Mearns v. Mearns

Monid B. MEARNS v. Joyce C. MEARNS

CA 96-683                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                      Divisions III and IV
                 Opinion delivered June 4, 1997


1.   Divorce -- child support -- amount lies within sound discretion of
     chancellor. -- Ordinarily, the amount of child support lies
     within the sound discretion of the chancellor, and the
     chancellor's findings will not be disturbed on appeal in the
     absence of a showing of an abuse of discretion.

2.   Divorce -- child support -- reference to family support chart is mandatory.
     -- While other factors may be considered in determining
     support, reference to the family support chart is mandatory.

3.   Divorce -- child support -- when chancellor may deviate from family support
     chart. -- A chancellor is allowed by statute to deviate from
     the family support chart, but, under Ark. Code Ann.  9-12-
     312(a)(2) (Supp. 1995), the chartþs presumptions shall be
     rebutted only upon a written finding or specific finding in
     the record that the application of the support chart would be
     unjust or inappropriate, as determined under established
     criteria set forth in the family support chart.

4.   Divorce -- child support -- self-employed payors -- basis for support --
     chancellor erred in assessing same level of support based upon income from
     business ordered sold. -- Regarding self-employed payors, the
     supreme court declared in a per curiam order that the basis
     for child support shall be calculated based on the last year's
     federal and state income tax returns and the quarterly
     estimates for the current year; the court shall also consider
     the amount the payor is capable of earning or a net-worth
     approach based on property, lifestyle, and so forth; clearly,
     this directive contemplated the continued self-employment of
     the payor; by ordering the parties' chicken farm sold, the
     chancery court relieved appellant of the source of income upon
     which his child support was based; simply assessing the same
     level of support that was based upon the income from his then-
     viable business was a misapplication of the guidance found in
     the supreme court's per curiam order.

5.   Divorce -- child support -- chancellor's deviation from support chart was
     abuse of discertion -- appellant not relieved of support obligation --
     support issue reversed and remanded. -- Although the chancellor's
     deviation from the family support chart without making
     appropriate findings of fact constituted an abuse of
     discretion, it did not relieve appellant of his obligation to
     support his child; the appellate court therefore reversed and
     remanded the child-support issue to the chancery court to
     reconsider appellantþs future child-support obligation,
     consistent with the dictates of Ark. Code Ann. 9-12-
     312(a)(2).

6.   Divorce -- alimony -- award is discretionary -- when appellate court can
     reverse. -- While it is true that an award of alimony is not
     mandatory and is solely within the chancery court's
     discretion, the appellate court can reverse if the chancellor
     has failed to address the equities involved.

7.   Divorce -- alimony -- factors considered in awarding. -- The primary
     factors to be considered in the award of alimony are the needs
     of the spouse requesting alimony and the other's ability to
     pay; other factors that a court may consider in determining
     whether to award alimony 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 husband and
     wife; the extent and nature of the resources and assets of
     each of the parties; the amount of income of each that is
     "spendable," i.e., available to each of the parties for the
     payment of living expenses; the earning ability and capacity
     of both husband and wife; property awarded or given to one of
     the parties, either by the court or the other party; the
     disposition made of the homestead or jointly owned property;
     the condition of health and medical needs of both husband and
     wife; the duration of the marriage; and the amount of child
     support.

8.   Divorce -- alimony -- chancellor abused discretion in failing to award
     alimony to appellant. -- Applying the alimony-award factors to the
     case, the appellate court concluded that the chancellor abused
     his discretion in failing to make an award of alimony to
     appellant; the evidence reflected that appellant was
     unemployed and without independent financial means, was fifty-
     seven years old and in declining health, and, without a
     college degree or professional license, was unlikely to find
     a job that would enable him to approach a standard of living
     comparable to what he enjoyed during the marriage; the
     evidence also showed that appellee, who was forty-three years
     old and apparently in better health than appellant, had a
     secure job paying more than $40,000 per year, in addition to
     being the beneficiary of a trust fund set up by her parents,
     and that during the pendency of the divorce she was able to
     place a substantial portion of her salary into savings;
     moreover, appellee retained the main instrumentality that
     enabled her to earn her livelihood, her specially adapted
     delivery vehicle, while the court ordered the sale of the
     chicken farm that appellant had been operating; for most of
     the marriage, which was of twenty years' duration at the time
     of separation, the parties lived a comfortable lifestyle.

