Berry v. Berry

Cite as 2017 Ark. App. 145
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-766
Opinion Delivered March 8, 2017
JOSEPH BERRY
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. FIFTEENTH DIVISION
[NO. 60DR-10-2467]
DANA BERRY
APPELLEE HONORABLE RICHARD MOORE,
JUDGE
AFFIRMED
N. MARK KLAPPENBACH, Judge
This appeal concerns a request to modify alimony in a postdivorce proceeding.
Appellant Joseph Berry and appellee Dana Berry were divorced by a September 2013 Pulaski
County Circuit Court decree after twenty-nine years of marriage. In the decree, Joseph was
ordered to pay Dana $4,000 per month for fifteen years to be followed by $3,000 per month
until Dana’s remarriage or the death of either party. There were substantial assets awarded
to both parties in the divorce, and their three children were no longer minors at the time of
divorce. In August 2015, Joseph filed a motion for modification of alimony, contending that
there were material changes in circumstances. Specifically, Joseph claimed that Dana had
inherited substantial assets from her mother and that Dana no longer had a need for alimony.
After a hearing conducted in March 2016, the trial court found that although Dana had
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inherited assets from her mother, this was not an unanticipated material change that justified
a termination or modification of alimony. Appellant appeals the order issued by the trial
court. We affirm.
The standard of review is well settled. We review domestic-relations cases de novo,
but we will not reverse a circuit court’s finding of fact unless it is clearly erroneous. Hunter
v. Haunert, 101 Ark. App. 93, 270 S.W.3d 339 (2007). A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court is left with a definite and firm
conviction that the circuit court has made a mistake. Id. In reviewing a circuit court’s findings
of fact, we give due deference to the court’s superior position to determine the credibility of
the witnesses and the weight to be accorded to their testimony. Brown v. Brown, 373 Ark. 333,
284 S.W.3d 17 (2008); Blalock v. Blalock, 2013 Ark. App. 659.
The law on modification of an alimony award is also well settled. 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. Ark. Code Ann. § 9-12-312(a)(7) (Repl. 2015); Herman v. Herman, 335 Ark.
36, 977 S.W.2d 209 (1998). The purpose of alimony is to rectify the frequent imbalance in
the earning power and standard of living of the parties in light of the particular facts of each
case, and the primary factors to be considered in making or changing an award of alimony are
the need of one spouse and the ability of the other spouse to pay. Herman, supra. Secondary
factors that may be considered include the financial circumstances of both parties, the couple’s
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past standard of living, the amount and nature of the parties’ current and anticipated incomes,
the extent and nature of each party’s resources and assets, the amount of income of each that
is spendable, the health condition and medical needs of each party, the duration of the
marriage, the amount of child support, and the earning ability and capacity of each party.
Johnson v. Cotton-Johnson, 88 Ark. App. 67, 194 S.W.3d 806 (2004). An award of alimony is
a matter lying within the discretion of the trial court, and it will not be reversed absent an
abuse of that discretion. Hix v. Hix, 2015 Ark. App. 199, 458 S.W.3d 743. The trial court
has the authority to make an award of alimony that is reasonable under the circumstances.
See Brave v. Brave, 2014 Ark. 175, at 10, 433 S.W.3d 227, 233. It is not our duty under our
standard of 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. See Whitworth v. Whitworth,
2009 Ark. App. 410, 319 S.W.3d 269.
With these rules to guide our decision-making, we examine the proceedings before
the trial court in greater detail. In the 2013 divorce decree, Dana was awarded the marital
home valued at $384,000, free of any encumbrances.1 Joseph was awarded the parties’
townhouse in Oxford, Mississippi, that had $32,000 in equity. The parties owned three
condominium properties that were to be sold and the proceeds divided equally, after payoff
of $344,067 still owed on those properties and the expenses related to sale. Because Joseph
lived rent-free in one of these properties and received rental income from a roommate, Joseph
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Joseph assumed the liability for a $199,722 second mortgage on the house.
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was made responsible for the costs and expenses associated with the condominiums until sold.
