Victor Lee Bettis v. Wendy Pauline Bettis
Annotate this Case
Download PDF
DIVISIONS III, IV & I
CA061417
November 7, 2007
VICTOR LEE BETTIS
APPELLANT
V.
APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT
[EDV013593]
HON. ALICE SPRINKLE GRAY,
CIRCUIT JUDGE
WENDY PAULINE BETTIS
APPELLEE
AFFIRMED
Appellant Victor Bettis appeals the trial court’s order modifying the divorce decree that
extended and increased alimony payments to his former wife, appellee Wendy Bettis. We affirm.
Victor and Wendy were divorced in 2002. They have three children—Megan, Jacqueline, and
Evan. Jacqueline and Evan were minors at the time of the divorce, age sixteen and fourteen
respectively. Jacqueline suffers from cerebral palsy and is confined to a wheelchair. Although
Jacqueline requires twentyfour hour a day care, she is currently enrolled at the University of Central
Arkansas and maintains a 3.0 gradepoint average.
The divorce decree awarded custody of Jacqueline and Evan to Wendy; awarded Wendy child
support for Jacqueline and Evan; acknowledged that child support for Jacqueline would continue
beyond the age of majority because of her disability; and awarded $1000 per month in alimony to
Wendy until Evan graduated from high school.
In November 2004, the trial court entered an order that, among other things, stated that child
support would continue for Jacqueline due to her disability; however, the parties agreed that child
support for Jacqueline was abated as of May 1, 2004, so that she could receive government
1
assistance. According to the testimony at trial, Jacqueline is not entitled to government benefits if
Wendy receives childsupport payments for Jacqueline.
On March 20, 2006, Victor filed a motion for termination of alimony and child support. He
alleged that child support payments for Evan should be terminated, because Evan turned eighteen and
was about to graduate from high school. Wendy conceded this issue, and the trial court terminated
these payments. Victor also alleged that alimony should be terminated because the divorce decree
stated that alimony will be terminated upon Evan’s graduation from high school. Wendy filed a
response and countermotion seeking the continuation and increase of alimony.
At trial, Wendy testified that she is employed as a teacher at the Cathedral School where she
has worked for twelve years. Her salary for the 2006–07 school year was $33,000. Since the divorce,
her salary has increased $5100. She lives in the home that she and Victor built to accommodate
Jacqueline’s special needs. The testimony was undisputed that Wendy is the primarycare giver for
Jacqueline year round and that Jacqueline needs assistance with every task. Also, while Jacqueline
is in college during the school year, she lives with Wendy during the weekends, holidays, and
summers.
Victor testified that he is employed with Remington Arms where he earns $82,500 a year. He
testified that since the divorce, his salary has increased in excess of $10,000. He admitted that Wendy
is the primary care giver for Jacqueline, but he testified that he provides help when needed.
1
Jacqueline receives college tuition scholarships from the Arkansas Academic
Challenge and Arkansas Rehabilitation, social security disability benefits, Medicare
benefits, and Independent Choices benefits.
2
Lyles Henry testified on behalf of Wendy as an expert witness. He reviewed Victor’s tax
returns and his Affidavit of Financial Means. Mr. Lyles testified that Victor had a net annual income
of $60,022 and expenses of $36,732. Therefore, Mr. Lyles concluded that Victor had the ability to
pay $1000–$2000 per month in alimony.
The trial court subsequently entered an order finding that there had been a substantial change
in circumstances since the entry of the divorce decree justifying an increase in the duration and
amount of alimony awarded to Wendy. The trial court stated:
The substantial change in circumstances include the following:
a.
b.
c.
d.
e.
f.
g.
The Defendant’s annual income increased by at least $10,000 since the entry of the
Divorce Decree and the Plaintiff’s annual income increased by at least $5000 since the
entry of the Divorce Decree.
The Defendant received a $30,000 bonus from his employer.
