Ary v. Ary

Cite as 2013 Ark. App. 677
ARKANSAS COURT OF APPEALS
DIVISION II
No.CV-13-591
Opinion Delivered November 13, 2013
ROYCE ARY APPEAL FROM THE SALINE
APPELLANT COUNTY CIRCUIT COURT
[No. 63DR-12-383-1]
V. HONORABLE BOBBY D.
McCALLISTER, JUDGE
SONYA ARY
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
Appellant Royce Ary appeals from the January 7, 2013 Supplemental Order to Decree
of Divorce entered by the Saline County Circuit Court, ordering Royce to pay alimony to
appellee Sonya Ary. Royce’s appeal challenges the trial court’s alimony award in a two-point
attack. He argues that the trial court erred as a matter of law when it granted Sonya alimony after
it entered the divorce decree. He also challenges the trial court’s award of alimony, including the
amount awarded. We affirm.
Sonya and Royce were married in 1993. On April 2, 2012, Sonya filed a complaint for
divorce, seeking custody of the parties’ two minor children, L.A.1 (DOB 3-5-95) and L.A.2
(DOB 4-25-01), child support, a division of property, and alimony. A temporary hearing was
held on May 8, 2012. At the hearing, the evidence revealed that Royce was a veteran with a
seventy-five-percent disability rating, for which he received a monthly disability payment of
Cite as 2013 Ark. App. 677
$1512. Royce was also employed with the federal government with net monthly earnings of
approximately $3200.
During the majority of their marriage, Sonya was a stay-at-home mom; however, more
recently she began working as a receptionist earning approximately $2100 per month. She also
served as an “on-call” bartender for the Peabody hotel. Testimony demonstrated that Sonya and
the children were living in the marital home, that the monthly mortgage payment for the home
was approximately $1200, and that Royce continued to make the mortgage payment after the
parties separated. He also continued to make the monthly payment on L.A.1’s vehicle. Both
parties testified about significant marital debt, which included the mortgage, three vehicles, a
travel trailer, a personal loan, several credit-card balances, and a loan on a retirement account.
At the conclusion of the temporary hearing, the trial court entered an order, dated May 22, 2012,
that among other things, awarded Sonya primary physical custody of the children and Royce
visitation; awarded Sonya child support in the amount of approximately $445 biweekly; ordered
Royce to continue to make the mortgage payment and L.A.1’s car payment; and ordered Royce
to pay for health insurance for the children.
The parties’ divorce hearing was held on August 7, 2012. At this hearing, there was
testimony that Royce had approximately $40,000 in his retirement account, while Sonya had less
than $80 in hers. There was evidence that the parties’ home appraised at $156,000, but the
mortgage balance was almost $155,000. The evidence revealed that both parties were driving
vehicles that had little-to-no equity in them. And the parties reported that they were unable to
agree on a property settlement.
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Among other issues, Sonya testified that she was in need of alimony because her monthly
expenses exceeded her monthly income by over $1200. She stated that her prior work history
included working at the mall, at her church, as a bartender, and as a receptionist. It was her
opinion that Royce had a superior earning capacity because he had a military background and
was a veteran, currently held a federal job, was more educated, and learned a trade. Royce
testified that he could not afford to pay Sonya alimony. He said that since the temporary hearing,
when he was ordered to pay child support, the mortgage, L.A.1’s car payment, health insurance
for the children, his debts, and his living expense, he had amassed credit-card debt.
At the conclusion of the divorce hearing, the trial court granted Sonya a divorce, awarded
Sonya custody of the children and child support, and awarded Royce visitation. The court told
the parties they had thirty days to negotiate a property settlement, and if they failed, the court
would order the sale of their property. The court then stated:
All issues with regard to alimony, attorney’s fees and disbursements [sic] of those
debts will be made upon the sale or settlement. I’m holding those issues in abeyance.
The specific property and indebtedness with which the parties leave a marriage
is a factor that a Court can utilize in determining alimony and attorney’s fees, and I will
be using all of that information in making that ruling.
