Ronald Robson v. Deborah Robson

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

RONALD ROBSON

APPELLANT

V.

DEBORAH ROBSON

APPELLEE

CA05-182

NOVEMBER 2, 2005

APPEAL FROM THE POINSETT COUNTY CIRCUIT COURT

[NO. DR 2003-313]

HON. DAVID GOODSON,

CIRCUIT JUDGE

AFFIRMED IN PART; REVERSED IN PART AND REMANDED

Josephine Linker Hart, Judge

Ronald Robson appeals from the portion of a Pointsett County Circuit Court divorce decree that ordered him to pay $1,650 per month in alimony and required him to maintain life insurance naming his wife Deborah Robson as the sole beneficiary until her death or remarriage. On appeal, he argues that in setting the alimony award, the trial court erred in not considering the Family Support Chart and in failing to consider the "substantial monetary assets" awarded to his wife in the division of marital property and that the trial court's findings regarding his income and the spousal support award are contrary to the preponderance of the evidence. He also argues that the trial court abused its discretion in requiring him to maintain the life insurance policy. We affirm the first point, but reverse and remand the second issue for further proceedings consistent with this opinion.

Ronald and Deborah were married on May 24, 1968. On November 4, 2003, Deborah filed a complaint for divorce, alleging general indignities. The children born of the marriage

had reached their majority by the time the parties separated. Prior to the final hearing, the parties divided the marital property, leaving only the issue of spousal support for the trial court's determination.

Deborah testified that she was fifty-six years old and was unemployed. She claimed her average monthly expenses at the time were $623, but had not noted that Ronald was currently paying all of the marital debts including the mortgage on the marital residence where she lived and the car payment on the Honda Accord that she drove. She anticipated that after the divorce was final, she would move to Marion, where she estimated that her monthly expenses would be $2,162.

Deborah stated that she contracted polio when she was twenty months old and suffered from post-polio syndrome. She also had a ruptured disc that was surgically repaired, arthritis "in her good leg," grand mal seizures, osteoporosis, anxiety, and depression. She introduced a printout from the Wal-Mart pharmacy showing a monthly expenditure of $750 and another from Care Mart for a ninety-day supply of medication with an established value of $1,205.18. Deborah stated that while she was insured by Ronald's Southwestern Bell insurance she had a co-pay of only $36 for the Care Mart prescriptions, but noted that Ronald had discontinued coverage and now, in light of her medical condition, she was uninsurable. Further, she had applied for social security disability and had been denied, but an appeal was pending.

After graduating from high school, Deborah attended Miller-Hawkins business school where she was certified as a medical secretary. However, she stopped working in 1992 because of her medical conditions. Her last job was in 2003, when she "sat around in [her] pajamas at [her] father's kitchen table stuffing envelopes." Regarding her husband's business, she stated that he showed her large amounts of cash on several occasions and hadcommented that it was "better than telephone money because it was tax free." She was aware that Ronald did work for her niece, Sarah Beth Richardson, and that he did not claim the proceeds on his income taxes. Deborah requested that Ronald be required to maintain his life insurance policy with coverage of $254,000 and her as the named beneficiary. She acknowledged that she was set to receive half of Ronald's $384,000 IRA, but asserted that she had to be "very prudent with that due to [her] medical condition." She noted for example that she wore a $6,000 leg brace that she expected to have to replace within a few years.

James Holland Richardson, Deborah's father, confirmed that his daughter contracted polio when she was twenty months old and that she suffered from a seizure disorder. Regarding Ronald's business, Richardson admitted that Ronald did not talk to him about his employment or the payments he received, but Ronald did tell him that he was "working fairly regularly." He further testified that one time in 2002 Ronald pulled out a "roll of money" from his pocket and told him that it was "better than telephone money because it's tax free."

Sarah Beth Richardson, Ronald's niece, testified that she paid Ronald about $400 in cash for wiring work that he did for her at her residence. Although she admitted that he did not bill her, she gave him that money because it "was about right." Sharon Richardson, Deborah's sister-in-law, also testified that Ronald did $400 worth of sheetrock work for her company, H.L. Bennett Farm, LLC.

Paul Scott Robson, the parties' son, testified that he did some phone work for his father's company briefly in the fall of 2003. He stated that he worked on jobs at West Side Schools, Cornerstone Towing, Larry Jennings in Harrisburg, and another business on Dann Avenue, whose name he could not recall. According to Robson, Ronald questioned himabout whether he "shared" any information regarding the business with Deborah. He further testified that he helped his mother financially, buying "most of the groceries."