Regarding office properties the parties owned, each was awarded $6,871.50 in equity. The
parties evenly divided the marital accounts, each receiving $183,751.50. The vast majority
of the parties’ personal property remained in the marital home and was awarded to Dana.
Joseph retained his accounting business, Berry & Associates, which was valued over one
million dollars. Dana was awarded $105,042 as her marital portion of the business, to be paid
to Dana in monthly installments over five years.
In addressing alimony, the trial court’s order recited that Joseph had historically earned
four to five times more than Dana; that Joseph owned and controlled his own accounting firm
and made discretionary withdrawals from the business account; that Dana was an employee
at Stone Ward, which was less permanent than Joseph’s situation; that the parties enjoyed a
very comfortable lifestyle; that Joseph’s potential was for a continuation, if not an increase, in
his business income; that Joseph was ordered to assume certain debts and obligations regarding
the real property; that this was a twenty-nine-year marriage wherein Dana was primarily
responsible for the home and the family, although she assisted at times with Joseph’s business
needs; and that Dana had medical conditions that might require specialized treatment in the
future. The trial court concluded that after consideration of these factors, coupled with
Dana’s needs and Joseph’s ability to pay, alimony would be paid in the amount of $4,000 per
month for the first fifteen years, and then $3,000 per month until Dana’s remarriage or either
party’s death. There was no appeal from this order.
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In August 2015, Joseph filed his motion to terminate alimony, asserting that due to
Dana’s inheritance, she no longer had a need for alimony. In September 2015, Dana filed a
response to Joseph’s motion wherein she resisted his request, noting that the original award
of alimony was based on a host of factors. Her response recited that “[t]he alimony awarded
in this is not simply based on the Plaintiff’s need, and therefore, the recent death of the
Plaintiff’s mother and potential inheritance is not a basis for modification.”
At the March 2016 hearing, Dana testified that she was fifty-six years old2 and earned
approximately $77,905 in annual salary. She agreed that she had increased her retirement
contributions from each paycheck, noting that she had no way to save for retirement while
she was a stay-at-home mother. Dana stated that she was still paying for the parties’ son’s
college expenses;3 that she had ongoing house repair costs because it was a twenty-five-year-
old house;4 that she had a net worth of $735,000; that she was still working at Stone Ward
and had received raises; that she had no unsecured debt, but her 2010 model vehicle had
107,000 miles on it; and that she hoped to continue helping pay some of their son’s expenses
on a monthly basis because their son anticipated going to graduate school. Dana said that she
testified about her mother’s ill health back in 2013 while divorce proceedings were underway,
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The record reflects that both parties were born in 1959.
3
Dana estimated in her Affidavit of Financial Means that her annual expenses
attributable to the parties’ college-age son were $30,000.
4
She said that the house needed new carpeting, a new driveway, drainage repair, and
tree removal.
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noting “her impending passing at some point in the near future.” Dana said that she inherited
her mother’s assets, which were valued at approximately $448,000. The assets attributable to
Dana’s mother included life insurance policies, checking and savings accounts, proceeds from
the sale of her mother’s car, proceeds from the sale of her mother’s house, and proceeds from
an estate sale of her mother’s personalty (furniture, decorative items, etcetera). She stated that
she still had problems with vertigo but that it had not often prevented her from working. She
testified that she had worked at Stone Ward, a public-relations firm, for about eight years, but
it was not necessarily secure and stable income because there were sometimes changes in
clientele or the amount of work billed to clients.
Joseph testified to his belief that Dana’s net worth was $1,333,382 and that her annual
gross income was actually closer to $92,000. Joseph said that Dana’s personal financial
statement revealed the additional assets. Joseph stated that although Dana was helping to
support their son, he was set to graduate from college in May, ending that expense. Joseph
added that their son had earned about $10,000 in an internship that would go toward graduate
expenses, and he (Joseph) intended to buy their son a car upon graduation. Joseph stated that
his own net worth was $694,136, and he had significant debt, whereas Dana had no debt.