The child support for Jacqueline has been abated. The Plaintiff anticipated at the time
of the divorce that she would be receiving child support payments to assist in
Jacqueline’s care and to provide her a home. Plaintiff is not receiving child support
payments to assist her in the care of Jacqueline, who is an adult and who is in need of
care because of her disability.
Jacqueline is attending college.
The Defendant is not paying any child support for Jacqueline and therefore has a
higher level of income than he anticipated at the time of the divorce.
Plaintiff provides a substantial amount of care for Jacqueline.
Either of the parties could have chosen to provide the care for their adult daughter,
who is in need of substantial care, however, the party who provided the care for
Jacqueline was Plaintiff.
The trial court further stated that it considered the tax effect of Victor’s continued alimony payments.
The court found that Wendy’s weekly income was approximately $512 while Victor’s weekly income
was approximately $1,184.55. The trial court then awarded alimony to Wendy in the amount of
$1150 per month and awarded her $3000 in attorney’s fees and expenses. Victor has appealed from
this order.
3
Victor first argues that the trial court erred in finding that there had been a change in
circumstances sufficient to continue and increase alimony to Wendy. He argues that Wendy is actually
seeking child support but calling it alimony. A decision whether to award alimony is a matter that lies
within the trial court’s sound discretion, and on appeal we will not reverse a trial court’s decision to
award alimony absent an abuse of that discretion. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525
(2000); Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003). Alimony is intended to rectify any
economic imbalance in the earning power and standard of living of the parties in light of the particular
facts of the case. Cole, 82 Ark. App. at 58, 110 S.W.3d at 317. The primary factors to be considered
are the financial need of one spouse and the ability of the other spouse to pay. Id.
Modification of an award of alimony must be based on a change of circumstances of the
parties. Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998). The burden of showing a change
of circumstances is always on the party seeking the change in the amount of alimony. Hass v. Hass,
80 Ark. App. 408, 97 S.W.3d 424 (2003). In the divorce decree, the parties agreed that alimony
would discontinue when Evan graduated from high school. Therefore, the burden of showing a
change of circumstances to support a continuation and increase of alimony was on Wendy.
We hold that the trial court did not abuse its discretion in modifying the divorce decree by
continuing and increasing alimony. First, the evidence supports the trial court’s findings of Victor’s
ability to pay and Wendy’s need. Wendy’s annual income is $33,000 while Victor’s is $82,500.
Wendy’s expert witness testified that Victor had the ability to pay up to $2000 per month in alimony.
At trial, Victor admitted that “I’ve got more than enough [money] to cover my expenses and continue
to pay the alimony.” In contrast, Wendy testified that, “I cannot make my house payment without the
current alimony.” Wendy’s ability to pay the mortgage is significant in light of the undisputed fact that
4
she is the primary care giver for Jacqueline who, along with Wendy, must have a place to live. Even
Victor testified about the importance of Wendy having a home: “I would agree that Jacqueline needs
a place to stay on the weekends. [I] [n]ever denied that [Jacqueline] needs a place to stay on holidays
and in the summer. My exwife has been the only one to provide that.”
Furthermore, we hold that the trial court did not abuse its discretion in finding a change of
circumstances. Since the entry of the divorce decree, Victor’s income increased by $10,000 while
Wendy’s increased only by $5000. At the time of the divorce, Victor anticipated paying child support
indefinitely, and because it was abated, he has experienced an unexpected increase in income. When
the parties divorced, Wendy testified that she never anticipated that Jacqueline would be able to
attend college. Moreover, Wendy did not anticipate that Jacqueline’s child support would be abated
so that Jacqueline could receive government benefits. These facts alone demonstrate a significant
change in circumstances since the entry of the divorce decree.
We disagree with Victor, and the dissent, that this case is nothing more than Wendy’s effort
to collect child support by calling it alimony. We further acknowledge the unusual circumstances of
this case: Jacqueline will likely need care and support for the rest of her life, but she cannot be the
beneficiary of childsupport payments because of her receipt of government benefits. Nevertheless,
based on the findings of the trial court Wendy is, independent from the childsupport issue, entitled
to continued and increased alimony.