9.   Divorce -- alimony -- case reversed and remanded to chancellor to set
     appropriate amount for appellant. -- Because the appellate court
     determined that the evidence clearly supported an award of
     alimony to appellant, it reversed and remanded the case to the
     chancellor to set an appropriate amount.  

10.  Divorce -- purpose of alimony and property settlements -- chancellor
     directed to look only to alimony to provide for appellant. -- Alimony
     and property settlements are complimentary devices that a
     chancery court must employ to make the dissolution of a
     marriage of long standing as equitable as possible; while the
     appellate court agreed with appellant's argument that the same
     facts and circumstances that would justify an award of alimony
     would also support an award of a disproportional share of the
     marital property, its review of the record supported
     appellee's contention that virtually all of the marital
     property was disposed of by agreement of the parties, leaving
     only her savings accounts and retirement subject to division
     by the court; therefore, the appellate court directed the
     chancellor to look only to alimony to provide for appellant.

11.  Contempt -- factual finding. -- The finding of contempt is a
     factual finding that will not be reversed unless it is clearly
     against the preponderance of the evidence.

12.  Contempt -- chancellor's finding of contempt not clearly against
     preponderance of evidence. -- Where an eavesdropping device was
     found on appellee's telephone and a transmitter was found
     found attached to her telephone lines; where appellant
     admitted that he was familiar with how to record a telephone
     conversation and knew where to buy electronic equipment
     designed for the purpose; where a constable had observed
     appellant sitting in his truck, wearing headphones, within
     receiving range of the device, and appellant confirmed that he
     was at that location on three or four occasions; and where
     appellee testified that she did not place the device on her
     own phone and that she felt "harassed" and frightened by
     appellant sitting outside her residence, the appellate court
     could not say that the chancellor's finding of contempt was
     clearly against the preponderance of the evidence.

13.  Divorce -- expenditure of marital property during pendency of proceedings -
     - chancellor has discretion to determine if offset is appropriate --
     discretion properly exercised. -- A chancellor has discretion to
     determine whether an offset is appropriate when parties to a
     divorce expend marital property during the pendency of
     proceedings; among the factors to be considered is whether
     overreaching occurred; the court may even intervene to defeat
     a fraudulent act by an estranged spouse before a petition for
     divorce is filed; where the chacellor awarded appellee half of
     the value that the court had assigned to an automobile sold by
     appellant, the appellate court concluded that the chancellor
     properly exercised his discretion.

14.  Evidence -- expert testimony -- test for admissibility -- discretion of
     trial court. -- Under Rule 702 of the Arkansas Rules of
     Evidence, the test for admissibility of expert testimony is
     whether specialized knowledge will aid the trier of fact in
     understanding the evidence or in determining a fact in issue;
     whether to allow a witness to give expert testimony rests
     largely within the sound discretion of the trial court, whose
     determination will not be reversed absent an abuse of that
     discretion; absolute expertise concerning a particular subject
     is not required to qualify a witness as an expert.

15.  Evidence -- expert testimony -- no abuse of discretion in allowing
     automobile collector to testify. -- Where appellee's witness had
     been a serious collector and Corvette enthusiast for 26 years,
     had entered Corvettes that he owned in classic auto shows, was
     familiar with the market value of older Corvettes, and had
     actually driven the car in question, the appellate court found
     no abuse of discretion in allowing the witness to offer expert
     testimony on the vehicle sold by appellant.

16.  Appeal & error -- chancellor's finding of fact not reversed unless clearly
     erroneous. -- The appellate court will not reverse a
     chancellor's finding of fact unless the decision was clearly
     erroneous.

17.  Evidence -- substantial evidence supported chancellor's valuation of
     automobile -- finding was not clearly erroneous. -- There was
     substantial evidence to support the chancellor's finding
     regarding the value of the automobile sold by appellant; the
     chancellor was not clearly erroneous when it found the value
     of the Corvette to be $16,000.


     Appeal from Pope Chancery Court; Benny Swindell, Chancellor;
affirmed in part; reversed in part.
     Shawn Sibley, and Bonner Law Firm, PA, by: Douglas W. Bonner,
Jr., for appellant.
     Dennis C. Sutterfield, for appellee.