Joseph asked that alimony be terminated because “a million four is adequate for any
individual,” and Dana no longer had a need for alimony. Joseph testified that he built a new
house in Mississippi that was worth $490,000, and he had $390,000 in equity. Joseph’s
income was over $400,000 annually, according to a recent financial statement that he
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provided as an exhibit. He agreed that he had the ability to pay the alimony, but he
questioned Dana’s need, pointing to her having excess income at the end of every month with
which she was simply funding her retirement accounts.
At the conclusion of the hearing, Dana’s attorney reiterated that a multitude of factors
entered into the trial court’s decision on the original award of alimony and that the only
alleged change was her inheritance from her mother, which was not material enough to
warrant a termination of alimony. Joseph’s attorney argued that Dana’s inheritance, as well
as her voluntarily increasing her investments and retirement accounts, showed that she did not
have any unmet needs that alimony should fill.
The trial judge issued a letter opinion in April 2016. In it, the trial court noted that
Joseph’s primary contention was that Dana’s inheritance from her mother constituted the
material change in circumstances that warranted a modification of alimony. The trial court
reiterated the division of assets in the original divorce proceedings, and it restated the
substance of the parties’ testimonies at the hearing. In closing, the letter opinion recited that
[i]t is the court’s opinion, that when reviewing each of the factors originally considered
for the award of alimony in this case, that the subsequent inheritance received by the
plaintiff is not an unanticipated material change that at this time justifies the
termination or modification of the existing alimony obligation of the defendant.
A formal order was prepared to reflect the trial court’s findings. The order restated Joseph’s
contention that with the marital home and other assets Dana received in the divorce, plus her
earnings and inheritance, Dana’s financial situation had improved since the divorce, such that
she was able to pay her normal living expenses and save extra funds for retirement. The
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formal order recited that Dana took on additional expenses for the parties’ son after the
divorce was granted, increasing her expenses and lessening Joseph’s. The order then read as
follows:
The Court recognizes the value of the Plaintiff’s inheritance definitely increased the
asset valuation of the Plaintiff, and that the Defendant enjoys at least the same total net
worth, but has a much greater income and earning potential than the Plaintiff. The
Defendant enjoys a sizeable income, normally in excess of $400,000 annually, which
is approximately five times that of the Plaintiff. Plaintiff’s inheritance was
contemplated in the divorce hearing and it now merely allows her to fund a retirement
account more aggressively, which is the same opportunity the Defendant enjoyed for
a period of time. The Plaintiff’s income is still approximately the same as it was at the
time of the divorce, and she has little probability of an increase in her income. The
mere fact that the Plaintiff can currently fund a sufficient retirement account because
of the additional alimony income is clearly a lifestyle and security factor now enjoyed
and attainable by both parties. The Court also takes into consideration in denying the
Defendant’s Motion for Modification the testimony of the Plaintiff that expenses
associated with the upkeep and maintenance on her home, which were previously paid
from the Defendant’s earnings, are now being paid solely from the Plaintiff’s income
and the testimony of the Defendant that he has relocated to Mississippi and constructed
a new home with a total value exceeding that of the Plaintiff’s residence. Additionally,
while the Plaintiff received the marital residence in the divorce, the Defendant
received, not only sole ownership of his very profitable business, but his business’ office
buildings and rental investment condominiums in Arkansas and Mississippi.
Joseph filed a timely notice of appeal from the final order.
Joseph argues on appeal that the trial court clearly erred in deeming the inheritance to
be an anticipated change in circumstances that was considered at the time of the original
alimony award. He contends that there was no proof of how large or small Dana’s inheritance
might be at the time of the divorce, and furthermore, the original decree did not make note
of her potential inheritance. We disagree that Joseph has demonstrated clear error.
Alimony must be determined in light of the particular facts in each case. Hix, supra.