Victor also argues that the trial court erred in awarding $3000 in attorney’s fees and expenses
in favor of Wendy. Arkansas Code Annotated section 912309(b) (Repl. 2002) provides that a court
may allow either party additional attorney’s fees for the enforcement of alimony. Victor contends that
his motion to terminate alimony and Wendy’s counter motion to continue and increase alimony does
5
not fall within the purview of that statute. We disagree. There was only one issue in this
case—whether Wendy was entitled to alimony. We also note that the trial court has great discretion
on the issuance of an attorney’s fee award in alimony cases. McKay, 340 Ark. at 183, 8 S.W.3d at
532. Therefore, we cannot say that the trial court abused its discretion in awarding attorney’s fees
to Wendy, and we affirm the award.
Affirmed.
PITTMAN, C.J., and HART, BIRD and HEFFLEY, JJ., agree.
GLADWIN, GRIFFEN, GLOVER and MILLER, JJ., dissent.
ROBERT J. GLADWIN, Judge, dissenting. Today the majority expands the definition of alimony
to include child support. Because I believe that the trial court erred in finding a change of
circumstances and that there was insufficient evidence to continue the payment of alimony beyond
the period specified in the divorce decree, I would reverse.
The evidence presented in this case centers on the parties’ middle child, Jacqueline, who has
cerebral palsy and is completely dependent on others to give her assistance in eating and personal
care. She is cognitively alert, but is only able to use part of the right side of her body enough to drive
a power wheelchair and to use a computer with one finger. She is now twenty years old and
attending the University of Central Arkansas, where she has a 3.0 gradepoint average. She lives on
campus and is able to pay personal caregivers from a Medicaidsponsored program called
Independent Choices. Appellant was instrumental in discovering this particular funding and was also
able to help her obtain socialsecurity payments. Jacqueline returns home on weekends, and appellee
is in charge of caring for Jacqueline’s personal needs during her visits. Jacqueline has also arranged
for a personal caregiver to assist her periodically on the weekends. Depending on the number of
6
hours used by outside caregivers, appellee is sometimes paid by the Medicaid program for her care
of Jacqueline.
In 2004, appellant sought modifications of the divorce decree and both parties filed contempt
motions against the other. Among other things, the trial court found, that because of Jacqueline’s
physical disabilities, child support would continue beyond her eighteenth birthday. However, the
parties agreed that appellant’s childsupport obligation for Jacqueline would abate as of May 1, 2004,
due to the government assistance she began receiving. Further they agreed that either party could
petition the court for reinstatement of child support if Jacqueline were ever denied government
assistance.
On March 20, 2006, appellant filed a motion to terminate child support and alimony effective
upon the youngest child’s high school graduation as provided in the 2002 divorce decree. Appellee
filed a counterpetition seeking both a continuation of and an increase in alimony. After a hearing,
the trial court entered an order finding that, among other things:
8. The substanial change in circumstances includes the following:
a.
b.
c.
d.
e.
f.
The Defendant’s (appellant) annual income increased by at least $10,000 since the
entry of the Divorce Decree and the Plaintiff’s (appellee) annual income increased by
at least $5,000 since the entry of the Divorce Decree.
The Defendant (appellant) received a $30,000 bonus from his employer.
The child support for Jacqueline has been abated. The Plaintiff (appellee) anticipated
at the time of the divorce that she would be receiving child support payments to assist
in Jacqueline’s care and to provide her a home. Plaintiff (appellee) is not receiving
child support payments to assist her in the care of Jacqueline, who is an adult and who
is in need of care because of her disability.
Jacqueline is attending college.
Defendant (appellant) is not paying any child support for Jacqueline and therefore has
a higher level of income than he anticipated at the time of the divorce.
Plaintiff (appellee) provides a substantial amount of care for Jacqueline.
7
7
CA061417
g.