     Andree Layton Roaf, Judge.
     The appellant, Monid Burl Mearns, Jr., appeals from a decree
of divorce, raising five points for reversal.  Mr. Mearns asserts
that the chancellor erred in: 1) setting the amount of child
support he was ordered to pay; 2) refusing to award him alimony
from the appellee, Joyce Coffman Mearns; 3) refusing to award him
seventy-five per cent of the marital property; 4) finding him in
contempt for planting a listening device in Mrs. Mearnsþs
telephone; and 5) awarding Mrs. Mearns $8,000 of the $10,000
realized from the sale of the partiesþ 1961 Corvette.  We hold that
the chancellor abused his discretion in making the award of child
support and in refusing to award alimony to Mr. Mearns, and reverse
and remand on those two issues.  However, we find no error with
respect to the other three points raised by Mr. Mearns and affirm
as to those issues.
     On October 10, 1994, Monid Burl Mearns, Jr. (Monid), appellant
herein, filed suit for divorce from his wife of 20 years, the
appellee Joyce Coffman Mearns (Joyce).  Monid had been the family's
principal breadwinner for the first fifteen years of the marriage. 
When the Mearnses married, Joyce stopped working to raise the
couple's two children.  When the children reached school age, Joyce
began working part-time.
     In 1986, Dow Chemical closed its facility in Russellville
where Monid worked on the production line.  Rather than relocate to
a Dow facility in Texas, Monid chose to remain in Arkansas,
purportedly at his wife's behest.  He invested all of his Dow
retirement, savings, and stock in an auto-parts business.  Later,
Joyce convinced him that the family should also purchase a chicken
farm from her relatives for her to operate.    
     However, shortly after they purchased the chicken farm in
1989, Joyce received a full-time position with the U.S. Postal
Service, and Monid found that he could not operate both the auto
parts store and the chicken farm.  The Mearnses decided to sell the
auto parts business and applied the proceeds to the mortgage debt
on the chicken farm.  Consequently, in 1989, raising chickens
became Monid's full-time occupation.  While chicken farming
provided some tax advantages, it afforded the family relatively
little regular income, so Joyce became the family's primary wage-
earner.  Monid also began to suffer from back and prostate problems
as well as asthma and arthritis. 
     In 1994, Joyce allegedly left Monid for another man, taking
the partiesþ teenage son with her.  The break-up was acrimonious. 
Monid sold for $10,000 a 1961 Corvette that the Mearnses had hoped
would bring as much as $35,000.  Monid also apparently planted a
listening device in Joyce's telephone.  Joyce liquidated certain
marital assets, and gassed Monid with pepper spray after ransacking
his residence.
     In the final decree, the chancellor awarded child support in
the amount of $37.50 per week, without making reference to the
Arkansas child support chart or making any other findings of fact;
denied Monid's prayer for alimony; divided equally all marital
property not specifically apportioned by agreement of the parties;
and found that the value of the 1961 Corvette was $16,000 and
awarded Joyce $8,000 of the $10,000 sale price.  Additionally, the
chancellor found Monid in contempt for bugging Joyce's telephone
and Joyce in contempt for committing battery upon Monid with pepper
spray, and ordered each party to pay the other $500 in attorney
fees.
1.  Child Support
     At the conclusion of the final hearing, Monid moved in open
court to have his child support reduced from $37.50 per week, the
amount indicated by his original support affidavit dated October
24, 1994, which he had agreed to pay at the initial separation
hearing.    Monid argues that his income is below the corresponding
family support chart amount awarded by the court.  He contends that
the chancellor should have calculated his child-support obligation
from his current support affidavit, dated October 19, 1995, which
showed that his net income from all farming activities over the
last 10 months was a loss of $347.18.  Moreover, he contends that
his sole source of income was his chicken farm, and the court
required him to abandon that endeavor to facilitate the sale of the
farm.
     Ordinarily, the amount of child support lies within the sound
discretion of the chancellor, and the chancellor's findings will