Several months later on November 14, 2012, the trial court entered the divorce decree
that set forth the oral findings of the trial court and added the amount of monthly child support
to be paid by Royce—approximately $1000. In the decree, the trial court also stated that the
parties had executed a property settlement agreement (PSA) that provided for the disposition
of the parties’ property, debts, insurance, and other matters. Relevant to this appeal, the parties’
PSA provided that Royce would receive the marital home and the debt associated with it; each
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party would receive their own vehicle and the debt associated with it; Royce would receive
L.A.1’s vehicle and the debt associated with it; and Sonya would receive Royce’s retirement
account. The final paragraph of the PSA provided:
At the August 7, 2012 final divorce hearing the Court ruled that [Sonya’s] request
for alimony and attorney’s fees would be held in abeyance, pending a settlement
agreement or a commissioner’s sale if a settlement agreement were not reached. Because
the parties are not able to agree as to alimony and attorney’s fees, the parties agree that
the Court should make a finding as to a ruling on [Sonya’s] request for alimony and
attorney’s fees.
A third hearing—limited to the issues of alimony and attorney’s fees—was held on
December 12, 2012. There, Sonya testified that she received Royce’s retirement account as part
of their PSA. In return, Royce received all of the parties’ marital property, excluding some
household items. Sonya stated that she was receiving child support for the children, but that
support for L.A.1 would terminate in five months. She said that her monthly income was now
$2200 and that she had incurred over $9000 in attorney’s fees as a result of the divorce. She
added that she had assumed responsibility for the children’s medical insurance. Royce testified
once again that he did not have any disposable income to pay alimony to Sonya after paying his
debts, expenses, and child support. Later that day, the trial court issued a letter opinion:
After reviewing the evidence and all other matters in this case; and based upon
the factors required to be considered under the laws of the State of Arkansas, the Court
finds that [Royce] should be required to pay alimony to [Sonya] in the sum of $750.00
per month for five (5) years and at the conclusion of five years, reduced to $500.00 per
month for a period of five (5) years. This alimony payment would be terminated upon
death of [Royce] or re-marriage of [Sonya] or other change of circumstances allowed by
law. I am denying [Sonya’s] request for attorney’s fees.
On January 13, 2013, the trial court entered a supplemental order to the decree of divorce
restating the findings set forth in its letter opinion. It is from this order that Royce appeals.
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One of Royce’s points on appeal is that the trial court erred as a matter of law when it
granted Sonya alimony after it entered the divorce decree. For support he cites Arkansas Code
Annotated section 9-12-312(a)(1) (Repl. 2009), which states: “[w]hen a decree is entered, the
court shall make orders concerning the alimony of the wife . . . and the care of the children, if
there are any, as are reasonable from the circumstances of the parties and the nature of the case.”
Royce also cites two cases—Grady v. Grady, 295 Ark. 94, 99, 747 S.W.2d 77, 80 (1988), and Ford
v. Ford, 272 Ark. 506, 517, 616 S.W.2d 3, 9 (1981), which he argues stand for the propositions
that section 9-12-312 mandates that alimony decisions be made when the divorce decree is
entered and that a trial court does not have the power to retain jurisdiction or to treat alimony
as a matter “reserved for further consideration.”
However, we cannot reach the merits of this argument because Royce did not raise it
below. In Edwards v. Edwards, 2009 Ark. 580, at 7–8, 357 S.W.3d 445, 449–50, our supreme court
held that the trial court’s authority to reserve jurisdiction and defer an alimony decision after a
divorce decree has been entered, under section 9-12-312, is not an issue of subject-matter
jurisdiction. Therefore, the issue must be raised to the trial court in order to preserve the
argument for appeal. Edwards, 2009 Ark. 580, at 8, 357 S.W.3d at 450. This holding applies to
the case at bar. Royce did not raise the issue of the trial court’s authority under section 9-12-312
to the trial court. Therefore, Royce failed to preserve the argument for appeal.
Royce also challenges the award of alimony, including the amount of the alimony
awarded by the trial court. A trial court’s decision regarding alimony is a matter that lies within
the court’s sound discretion and will not be reversed absent an abuse of that discretion. Spears
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v. Spears, 2013 Ark. App. 535, at 5. An abuse of discretion means discretion improvidently
exercised, i.e., exercised thoughtlessly and without due consideration. Elliott v. Elliott, 2012 Ark.
