separated in April 2015. At the
divorce hearing in November 2015, Gretchen, who was fifty-eight at the time, testified her
take-home pay every two weeks was $1206, and if she added her retirement contributions
back in, she would take home $1400 every two weeks. She explained that while she was
currently living with her mother, she hoped to move out soon and anticipated a total of $2669
in monthly expenses after she moved into her own home. According to Gretchen, although
Don was receiving Social Security disability benefits, he still fished in tournaments on a regular
basis and performed yard work at the marital home. Gretchen did not dispute Don was
disabled—she explained that earlier in their marriage, Don had been declared disabled, but he
had returned to work against doctor’s advice and worked until he could work no longer; he
had been declared disabled for a second time in 2010. Nevertheless, Gretchen believed Don
was able to work on a part-time basis, pointing out he had received money from doing odd
jobs such as consulting for remodeling or doing yard work for other people. Gretchen
admitted she was currently still paying Don’s gas, electricity, water, and phone bills, but she
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countered that when she moved out of her mother’s house, she would have those expenses
to pay for herself and could not afford also to pay Don alimony.
Jason Smith, the couple’s adult son, testified he had been on fishing trips with his father
after Don had been determined to be disabled, and they had fished for a full day, with Don
loading the fishing equipment, taking the boat off the trailer, and guiding the boat while they
fished. Jason stated he had also seen his father mow and weed eat the yard and had never
witnessed being limited in his ability to do things. He also admitted he and his father do not
get along.
Don testified he has been disabled since 2010 and had actually drawn Social Security
disability benefits in 1981 or 1982 after having back and shoulder problems, but had returned
to work against his doctor’s advice. Don recounted his many health problems, including four
additional ruptured discs, spondylolisthesis of the spine, depression, anxiety, high blood
pressure, vascular dementia, shoulder and knee problems, Type II diabetes, and a hernia in his
stomach. He stated he had undergone two surgeries that year and was scheduled for a third
surgery.
Don explained his monthly net income from Social Security disability benefits was
$1115, and while the house he was currently living in was free of debt, his monthly expenses
still totaled $1820. Don acknowledged that while he had been on Gretchen’s health insurance
during their marriage, he would no longer be able to remain on her insurance after the
divorce. Don also confirmed he had Medicare Parts A and B, and $104 per month was
withheld from his disability check for this insurance, but he testified he would have to pick
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up coverage under Medicare Parts C and D for his hospital and medical expenses, which he
estimated would cost an additional $150–250 per month. Don testified his medication was not
covered under Medicare, and the best plan he had been able to find cost $9839 per year for
his medication. Don explained he joined his fishing clubs as a way to deal with depression and
anxiety, but he had been having trouble with his back and, at times, he was unable to fish and
merely had to sit and watch. He also testified he had a lot of pain when he mowed the yard.
Don expressed an interest in retaining the marital home and offsetting Gretchen’s interest in
the house by foregoing his interest in her retirement or 401(k).
Don’s friend, Michael Hamby, a local Social Security disability attorney, testified Don’s
physical condition had deteriorated significantly since he met him, and there had also been
lapses in Don’s mental acuity and in his ability to get along with others since he had suffered
a stroke. Hamby expressed an opinion that it was unusual for a person to be approved for
Social Security disability benefits as quickly as Don had been approved. He explained
Medicare was provided with Social Security disability benefits, and Don would be permitted
to work to some extent while receiving Social Security disability benefits; however, he did not
believe Don could engage in activities considered to be duties in a workplace.
The decree of divorce was filed on December 9, 2015. The circuit court, after
considering “the health and financial abilities of the parties and having considered all of the
evidence adduced,” awarded the marital home, valued at $180,000, to Don as his sole and
separate property, as well as his 2015 Chevrolet truck, the lawn mower and tools, and all other
items in his possession other than those specifically awarded to Gretchen; and awarded
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Gretchen her ArkBest401(k), valued at $196,862.50, her 2008 Toyota Highlander, and all
other items remaining in her possession except for items specifically awarded to Don. The
parties’ bass boat was ordered sold and the proceeds divided equally. Gretchen’s pension,
valued at $118,239.42, was ordered to be divided equally. The parties had earlier divided
equally a savings account valued at $19,000. The circuit court then found, after considering
the parties’ financial conditions, health, and income, that Don’s request for alimony should be
denied.
Denial of Alimony
Don argues the trial court erred in denying his request for alimony. As enumerated
above, the primary factors to consider in awarding alimony are the financial need of one
spouse and the other spouse’s ability to pay. Gilliam, supra. Don sets forth his expenses are
$700 per month in excess of his income which does not include the fact he will be required
to secure additional medical insurance after the divorce. He contends he has the need for
alimony, and Gretchen has the ability to pay. In support of this contention, he cites Mearns
v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997), a case in which our court reversed the
denial of alimony to the husband and ordered the trial court to set an appropriate amount of
alimony. Don contends the facts of Mearns are “very similar” to the present case. We do not
agree.
In Mearns, the parties had been married for twenty years; for the first fifteen years, the
husband was the primary breadwinner, and the wife stayed at home to raise their two children;
when the children reached school age, the wife began to work part time. The husband lost
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his job when the plant where he worked closed and, instead of relocating, he chose to remain
in Arkansas; he invested all of his retirement, savings, and stock in an auto-parts business and
also purchased a chicken farm. The wife began working full time for the United States Postal
Service, and the couple decided to sell the auto-parts business and apply the proceeds to the
debt on the chicken farm. Chicken farming proved to be an unreliable source of income, and
the wife became the primary breadwinner. The husband also began experiencing some health
problems at this time.
In reversing the denial of alimony, our court found: the husband was unemployed,
because the chicken farm had been ordered to be sold, while the wife had a secure job paying
more than $40,000 per year; the wife was the beneficiary of a trust fund from her parents;
while the couple’s assets were not exceptional, the proceeds from one of the most valuable
assets, a 1961 Corvette, had been divided $8000/$2000 in favor of the wife; the husband was
fifty-seven, had health problems, was unemployed, and did not have a college degree or
professional license; conversely, the wife was forty-three, had a secure income, and retained
her specially adapted mail-delivery vehicle, while the husband’s source of income, the chicken
farm, had been ordered sold. The Mearns court also considered the length of the marriage,
which is the only substantially similar fact to the present case.
While Don is unable to work, he is receiving Social Security disability benefits; and
though he has multiple health problems, fifty-eight-year-old Gretchen also takes medication
for mitro-valve prolapse, has borderline glaucoma, and takes an antidepressant. The parties’
assets were divided relatively equally. Gretchen is making more money than Don, but she is
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also currently living with her mother. Don was awarded the marital home, which had no debt
associated with it. Gretchen testified she hoped to move out of her mother’s house soon and
would incur additional expenses, such as rent and utilities, with that move. Gretchen’s
monthly expenses, by her testimony, total $2669. There was testimony regarding Don’s ability
to perform some types of work for remuneration and, while Don disputed this testimony, the
circuit court was not obliged to believe his version of events.
We cannot find that the circuit court abused its discretion in denying Don’s request for
alimony. While Don has a need for alimony, the evidence bears out the fact Gretchen does
not have the ability to pay alimony if she completes her intended move out of her mother’s
house. Furthermore, there was evidence Don has the ability to earn additional money over
and above his Social Security disability income. We affirm the denial of Don’s request for
alimony.
Affirmed.
VIRDEN and WHITEAKER, JJ., agree.
Michael Hamby, P.A., by: Michael Hamby, for appellant.
Gean, Gean & Gean, Attorneys at Law, by: Roy Gean III, for appellee.
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