not be disturbed on appeal in the absence of a showing of an abuse
of discretion.  Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990).  While other factors may be considered in determining
support, reference to the family support chart is mandatory.  Black
v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991).  A chancellor is
allowed by statute to deviate from the family support chart, but
the chartþs presumptions shall be rebutted, 
     [o]nly upon a written finding or specific finding in the
     record that the application of the support chart would be
     unjust or inappropriate, as determined under established
     criteria set forth in the family support chart . . . .
Ark. Code Ann.  9-12-312(a)(2) (Supp. 1995).
     Regarding self-employed payors, like Monid, the basis for
support:
     shall be calculated based on last year's federal and
     state income tax returns and the quarterly estimates for
     the current year.  Also the court shall consider the
     amount the payor is capable of earning or a net-worth
     approach based on property, lifestyle, etc.
In re: Guidelines for Child Support, 314 Ark. 644, 647, 863 S.W.2d 291, 294 (1993) (emphasis added).  Clearly, this directive
contemplates the continued self-employment of the payor.  By
ordering the chicken farm sold, the court relieved Monid of the
source of income upon which his child support was based; his future
income from the farm will be zero.  Accordingly, simply assessing
the same level of support that was based upon the income from his
then viable business misapplies the guidance found in the supreme
court's per curiam order.  See Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).  
     Although the chancellor's deviation from the family support
chart without making appropriate findings of fact constitutes an
abuse of discretion, it does not relieve Monid of his obligation to
support his child.  We therefore reverse and remand the child-
support issue to the chancery court to reconsider Monidþs future
child support obligation, consistent with the dictates of Ark. Code
Ann. 9-12-312(a)(2).
2. Alimony and Property Settlement
     Although Monid raises as separate issues the chancellor's
decision to award him neither alimony nor a disproportionate share
of the marital property, because these arguments are related, we
discuss them together.
     Monid argued that the equities dictated that he should have
been awarded both alimony and a larger share of the marital assets,
because he needed these provisions to survive.  While Joyce
disputed Monid's entitlement to alimony and a more advantageous
property settlement, she nonetheless conceded that Monid's long
work history primarily involved manual labor, and although she
claimed that he was a good auto-parts salesman, she nonetheless
described his auto-parts store as a failure.  Moreover, Joyce
verified that Monid indeed had the health problems that he claimed. 
     While it is true that an award of alimony is not mandatory,
and is solely within the chancery court's discretion, Ducharme v.
Ducharme, 316 Ark. 482, 872 S.W.2d 392 (1994), we can reverse if
the chancellor has failed to address the equities involved.  See
Stevens v. Stevens, 271 Ark. 248, 608 S.W.2d 17 (1980).  We find
that the instant case is just such a situation and is analogous to
Warren v. Warren, 270 Ark. 163, 603 S.W.2d 472 (Ark. App. 1980), in
which we reversed a chancellor's denial of an alimony award to an
ex-wife of fifteen years, who lacked special job skills, and did
not receive a property settlement that was substantially more than
fifty percent of the marital assets. 
     The primary factors to be considered in the award of alimony
are the needs of the spouse requesting alimony and the other's
ability to pay.  Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934
(1996).  In Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980),
the supreme court articulated a list of factors that a court may
consider determining whether to award alimony.  The list includes:
     [1]  the financial circumstances of both parties,
     [2]  the couple's past standard of living,
     [3]  the value of jointly owned property,
     [4]  the amount and nature of the income, both current
     and anticipated, of both husband and wife,
     [5]  the extent and nature of the resources and assets of
     each of the parties,
     [6]  the amount of income of each that is "spendable,"
