Jez v. Jez , 2016 Ark. App. LEXIS 626 ( 2016 )

Cite as 2016 Ark. App. 594
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-191
Opinion Delivered December 7, 2016
JAMES JEZ APPEAL FROM THE PULASKI COUNTY
APPELLANT CIRCUIT COURT, THIRD DIVISION
[NO. 60DR-14-3475]
V.
HONORABLE CATHLEEN V.
COMPTON, JUDGE
ANGEL JEZ
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
Appellant James “Jimmy” Jez appeals the Pulaski County Circuit Court’s October 13,
2015 divorce decree. Jimmy argues that the circuit court erred in awarding appellee Angel Jez
half of his one-third interest in the Jez Family Limited Partnership, in calculating child support,
and in awarding Angel alimony. We affirm.
The parties were married on September 25, 1995, and they had a son, J.J., in 2000. The
parties separated on July 19, 2014. On August 8, 2014, Angel filed a complaint for divorce,
and on August 14, 2014, Jimmy filed an answer and a counterclaim for divorce. 1
After multiple hearings, a divorce decree was entered by the circuit court on October
13, 2015. Relevant to this appeal, the decree granted Angel a divorce based on general
indignities, awarded her custody of J.J., ordered Jimmy to pay child support of $316 biweekly,
1Jimmy’s counterclaim was dismissed by an order entered on July 7, 2015.
Cite as 2016 Ark. App. 594
ordered him to pay Angel $200 per month in alimony, and awarded Angel a one-half interest
of Jimmy’s interest in his family’s partnership. Jimmy filed a notice of appeal from this order
on October 20, 2015. 2
Jimmy’s first point on appeal is that the circuit court clearly erred in awarding Angel a
one-half share of his interest in the Jez Family partnership. We review division-of-marital-
property cases de novo, but the circuit court’s findings of fact are affirmed unless they are
clearly erroneous or against the preponderance of the evidence. Sanders v. Passmore, 2016 Ark.
App. 370, at 7. A finding of fact is clearly erroneous when the reviewing court is left with a
definite and firm conviction that a mistake has been committed; in reviewing the circuit court’s
findings, the reviewing court gives due deference to the circuit court’s superior position to
determine the credibility of the witnesses and the weight to be accorded to each witness’s
testimony. Id.
Jimmy argues that the circuit court erred in finding that the partnership was marital
property and dividing it equally. He contends that his testimony and that of his father reflect
that his interest in the partnership was a gift; therefore, he claims it is his separate, nonmarital
property and, pursuant to Arkansas Code Annotated section 9-12-315, should be returned to
him.
Arkansas Code Annotated section 9-12-315 (Repl. 2015) governs the division of marital
property. Section 9-12-315(a)(1)(A) provides that marital property is to be divided equally
2Thereafter, both parties filed motions for ruling, reconsideration, and relief. On
November 19, 2015, the circuit court entered an order in response to the motions. Jimmy did
not amend his notice of appeal following entry of the November 19, 2015 order, but none of
his points on appeal challenge the new findings in that order.
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unless it would be inequitable to do so. If the property is divided unequally, then the court
must give reasons for its division in the order. Ark. Code Ann. § 9-12-315(a)(1)(B). The code
also provides a list of factors the court may consider when choosing unequal division. Ark.
Code Ann. § 9-12-315(a)(1)(A)(i)–(ix). Section 9-12-315(b)(1) excludes from the definition of
marital property “property acquired . . . by gift.” Jimmy had the burden of proving that his
partnership interest was his separate, nonmarital property. Johnson v. Johnson, 2011 Ark. App.
276, at 8, 378 S.W.3d 889, 895.
Here, the decree reflects that Jimmy’s partnership interest was marital property (not a
gift), which the court divided equally pursuant to section 9-12-315(a)(1)(A). This was not
clearly erroneous. The partnership agreement reveals that it was created on May 22, 1996,
during the parties’ marriage. The agreement further reflects that during the marriage Jimmy
contributed $11,132.21 as an initial contribution to the partnership in return for a 33% interest
in the partnership. Thus, the evidence demonstrates that he used marital funds to invest in the
partnership. Jimmy offered no evidence to the contrary. Finally, there was testimony that
Angel and Jimmy paid taxes on the partnership during their marriage. We acknowledge the
testimony of Jimmy and his father that Jimmy’s interest in the partnership was a gift; however,
in reviewing a circuit court’s findings, we give due deference to the court’s superior position
to determine the credibility of witnesses and the weight to be accorded to their testimony.
Myrick v. Myrick, 339 Ark. 1, 9, 2 S.W.3d 60, 65 (1999). Therefore, based on our de novo
review, we hold that the court was not clearly erroneous in finding that Jimmy failed to meet
his burden of proving that his interest in the family partnership was a gift. Accordingly, we
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affirm the trial court’s finding that the partnership was marital property and equally distributing
it.