Either of the parties could have chosen to provide the care for their adult daughter,
who is in need of substantial care, however, the party who provided the care for
Jacqueline was Plaintiff (appellee).
The trial court further found that even though appellee has a male friend in the house a
substantial amount of time who does not pay expenses, he nonetheless contributes to the home by
assisting appellee with lifting Jacqueline and other tasks. The trial court also found that it was not
in Jacqueline’s best interest for the appellee to move from her current residence, and that Jacqueline
has a total inability to care for herself. The trial court considered the tax effects of the alimony
payments on both parties, and found that appellant’s income was $1,184.55 per week and appellee’s
income was $512 per week. The trial court then awarded alimony to the appellee in the amount of
$1150 per month effective June 1, 2006, and awarded attorney’s fees to appellee in the amount of
$3000.
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. Harvey v.
Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988). Modification of an award of alimony must be based
on a change of circumstances of the parties. Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209
(1998). The burden of showing a change in circumstances is always upon the party seeking the
change in the amount of alimony. Hass v. Hass, 80 Ark. App. 408, 97 S.W.3d 424 (2003). Changes
in circumstances are not material if they were contemplated at the time of the original award. Id.
The primary factors to be considered in changing an award of alimony are the needs of one
party and the ability of the other party to pay. Parker v. Parker, 97 Ark. App. 298, __ S.W.3d __
(2007). Secondary factors that may also be considered include: (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 parties; (5) the extent and
8
8
CA061417
nature of the resources and assets of each of the parties; (6) the amount of each party’s spendable
income; (7) earning ability and capacity of both parties; (8) the property awarded to each party; (9)
the disposition of the homestead or jointly owned property; (10) the condition of health and medical
needs of the parties; (11) the duration of the marriage. Delacey v. Delacey, 85 Ark. App. 419, 155
S.W.3d 701 (2004). Each case is to be judged upon its own facts. Id. Discretion is vested in the trial
judge, and we will not reverse absent an abuse of discretion. Id.
The only findings made by the trial court in paragraph eight concerning the parties is that
appellant’s and appellee’s income both increased and that appellant received a onetime bonus from
his employer. The other findings use the term “child support” or refer specifically to Jacqueline. The
finding under paragraph nine is that appellee has a male friend in the house who does not pay
expenses. None of these findings present a change in circumstances that warrants an extension of
appellant’s alimony obligation.
The majority focuses on the fact that appellant has had an increase of income. The fact that
appellant enjoys a greater income is not a material change in circumstances. An increase in a payor’s
income alone does not warrant an increase in alimony. See Parker v. Parker, 97 Ark. App. 298, ___
S.W. 3d ____ (2007).
None of the other findings that were made by the trial court about Jacqueline were
unexpected, and therefore, would not support an increase in alimony. The child support for
Jacqueline was abated by agreement of the parties so that she could obtain government assistance.
The fact that Jacqueline needs additional assistance was also expected, which is why the trial court
extended child support for Jacqueline past her eighteenth birthday. Neither the fact that Jacqueline
needs a handicappedaccessible house nor that appellee is her primary caregiver is a change of
9
9
CA061417
circumstances. These factors existed in 2002 at the time of the divorce as well as in 2004 when the
modification was entered.
Further, the fact that Jacqueline now attends college does not constitute a change in
circumstances. The fact that she spends the majority of her time living on campus actually reduces
the appellee’s daily burden. The abatement of child support in exchange for the government
assistance was agreed to by the appellee so it should not be considered a changed circumstance. If
anything, it supports the notion that the award is for Jacqueline’s benefit, and is not alimony.
All of the factors set out by the court in support of a material change in circumstances are
circumstances concerning Jacqueline. These factors support the trial court’s earlier finding that
Jacqueline’s child support should continue. However, the trial court and the majority call this
increase alimony, even though it is very clearly child support based on Jacqueline’s needs, and not
appellee’s.