     available to each of the parties for the payment of
     living expenses, 
     [7]  the earning ability and capacity of both husband and
     wife,
     [8]  property awarded or given to one of the parties,
     either by the court or the other party,
     [9]  the disposition made of the homestead or jointly
     owned property,
     [10]  the condition of health and medical needs of both
     husband and wife,
     [11]  the duration of the marriage,
     [12]  the amount of child support.
     (citations omitted)
Id. 268 Ark. at 124, 594 S.W.2d  at 20.
     When we apply the Boyles factors to the instant case, we are
compelled to conclude that the chancellor abused his discretion in
failing to make an award of alimony to Monid.  The evidence
reflects that Monid is unemployed and without independent financial
means, while Joyce has a secure job paying more than $40,000 per
year, in addition to being the beneficiary of a trust fund set up
by her parents.  For most of the marriage, the Mearnses lived a
comfortable lifestyle, residing in a single family residence and
able to afford a variety of cars and trucks.  The value of all the
partiesþ property, real and personal, does not appear from the
record to be exceptional, and the proceeds from one of the most
valuable assets, the 1961 Corvette, was divided $8,000/$2,000 in
Joyce's favor.  As already noted, Monid is unemployed, but more
importantly, at age 57 and in declining health, and without a
college degree or professional license, it is unlikely that he will
find a job that will enable him to approach a standard of living
comparable to what he enjoyed during the marriage.  Conversely,
Joyce has a secure income, and during the pendency of the divorce
was able to place a substantial portion of her salary into savings. 
Moreover, Joyce has retained the main instrumentality that enables
her to earn her livelihood, her specially adapted delivery vehicle,
while the court ordered the sale of the chicken farm that Monid had
been operating.  At age 43, Joyce is also apparently in better
health than Monid.  There is considerable evidence in the record
documenting Monid's prostate and back problems, as well as asthma
and arthritis, all of which was corroborated by Joyce's testimony.
This is also a marriage of long duration: the Mearnses had been
married some 20 years at the time they separated.
     Because we find that the evidence in this case clearly
supports an award of alimony to Monid, we reverse and remand to the
chancellor to set an appropriate amount.  
     With regard to Monidþs argument for a greater share of the
marital property, alimony and property settlements are
complimentary devices that a chancery court must employ to make the
dissolution of a marriage of long standing as equitable as
possible.  See Boyles v. Boyles, supra; see also Tortorich v.
Tortorich, 50 Ark. App. 114, 902 S.W.2d 247 (1995).  While we agree
with Monid's argument that the same facts and circumstances that
would justify an award of alimony would also support an award of a
disproportional share of the marital property, our review of the
record supports Joyce's contention that virtually all of the
marital property was disposed of by agreement of the parties,
leaving only her savings accounts and retirement subject to
division by the court.  We note that the value of these assets
apparently do not much exceed $10,000 and therefore, we cannot
conclude that, in light of our decision to direct the chancellor to
award alimony, giving him a greater than fifty percent share of
these assets would better redress the inequity complained of.  We
therefore direct the chancellor to look only to alimony to provide
for Monid.
3.  Contempt
     Monid argues that there was no basis in law or fact for
finding that he violated the temporary order, which enjoined the
parties in "any manner from molesting or harassing each other." We
disagree.  The finding of contempt is a factual finding that will
not be reversed unless it is clearly against the preponderance of
the evidence.  Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761
(1991).  A review of the evidence presented at the contempt hearing
clearly justifies the chancellor's finding.
     An eavesdropping device was found on Joyce's phone by a
telephone company employee, after Monid had unmonitored access to
the instrument.  Monid admitted at the hearing that he had used