Jimmy also argues on appeal that the circuit court erred in calculating his income for
child-support purposes. He claims that the evidence fails to support the finding that his
monthly “take-home pay” is $2,692.31.
Our standard of review for an appeal from a child-support order is de novo on the
record, and we will not reverse a finding of fact by the circuit court unless it is clearly
erroneous. Taku v. Hausman, 2014 Ark. App. 615, at 4. In reviewing a circuit court’s findings,
we give due deference to that court’s superior position to determine the credibility of the
witnesses and the weight to be accorded to their testimony. Id.
Here, the circuit court did not clearly err in awarding child support of $316 biweekly.
While the decree stated that the child-support award was based on Jimmy’s monthly “take-
home” income of $2,692.31, the support award was actually calculated based on his net income
of $2,113.50, which was the income figure the parties stipulated to at the onset of the final
hearing. The parties not only stipulated to the $2,113.50 income figure, but they further
stipulated that his child-support obligation, based on that income, was $316 biweekly. It was
Jimmy’s counsel who articulated the stipulation and made the calculations at the hearing. There
was no evidence or argument on the matter of child support thereafter. Accordingly, we hold
that the circuit court did not clearly err in relying on the parties’ income and child-support
stipulation and, accordingly, in finding that Jimmy was obligated to pay child support of $316
biweekly based on that income. Taku, 2014 Ark. App. 615, at 5. Accordingly, we affirm on
this point.
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Jimmy’s final argument on appeal is that the circuit court abused its discretion in
awarding Angel alimony of $200 per month. He argues that there is no economic imbalance
in the earning power or standard of living to justify the award; Angel’s financial condition is
better than his when child support is deducted from his income and added to hers; and he has
been ordered to pay a larger portion of the parties’ substantial debt.
An award of alimony is a question that addresses itself to the sound discretion of the
circuit court. Kuchmas v. Kuchmas, 368 Ark. 43, 45, 243 S.W.3d 270, 271 (2006). The supreme
court has held that the circuit court can make an award of alimony that is reasonable under
the circumstances. Id., 243 S.W.3d at 271. The purpose of alimony is to rectify economic
imbalances in earning power and standard of living in light of the particular facts in each case.
Id., 243 S.W.3d at 271. The primary factors that a court should consider in determining
whether to award alimony are the financial need of one spouse and the other spouse’s ability
to pay. Id., 243 S.W.3d at 271. The circuit court should also consider the following secondary
factors: (1) the financial circumstances of both parties; (2) the amount and nature of the
income, both current and anticipated, of both parties; (3) the extent and nature of the resources
and assets of each of the parties; (4) the earning ability and capacity of both parties. Id. at 45–
46, 243 S.W.3d at 271–72. The amount of alimony should not be reduced to a mathematical
formula because the need for flexibility outweighs the need for relative certainty. Id. at 46, 243
S.W.3d at 272. An award of alimony will not be reversed unless there is an abuse of that
discretion. Jones v. Jones, 2014 Ark. App. 614, at 3, 447 S.W.3d 599, 601.
The circuit court took into consideration many factors in reaching its conclusion to
award alimony—Angel’s need and Jimmy’s ability to pay, the substantial debt owed by the
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parties, the lack of assets of the parties, and their twenty-year marriage. The court considered
the parties’ work history and future earning capacity. Jimmy worked throughout the marriage
and was currently working at a job where he could earn bonuses. Angel’s work history was
limited to thirteen years of the marriage. And while she was currently working, her hours had
been reduced due to her medical condition, she had been demoted, and her pay had been
reduced.
The appropriateness of an alimony award is determined in light of the facts in each
case, and the circuit court is in the best position to view the needs of the parties in connection
with an alimony award. Bennett v. Bennett, 2016 Ark. App. 308, at 14, 496 S.W.3d 409, 417. We
hold that the circuit court in this case applied the correct legal standard, found facts that were
supported by the evidence presented, and did not abuse its discretion in awarding alimony in
the amount it did to Angel. 3 We affirm the alimony award.
Affirmed.
ABRAMSON and BROWN, JJ., agree.
Alexander Law Firm, by: Hubert W. Alexander, for appellant.
Hilburn, Calhoon, Harlper, Pruniski & Calhoun, Ltd., by: Sam Hilburn and Erin W.
Lewis, for appellee.
3We reject Jimmy’s argument that the circuit court awarded Angel alimony to punish
him. There is no indication in the decree that the alimony award was an impermissible
punishment of Jimmy for his adultery. In fact, the circuit court, in its decree, expressly stated
that the fault of either party is not to be considered in the distribution of property and in
setting alimony. In making the award of alimony, the circuit court considered both parties’
testimony regarding their income, assets, work history, standard of living, living arrangements,
transportation needs, and future ability to earn money. Bennett, 2016 Ark. App. 308, at 12–13,
496 S.W.3d at 417.
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