As I would find that the trial court was clearly erroneous in finding a change in circumstances,
a reversal on the attorney’s fees issue would also be necessary.
GRIFFEN, GLOVER, and MILLER, J.J., agree.
WENDELL GRIFFIN, Judge, dissenting.I fully join Judge Gladwin’s dissenting opinion.
Nonetheless, I write separately to further expose the obvious factual and legal gaps in the decision
announced by the majority opinion.
I would reverse the trial court’s order because appellee, Wendy Bettis, failed to show
a change of circumstances warranting an increase and extension in alimony. In stating that “there was
only one issue in this case – whether Wendy was entitled to alimony,” the majority precisely pinpoints
the flaw in its own analysis – it repeats and compounds the trial court’s error in treating Wendy’s
10
10
CA061417
request for increased alimony to pay her mortgage due to her reduction in child support as anything
other than a guise for an increase in child support.
Wendy requests alimony – not child support – until her adult disabled daughter,
Jacqueline Bettis, is able to live independently, but admitted that she does not know whether
Jacqueline will ever be able to do so. Hence, the trial court’s order essentially obligates the father,
Victor Bettis, to pay alimony as long as Jacqueline, a college student who lives outside the home most
of the time, resides with Wendy in the current home. In citing to Wendy’s ability to pay the mortgage
as a “significant” factor in affirming the trial court’s order, the majority vividly demonstrates that its
decision is based on Jacqueline’s needs, not Wendy’s. In short, the majority converts child support
into alimony.
It is true that Victor has enjoyed a $10,000 annual increase in his salary, whereas
Wendy’s salary has increased by only $5100 during that same period of time. However, even
considering Victor’s increase in income, there are no factors supporting that an increase in alimony
is warranted. An increase in a payor’s income, alone, does not warrant an increase in a alimony. See
Parker v. Parker, 97 Ark. App. 298, ___ S.W. 3d ___ (2007). Nor does the fact that Victor now
enjoys a “greater” income because his childsupport obligation has abated, an increase that will
2
necessarily result whenever a payor’s childsupport obligation abates.
The majority additionally cites as changed circumstances warranting an increase in
alimony only the following facts: Wendy did not anticipate that Jacqueline’s child support would be
abated so that Jacqueline could receive government benefits or that Jacqueline would be able to
attend college. The majority goes even farther and boldly states that these facts alone demonstrate
2
Victor received a $30,000 bonus prior to the entry of the 2004 order from which no child
support or alimony was paid, but the trial court addressed the bonus issue in the 2004 decree,
stating that Wendy would receive 15% of any future bonus as child support.
11
11
CA061417
a significant change in circumstances warranting an increase in alimony. This assertion is plainly
belied by the record.
Although Wendy now cites to the abatement of Jacqueline’s child support as a
changed circumstance, her request for increased alimony, in fact, was based on the abatement of
Evan’s child support when he graduated from high school. Wendy has known since the original
decree was entered in 2002 that her alimony would cease in 2006 when Evan was scheduled to
graduate from high school. Thus, the abatement of Evan’s child support cannot constitute a changed
circumstance that warrants an increase in alimony. If that is so, every alimony payee can petition for
greater alimony whenever childsupport payments cease. If the majority intends for that to be the
law, it should say so.
Further, the abatement of Jacqueline’s child support does not constitute a changed
circumstance warranting an increase in alimony. The trial court accounted for the special
circumstances of Jacqueline’s physical condition in awarding child support past her eighteenth
birthday; the parties did so in setting up a special account to cover Jacqueline’s needs that are not met
by her government benefits. The original decree and the 2004 decree stated that Jacqueline’s child
support would extend beyond her eighteenth birthday; however, the 2004 order abated Jacqueline’s
child support as of May 1, 2004, and provided that child support could be reinstated if Jacqueline was
denied governmental benefits. Wendy has never filed a petition to have Jacqueline’s child support
reinstated. Wendy agreed to abate child support and, Jacqueline’s disabilities notwithstanding, the
majority opinion does not explain how – or why – a party should be allowed to mount a collateral
attack on her own agreement to abate child support to justify an increase in alimony.