Joyce's phone after the separation hearing.  A transmitter was also
found attached to Joyce's phone lines, and Monid admitted that he
was familiar with how to record a telephone conversation, and knew
where to buy electronic equipment designed for that purpose. 
William Parks, the constable of Hector, Arkansas, observed Monid
sitting in his truck, wearing headphones, within receiving range of
the device, which could be received by a standard FM radio, and
Monid confirmed that he was at that location on three or four
occasions.  Finally, Joyce testified that she did not place the
device on her own phone, and that she felt "harassed" and
frightened by Monid sitting outside her residence.  Consequently,
we cannot say that the finding of contempt was clearly against the
preponderance of the evidence.
4. Apportionment of the Corvette Proceeds
     In its November 3, 1994, Temporary Order, the chancellor
directed Monid to repurchase the 1961 Corvette that he had sold for
$10,000 shortly before filing his petition for divorce.  The buyer
refused to reconvey the automobile, and at the final hearing, the
court heard testimony as to its value.  In the final decree, the
chancellor awarded Joyce half of the value that the court assigned
to the car, or $8,000.  Monid argues that the sale was proper and
that the chancellor erred in dividing the proceeds
disproportionately.
     A chancellor has discretion to determine whether an offset is
appropriate when parties to a divorce expend marital property
during the pendency of proceedings.  Burns v. Burns, 312 Ark. 61,
847 S.W.2d 23 (1993).  Among the factors to be considered is
whether overreaching occurred.  Id.  The court may even intervene
to defeat a fraudulent act by an estranged spouse before a petition
for divorce is filed.  See Renn v. Renn, 207 Ark. 147, 179 S.W.2d 657 (1944).  We find that the chancellor properly exercised his
discretion in this case.
     Monid also argues that the court abused its discretion in
qualifying Joyce's expert witness who testified about the value of
the Corvette.  We find this argument has no merit.  Under Rule 702
of the Arkansas Rules of Evidence, the test for admissibility of
expert testimony is whether specialized knowledge will aid the
trier of fact in understanding the evidence or in determining a
fact in issue.  Williams v. Ingram, 320 Ark. 615, 899 S.W.2d 454
(1995).  Whether to allow a witness to give expert testimony rests
largely within the sound discretion of the trial court, and that
determination will not be reversed absent an abuse of that
discretion.  Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785 (1995). 
Absolute expertise concerning a particular subject is not required
to qualify a witness as an expert.  Dildine v. Clark Equip. Co.,
282 Ark. 130, 666 S.W.2d 692 (1984). 
     Joyce's witness, John Rogerson, a serious collector and
Corvette enthusiast for 26 years, had entered Corvettes that he
owned in classic auto shows, was familiar with the market value of
older Corvettes, and had actually driven the car in question.  We
find no abuse of discretion in allowing Mr. Rogerson to offer
expert testimony.
     Finally, Monid argues that the value set by the court was
clearly erroneous.  He recounts a number of minor mechanical
defects, and points to the testimony of his own expert witness who
appraised the value as between $10,000 and $12,000 as support for
his contention that the chancellor's finding was clearly against
the preponderance of the evidence.  We disagree.
     We will not reverse a chancellor's finding of fact unless the
decision was clearly erroneous.  Jones v. Jones, supra.  There is
certainly substantial evidence to support the chancellor's finding. 
Experts for both Monid and Joyce agreed that the value of the
Corvette exceeded $10,000, as did Monid himself, when he testified
at the separation hearing.  Moreover, it was undisputed that the
Mearnses had hoped to get as much as $35,000 out of the vehicle
when they sold it.  Joyce testified that there was over $20,000
invested in the car, not counting the considerable number of hours
Monid had spent refurbishing it.  Finally, $16,000 was within the
range of values stated by expert testimony.  We find that the court
was not clearly erroneous when it found the value of the Corvette
to be $16,000. 
     Affirmed in part; reversed in part and remanded.
     Bird, Griffen, and Neal, JJ., agree.
     Pittman and Jennings, JJ., dissent.