Ronald testified that he retired from Southwestern Bell on February 2, 2002, and started his own business installing telephone and computer wires and jacks. He claimed that in the last year he worked for the phone company, he earned $110,000. However, retiring was a "joint decision" between Deborah and himself. In the last year, he had difficulties with a supervisor as well as physical problems that helped him decide to retire. He also had prostate cancer. He asserted that he could not make the same money in his private business, but he preferred the working conditions.

According to Ronald, in his business, he mainly served business clients and "told the people that were referring me residential just to back off" because he had enough business to keep him busy. Regarding compensation, he stated that he worked as a subcontractor for two companies, M & J Enterprises and A1 Communications, that paid him $20 and $55 per hour respectively. He claimed that in 2003, his income was $22,077.73, which included a distribution from his IRA. The distribution incurred a ten-percent penalty. His 2004 income for his business was $22,776.99. Ronald stated that his monthly expenses were about $1,500 per month, the amount that he had listed on his Affidavit of Financial Means.

Ronald claimed that he "never intentionally evaded taxes." He did, however, confess to some sloppy record keeping. He also stated that he "never carried a fist full of money in my pocket ever." Ronald asserted that he did not "have any assurance that I'll get a continued flow of business," but noted later that business was picking up and that he was getting more "word of mouth" referrals. Regarding his IRA, he stated that he only intended to draw on it until his business got established and that although he did not want to, he stillneeded to take distributions to "stay afloat." He also claimed that he needed to take money from his IRA to make the temporary maintenance payments to Deborah.

The trial court made extensive findings of fact, including specific findings that Ronald had not accurately stated his gross earnings from his business for the years 2003 and 2004 and that his "lifestyle" was inconsistent with his testimony that he earned approximately $2,200 per month. It awarded Deborah alimony in the amount of $1,650. It also ordered Ronald to keep the life insurance policy on his life in effect by paying the monthly premiums of $87.68, and to maintain Deborah as the sole beneficiary.

On appeal, Ronald first argues that the trial court abused its discretion in ordering him to pay $1,650 per month in alimony. He contends that the trial court should have considered the Family Support Chart when determining the amount of his support obligation, failed to consider the "substantial monetary assets" awarded to his ex-wife in the division of marital property, and based the award on factors it did not enumerate in its order. He also argues that the trial court's findings regarding his income and the spousal-support award are contrary to the preponderance of the evidence. We disagree.

The decision whether to award alimony lies within the trial judge's sound discretion, and we will not reverse a trial judge's decision to award alimony absent an abuse of that discretion. Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003). The purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case. Id. 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.

We review traditional equity cases de novo on the record and will not reverse a finding of fact by the trial judge unless it is clearly against the preponderance of the evidence. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003). In reviewing the trial judge's findings, we give due deference to the judge's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). In order to demonstrate that the trial court's ruling was erroneous, an appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Id.

First, regarding Ronald's contention that the trial court erred in failing to reference the Family Support Chart, he cites Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999), and Cole v. Cole, supra, for the proposition that failure to consider the chart constitutes reversible error. We believe his reliance on these cases is misplaced. The Family Support Chart, set forth in Supreme Court Administrative Order Number 10, is intended to be child support guidelines. While we are mindful that Section III (e) does deal with "Spousal support," that section is only relevant in situations where child support is at issue and spousal support is appropriate for the custodial parent. In the instant case, the record indicates that the children born of the Robson marriage had reached their majority, and therefore, child support was not an issue. Accordingly, loose language in Schumacher and Cole notwithstanding, our holdings in those cases do not compel us to accept Ronald's interpretation, which we hold is contrary to the plainly stated wording of Administrative Order Number 10.

We next turn to Ronald's second sub-point, concerning the trial court's alleged failure to consider the "substantial monetary assets" awarded to his ex-wife in the division of marital property. He cites Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002), for theproposition that alimony and property divisions are complementary devices that a trial court employs to make the dissolution of a marriage as equitable as possible, and asserts that Deborah's receipt of more than $200,000 in cash "seriously neutralized an `economic imbalance' between the parties, leaving both of them on equal footing with their assets following the divorce." Ronald contends that, by "ignoring" the fact that Deborah left the divorce with cash on hand of $210,000, the trial court created a "significant windfall" for her because his earnings since his retirement cannot "even remotely" justify an award of $1,650 per month in alimony. We believe this argument fails because it mischaracterizes the nature of alimony and marital property division.