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Changes in circumstances are not material if they were contemplated at the time of the
original award. See Hass v. Hass, 80 Ark. App. 408, 413, 97 S.W.3d 424, 428 (2003). Dana
testified that the trial court was informed about her mother’s impending death during the
original divorce proceedings, and the trial court found that Dana’s “inheritance was
contemplated in the divorce hearing.” Here, we were provided a limited appellate record
that included only those filings entered after the decree and the transcript and exhibits from
the most recent hearing. We are, therefore, unable to discern the extent of information
gleaned about Dana’s potential inheritance at that time. The burden is on the appellant to
bring up a record sufficient to demonstrate that the trial court was in error, and where the
appellant fails to meet this burden, we have no choice but to affirm the trial court. Dodge v.
Lee, 352 Ark. 235, 237, 100 S.W.3d 707, 709 (2003). Moreover, the trial court found that
it had, in fact, contemplated Dana inheriting from her mother at the time the original alimony
award was given. This change in circumstance is not material, given that it was contemplated
at the time of the original award. Joseph’s argument holds no merit.
Next, Joseph contends that there are several factual errors made by the trial court
warranting reversal. We are not persuaded that the trial court committed reversible error.
The primary assertion is that the trial court erred by finding that the parties had the same net
worth when it should have recognized the “undisputed evidence” that Dana’s net worth was
$1,333,382 whereas Joseph’s was $694,136. We hold that the trial court did not clearly err.
It was within the trial court’s purview to determine what evidence was most credible. See
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Brown, supra. Here, the trial court apparently accepted Joseph’s claimed net worth of
$694,136 and accepted Dana’s claimed net worth of $735,000, which figures were not
markedly disparate. It is obvious that the trial court did not believe Joseph’s assertion that
Dana’s net worth was greater than $1.3 million.
Joseph also takes issue with the trial court’s finding that he has income of more than
$400,000 annually and that this is approximately five times Dana’s income. This, too, was
a matter of credibility and weight to be afforded the evidence. Joseph’s own exhibits showed
that he earned more than $400,000 annually. Although Joseph’s calculation put Dana’s annual
income at approximately $98,000, Dana’s testimony and affidavit of financial means placed
her salary in the $78,000 to $80,000 range.5 When multiplied by five, Dana’s estimated
income would be $390,000 to $400,000. This is compatible with the trial court’s findings on
this issue.
Joseph next argues that the trial court clearly erred in finding that Dana’s income
remained approximately the same since divorce and she had little probability of an increase
in her income. We disagree. In one of Joseph’s exhibits, which was a CPA’s tax summary
comparison of Dana’s salary, the figures were $78,977 in 2014 and $77,905 in 2015.
According to Dana’s affidavit of financial means, her salary for 2016 would total $83,000.
5
Joseph added into Dana’s 2015 salary the interest income, dividend income, capital
gains, and nonqualified IRA distributions, and taxable annuities. To this figure, he subtracted
alimony paid to reach his estimate of $98,000 as Dana’s annual income. Even accepting this
income figure as accurate, five times $98,000 equals $490,000.
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We discern no clear error in the trial court finding this to be relatively steady income without
marked increase.
The remainder of Joseph’s arguments appear to explain why the assets he received in
the divorce are not as valuable as the trial court believed them to be and to explain how the
trial court underestimated the value of all of Dana’s assets. Joseph also argues that Dana
under-reported her expenses on her Affidavit of Financial Means. These arguments essentially
ask our court to be a “super fact finder,” which we are not permitted to do. See Stehle v.
Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009); Dunbar v. Ark. Dep’t of Human Servs.,
2016 Ark. App. 472, 503 S.W.3d 821. Moreover, we fail to see how Dana’s under reporting
her expenses would be favorable to Joseph. 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, 496 S.W.3d 409. After a de novo review of the record in this case, we are
not left with a distinct and firm impression that the trial court made a mistake or abused its
discretion in rejecting Joseph’s request to terminate or reduce his alimony obligation.
Affirmed.
GRUBER , C.J., and GLOVER , J., agree.
LaCerra, Dickson, Hoover & Rogers, PLLC, by: Traci LaCerra, for appellant.
Coplin & Hardy, PLLC, by: Betty J. Hardy, for appellee.
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