             John Mauzy Pittman, Judge, dissenting.


     I respectfully dissent from that part of the majority opinion
that reverses and remands the chancellor's decision regarding the
child support and alimony.
     Although this court reviews chancery cases de novo on the
record, we will not disturb the chancellor's findings unless they
are clearly against the preponderance of the evidence or clearly
erroneous.  Lytle v. Lytle, 301 Ark. 61, 781 S.W.2d 476 (1989);
Ark. R. Civ. P. 52(a).  In our review, we are to give deference to
the chancellor's superior position in evaluating the witnesses and
their testimony.  Lytle, supra.  Because there was conflicting
testimony, the chancellor was in the best position to resolve the
conflicts, and I am not convinced that his decision is clearly
erroneous.
     As to the issue of child support, the majority finds that the
chancellor made his award without making reference to the child-
support chart or making any findings of fact.  Then, instead of
simply remanding for the court either to refer to the chart or to
make findings, the majority first finds error in "assessing the
same level of support that was based upon the income from
[appellant's] then viable business" because "[b]y ordering the
chicken farm sold, the court relieved [appellant] of the source of
income upon which his child support was based."  I disagree on both
counts.
     In October 1994, appellant filed an affidavit of financial
means showing his weekly take-home pay to be $159.85.  In the
ensuing temporary order, appellant's child-support obligation was
set at $37.50 per week, the exact amount referenced by the chart
for one with appellant's admitted income.  One year later,
appellant submitted another affidavit, this one reflecting a net
loss of $46.56 per week.  Appellant testified that the value of
chickens and his income from raising them had fallen sharply since
his first affidavit.  He also testified that he has health problems
and is basically unemployable.  Clearly, the court was not
obligated to accept appellant's second affidavit or to believe
appellant's testimony that he had a negative income as a chicken
farmer and was otherwise unemployable.  Notably, despite
appellant's asserted inability to pay, he had been paying the
$37.50 in weekly support during the pendency of the divorce action. 
Obviously, the chancellor believed that there had been no material
change in appellant's income since 1994 and simply declined to
reduce the amount of child support previously set, which was
unmistakably the presumptive amount payable under the chart for
appellant's previously admitted income.  In my opinion, this
satisfies the requirement that the court refer to the chart, and,
since there was no deviation, no additional findings were
necessary.  I find no reversible error in the chancellor's award of
child support.
     Nevertheless, if the majority feels that it must remand the
case for a more specific reference to the chart or for findings, it
should do so without commenting on the correctness of the amount
set in light of the order that the farm be sold.  First, I cannot
see that appellant has made any such argument in his brief.  To the
contrary, as I read his brief, appellant simply argues that the
trial court was bound to accept as true his evidence of his present
income as a chicken farmer, that the award therefore constituted a
deviation from the chart, and that the court failed to make
findings to support a deviation.  Second, it has been our practice
in such cases simply to remand for the chancellor to follow the
dictates of the statute requiring reference to the chart or
findings to support deviation therefrom.  See Black v. Black, 306
Ark. 209, 812 S.W.2d 480 (1991); Fontenot v. Fontenot, 49 Ark. App.
106, 898 S.W.2d 55 (1995); Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993).  Third, to the extent that the majority's
comment might imply that the chancellor's award is too high and
should be reduced on remand, it overlooks a number of other factors
that a chancellor could otherwise consider in making an award,
including the amount a payor is capable of earning, see McJunkins
v. Lemons, 52 Ark. App. 1, 913 S.W.2d 306 (1996), and the sums that
a payor is likely to realize from a court-ordered sale of marital
assets.
     The majority has also found that, based on a disparity in the
parties' incomes and "considerable evidence" of appellant's health
problems, an alimony award to appellant is required.  I disagree. 
There is very little in the record concerning appellant's purported
health problems; most of what does appear consists of appellant's
general, nondescriptive, and vague testimony.  Moreover, the
testimony fails to demonstrate that appellant is unemployable. 
Appellant testified that he has back problems that hinder his
mobility and breathing, that he has prostate problems (consisting
of an infection that "comes and goes"), and difficulty with his
esophagus.  The only medical testimony came from appellant's
chiropractor, who stated that appellant has a degenerative and
progressive condition in his spine called "ankylosis spondylitis,"
which restricts his mobility and his ability to stand or walk for
extended periods of time.  He thought appellant was fifteen percent
impaired and that his condition was manageable.  The chiropractor
opined that appellant would be disabled in approximately ten years
and that presently appellant could perform work using his head and
hands.   Although appellant testified that he was unable to do any
physical labor and that he did not know of any job that he was
capable of performing, he was a chicken farmer up until the court
ordered the farm sold.  Also, appellant said that he had not
applied for social security disability benefits.  
     The record reflects that appellant was fifty-six years old at
the time of trial, that he had a high school education, and that he
had mechanic, carpentry, and welding skills.  Appellant also
testified that he had experience as an auto-parts salesman. 
Although appellant may have been required to change  employment, I
do not believe the record commands an award of alimony on that
basis.  Moreover, appellee's latest affidavit of financial means
dated October 1995 reflected a weekly take-home pay of $560.00, or
an approximate $28,000.00 annual net pay.  Appellee's receipt of
compensation in excess of this amount was to reimburse her for the
personal use of her automobile on her mail carrier route, which she
said was about eighty-eight miles each day.  Appellee also
testified that she was paying the college tuition and expenses for
the parties' son.  In my opinion, the evidence was such that the
chancellor could reasonably have found that the difference in
appellee's income and appellant's earning capacity was not
significant.
     Further, in making its decision concerning alimony, the
chancellor may take into account the property awarded to the
parties.  Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990). 
Here, appellant was awarded one-half of the sale proceeds from the
marital home, one-half of seven bonds in $500.00 denominations, and
one-half of appellee's retirement and savings plan.
     It is well established that an award of alimony is left to the
sound discretion of the chancellor and his decision will not be
reversed absent a clear abuse of discretion.  Bolan, supra.  I
cannot say that the chancellor abused his discretion in declining
to award alimony to appellant.
     I would affirm. 
     Jennings, J., joins in this dissent.