We reject Ronald's major premise that nearly equal distribution of marital assets will make the parties equal. It is not disputed that Deborah is in poor health and has a virtually nonexistent work history. Conversely, while it is true that Ronald has prostate problems, he characterized himself as having recovered from the illness and asserted that he was able to work forty hours per week. Moreover, as recently as 2002, Ronald earned more than $100,000, and he testified that he had skills that could command $55 per hour or better. We acknowledge that, as Ronald correctly notes, there is an "interplay" between alimony and property division in the divorce context. For instance, a trial court has the authority to make a property award in lieu of alimony, see Ferguson v. Ferguson, 251 Ark. 585, 473 S.W.2d 869 (1971), or could award alimony to compensate a party for an unequal property distribution, see, e.g., Harvey v. Harvey, 298 Ark. 308, 766 S.W.2d 935 (1989). The goal, however, is to make the dissolution of a marriage of long standing as equitable as possible. Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997)(overruled on another point of law). The primary factors to be considered in awarding alimony are the need of one spouse and the other spouse's ability to pay. Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996). Here, Deborah has virtually no means of support except for distributions from her portion of the IRA. Meanwhile, Ronald retained the ability to earn a substantial living. Under these circumstances, we hold that the trial court did not err in awarding alimony.

We also find unpersuasive Ronald's next subpoint, that the trial court abused its discretion in making its alimony award based on factors it did not enumerate in its order. He cites Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980), for the proposition that in fixing the amount of alimony, the courts consider many factors, including: (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 parties' income, both current and anticipated; (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; (7) the earning ability and capacity of each party; (8) the 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. He asserts that trial court erred by "only" referencing five of the factors and failing to properly consider his own poor health in making the alimony award. In the first place, in Mulling v. Mulling, supra, the supreme court stated that the factors listed in Boylses were merely "illustrative factors courts have used when fixing the alimony amount." Accordingly, it is not reversible error for a trial court to reference fewer than all of the factors. Regarding Ronald's allegation that the trial court misapplied the tenth Boyles factor relating to the relative health of the parties, we believe that the testimony at trial established that, while Deborah's medical conditions were debilitating, Ronald's maladies, by his own admission, did not prevent him from working full-time and earning a substantial income.

Finally, we also reject Ronald's contention that the trial court's findings regarding his income and the spousal support award are contrary to the preponderance of the evidence.

While we are mindful that he put on considerable evidence including affidavits and tax returns that purported to show that his current income was less than $25,000 per year, the record also contains evidence that he under reported his income and actually referred to his business income as being "tax free." Furthermore, his own testimony established that he was able to work full time, he had more work than he could handle, and even at $55 per hour, he was able to undercut his competition. As noted above, in reviewing the trial judge's findings, we give due deference to the judge's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Williams v. Williams, supra.

As the conflict in the evidence requires a credibility determination, we defer to the trial court on this point.

For his second main point, Ronald argues that the trial court abused its discretion in requiring him to maintain the life insurance policy, naming Deborah as the sole beneficiary. He contends that it was error for the trial court to order it "particularly when viewed in conjunction with the excessive award of alimony." Further, he contends that because it is term life insurance, as he ages, it will become prohibitively expensive. We agree.

At oral arguments, Deborah's appellate counsel conceded that the trial court's estimation of imputed income was perhaps $20,000 higher than even her highest estimate. Furthermore, she stated that the insurance policy was "property," and therefore, the award could not be modified by a subsequent decision of the trial court.1 Given the large size of thealimony award, we can only conclude that the trial court intended to rely solely on alimony and not on an unequal division of marital property to redress the economic imbalance between the parties engendered by the divorce. Accordingly, it would be error to also order an unequal distribution of marital assets. Moreover, we note that, if indeed the trial court intended such an unequal distribution, it failed to make the requisite findings necessary to sustain its deviation from an equal division of marital assets as mandated by Arkansas Code Annotated § 9-12-315(a)(1)(A) (Repl. 1993). We therefore reverse and remand to the trial court for further proceedings consistent with this opinion.

Affirmed in part and reversed in part and remanded.

Glover and Crabtree, JJ., agree.

1 We are mindful that the appellant has attempted to characterize the insurance premiums as alimony, however, we disagree with that conclusion, notwithstanding his resort to a bankruptcy case as persuasive authority. We believe that, under Arkansas law, insurance policies are generally found to be personal property. See, e.g., Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002).