App. 290, at 4, ___ S.W.3d ___, ___.
The purpose of alimony is to rectify the economic imbalance in the earning power and
standard of living of the divorcing parties, in light of the particular facts of each case. Spears,
2013 Ark. App. 535, at 5–6. The primary factors to consider are the financial need of one spouse
and the other spouse’s ability to pay. Id. at 6. Other factors include the financial circumstances
of both parties; the couple’s past standard of living; the value of jointly owned property; the
amount and nature of the income, both current and anticipated, of both parties; the extent and
nature of the resources and assets of each party; the amount of each party’s spendable income;
the earning ability and capacity of both parties; the disposition of the homestead or jointly
owned property; the condition of health and medical needs of the parties; and the duration of
the marriage. Id. If alimony is awarded, it should be set in an amount that is reasonable under
the circumstances. Id.
Royce argues on appeal that the trial court abused its discretion in granting Sonya
alimony, claiming that the court failed to properly consider the primary and secondary factors
for determining alimony. We disagree. As set forth above, the primary factors to be considered
in awarding alimony are the needs of one party and the ability of the other party to pay. Spears,
2013 Ark. App. 535, at 6. The evidence presented demonstrated that Sonya has a need for
income. She was a housewife for the majority of the parties’ eighteen-year marriage. There is no
evidence of Sonya’s education level, and she has had no vocational training or career. Evidence
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showed that Sonya’s monthly expenses exceeded her monthly income. Therefore, she has the
need for income. Additionally, the evidence demonstrated that Royce has the ability to pay. He
has a military background, is a veteran, has more education than Sonya, and has learned a trade.
He is seventy-five-percent disabled, which entitles him to monthly disability, and he is gainfully
employed with the federal government.
Evidence of the secondary factors further supports the trial court’s alimony award. The
parties were married for eighteen years, during which Royce provided primary financial support
for the family. There was evidence that during their marriage the parties enjoyed a “comfortable”
standard of living, but it was shown that significant debt was accumulated as a result. As part of
the dissolution of the marriage, both parties assumed a portion of the marital debt. And while
Royce assumed a larger portion of the marital debt, he also received all of the marital assets,
which include the home, two vehicles (his and L.A.1’s), firearms, a travel trailer, and two ATVs.
Despite Royce’s disability, he has a history of employment. Sonya’s relatively good health is
support for the trial court’s limited period of alimony. For all of these reasons, we hold that the
award of alimony and the amount of alimony awarded by the trial court was reasonable under
the circumstances. Russell v. Russell, 2013 Ark. 372, at 9, ___ S.W.3d ___, ___ (holding that it is
not an abuse of discretion to make an award of alimony that is reasonable under the
circumstances). Therefore, we hold that the trial court did not abuse its discretion in awarding
alimony to Sonya.
Royce maintains that reversal is required because (1) the trial court abused its discretion
in awarding alimony to Sonya because there was an unequal distribution of property (he assumed
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the marital debt and she received his $40,000 retirement account); (2) the court considered his
fault in the divorce as part of the alimony decision; (3) after their separation Sonya’s expenses
were not reasonable because she was living a lifestyle beyond her means;1 and (4) after their
separation he had to use credit cards to pay child support, the mortgage on the house, and his
monthly expenses.
However, the record reflects that the parties agreed to the distribution of the marital
assets and debt. Further, nothing in the record indicates that the trial court considered Royce’s
fault in awarding alimony. As for Royce’s remaining assertions, we note that the appropriateness
of an alimony award is determined in light of the facts in each case, and the trial court is in the
best position to view the needs of the parties in connection with an alimony award. Stuart v.
Stuart, 2012 Ark. App. 458, at 9, ___ S.W.3d ___, ___. The trial court in this case found that
Sonya was entitled to alimony. In our review, we hold that the trial court applied the correct legal
standard, found facts that were supported by the evidence presented, and did not abuse its
discretion in making the award. Accordingly, we affirm.
Affirmed.
WYNNE and GLOVER, JJ., agree.
Tyson K. Spradlin, for appellant.
1
For support, Royce cites evidence that Sonya took two vacations and was spending
$230 per month at the hair and nail salon.
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