Plainly, Jacqueline is not without recourse to meet her special needs because the
parties have been wellaware of her needs since her infancy and have provided a means – other than
12
12
CA061417
child support or alimony – to meet those needs. The majority opinion does not mention that the
parties agreed in the 2004 order to establish a joint account for Jacqueline’s expenses “over and
above any governmental assistance she receives,” with Victor paying twothirds of the expenses, and
Wendy paying onethird. The initial amount to be paid was $250 per week, and either party is
permitted to petition the trial court to modify the amount. Notably, this provision is not conditioned
on the receipt of child support or alimony. The 2004 order further stated, “The parties anticipate
that they may need to fund the account beyond graduation from college due to Jacqueline’s
disability.” Wendy does not assert that this provision is inadequate to meet Jacqueline’s current
needs. She has never petitioned the court to modify this term of the order. Instead, she asks for an
3
unwarranted increase in alimony.
It is true that the parties did not anticipate that Jacqueline would be able to attend
college. However, simply because a circumstance was unanticipated does not justify an increase in
alimony. Glaringly absent from the majority’s opinion is any explanation linking Jacqueline’s college
attendance to Wendy’s entitlement to increased alimony. The fact that Jacqueline attends college
does not warrant an increase in alimony because Jacqueline’s financial needs for college are either
paid by scholarships or by Jacqueline herself. There was no evidence that Wendy incurred any
expenses as a result of Jacqueline attending college. In fact, Wendy testified that the only expenses
3
Neither the fact that Jacqueline needs a handicappedaccessible home nor Wendy’s
position as Jacqueline’s primary caretaker constitutes a changed circumstance because those
circumstances existed before the parties divorced. In fact, Wendy devotes less time to
Jacqueline’s care than when the decree was entered because then, she was required to regularly
assist Jacqueline during week nights when her daughter was in high school. Now, while
Jacqueline is away at college, Wendy is required to only occasionally assist her daughter during
the week. Further, Wendy’s boyfriend, who contributes no financial support but assists with
Jacqueline, lives with Wendy “full time.” In addition, during at least part of the summer, a
caretaker lives with them to assist with Jacqueline’s needs.
13
13
CA061417
she incurred relating to Jacqueline were household expenses, which cannot be attributed to the fact
that Jacqueline attends college (and which, in any event, are presumably lessened because Jacqueline
no longer lives with Wendy fulltime, as she did when the parties were divorced). It is inconceivable
that Wendy’s alimony should be increased merely because her adult daughter attends college and fully
pays her own expenses related thereto. While Wendy does occasionally assist Jacqueline with her
course work, the majority does not explain how that fact entitles Wendy to increased alimony.
I am sympathetic to Jacqueline’s needs and special circumstances. However, the
means by which those needs should be addressed is not an increase and extension of alimony to her
mother. While Wendy laudably keeps Jacqueline at home, she is not legally entitled to receive
alimony for doing so. Nor is Victor legally obligated to pay alimony to assure that Wendy remains
able to pay her mortgage, any more than any other payor is obligated to ensure that a payee is
financially able to afford the marital home once the children reach majority.
The majority opinion provides no guidance at all to trial judges or litigants about how
its decision will be applied in other alimony cases. Thus, it is impossible to know, let alone reasonably
predict, whether trial judges will be upheld if they grant requests for increased alimony in similar
situations, different situations, or if this case is somehow a special phenomenon in the law. The
majority opinion cites no decision by the Arkansas Supreme Court that is even remotely analogous
to the unprecedented result in this case. As much as one may admire the concern expressed for
Jacqueline in the majority opinion, the decision is an unwarranted departure from the wellestablished
principles our courts have followed for awarding alimony.
Accordingly, I would reverse the trial court’s order increasing and extending Wendy’s
alimony.
14
14
CA061417
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.