Benn v. Benn

Charlotte Nancy BENN v. Richard K. BENN

CA 96-868                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                  Opinion delivered May 7, 1997


1.   Divorce -- delay in pursuing rights to obtain judgment on
     past-due support does not prevent one from seeking a judgment.
     -- The mere fact one delays pursuing rights to obtain a
     judgment on past-due support does not prevent one from seeking
     a judgment.

2.   Divorce -- appellant unsuccessfully pursued alimony due her --
     judgment for arrears affirmed. -- Where there was no agreement
     between the parties to reduce or terminate appellant's right
     to alimony, but instead the delay was simply the result of
     frustration by another state's laws, and the appellant had no
     less than three judgments against appellee since the time they
     were divorced, including a July 1986 judgment, which was still
     unsatisfied at the time of the hearing, the appellate court
     affirmed the judgment for arrears.

3.   Divorce -- termination of alimony allowed only upon showing of
     changed circumstances -- burden of proof and factors on
     review. -- The burden of showing a change of circumstances is
     on the party seeking a modification of alimony payments; 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; each case is to be judged upon its own
     facts; discretion is vested in the chancellor, and the
     appellate court will not reverse absent an abuse of
     discretion.

4.   Appeal & error -- chancery cases reviewed de novo
     -- clearly erroneous standard used for reversal. -- The
     appellate court reviews chancery cases de novo and reverses
     only upon a finding that the chancellor's decision is clearly
     erroneous.

5.   Divorce -- insufficient evidence of change in circumstances to
     warrant termination of alimony -- chancellor's order
     terminating alimony reversed. -- Where appellee did not
     present evidence of any changes that had occurred since a
     previous order modified the amount of alimony he was to pay
     and, in fact, appeared to be in better financial shape, and
     where, conversely, appellant was in worse financial condition
     after sending the parties' daughter through college,
     experiencing reduced earnings in her interior-design business
     and suffering from breast cancer, the appellate court found no
     material change in circumstances that would justify
     termination of alimony; it was clearly against the
     preponderance of the evidence to terminate alimony and that
     portion of the chancellor's order which did so was reversed.


     Appeal from Sebastian Chancery Court; Warren Kimbrough,
Chancellor; reversed on appeal; affirmed on cross-appeal.
     Robert S. Blatt and Phillip J. Taylor, for appellant.
     Bethell, Callaway, Robertson, Beasley & Cowan, by: John R.
Beasley, for appellee.

     John B. Robbins, Chief Judge.
     Appellant Charlotte Nancy Benn appeals the termination of
appellee Richard Benn's obligation to pay her alimony.  Appellee
cross-appeals the finding of the chancellor that he owes back
alimony.  The history of the case reveals that the parties were
divorced in January 1981.  The property-settlement agreement
entered by the parties and incorporated into the divorce decree
provided that appellee would pay $600.00 per month in alimony to
appellant.  This was later reduced by a 1984 order to $500.00 per
month.
     On May 2, 1995, appellant filed a motion for contempt alleging
that appellee had failed to pay any alimony since the most recent
judgment for arrears of February 12, 1986.  Appellee countered with
a motion to terminate alimony.  In the chancellor's order of
December 28, 1995, he terminated the alimony obligation but found
that appellant was entitled to $33,931.50 in back alimony.  In
accordance with the five-year statute of limitations, he awarded
judgment for unpaid alimony accrued since May 2, 1990, a date five
years prior to May 2, 1995, when she filed her motion for contempt. 
Both parties now seek relief from this court.  We affirm the
judgment for arrearage, but reverse as to the termination of
alimony.
     Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980), is
cited by appellee as authority for estopping appellant from seeking
past-due alimony.  The opinion in that case states that, as a
general rule, an ex-spouse is entitled to all past-due alimony not
barred by the five-year statute of limitations, unless the ex-
spouse is barred by inequitable action in seeking judgment for the
arrearage.  Waiver or estoppel may be established if an ex-wife
sits upon her rights to recover an arrearage for such a long period
of time that her ex-husband acts in reliance upon that nonaction. 
Id.  There is no evidence in the record, though, that any
consideration was given by appellee or that any reliance was placed
on appellant's failure, or, more appropriately, inability, to
pursue back alimony for such a period of time.  In Bethell and the
other cases cited therein, it is important to note that there had
been an agreement between the ex-spouses to accept a reduction in
alimony or support for some period of time.  Such is not the case
in the Benns' situation.
     Another case, Cunningham v. Cunningham, 297 Ark. 377, 761 S.W.2d 941 (1988), is more on point with the case before us.  It
states that the mere fact one delays pursuing rights to obtain a
judgment on past-due support does not prevent one from seeking a
judgment.  In the case at bar, there was no agreement between the
parties to reduce or terminate appellant's right to alimony.  The
delay, per appellant's testimony, was simply the result of
frustration by another state's laws.  Appellee's reliance on
Bethell is misplaced.
     Appellant testified that she did not sit on her rights, but
had tried to execute on her 1986 judgment for unpaid alimony.  She
could not recover on the judgment in Texas, however, because Texas,
appellee's home state at the time, did not allow garnishment of
wages.  She renewed efforts to retrieve back alimony in May 1995
after learning that appellee had returned to Arkansas.  The
chancellor's order reflects this testimony:
     [T]here is testimony that the Plaintiff  was out of work
     for a period of time; lived in another state for a time
     due to employment; and, that Defendant endeavored to
     pursue her claim for alimony in the State of Texas where
     Plaintiff lived and worked, and was hampered by non-
     resident employers of the Plaintiff relative to
     garnishments.  That, however, Plaintiff made no payments
     of alimony during this period of time pursuant to the
     parties' agreement, or this Court's Order.

This directly contradicts appellee's argument that appellant should
be estopped to recover accrued alimony for sitting on her rights
for years until such time as appellee inherited monies.  Indeed,
the record reflects that appellant had no less than three judgments
against appellee since the time they were divorced, including the
July 1986 judgment, which was still unsatisfied at the time of the
hearing.  Thus, as to the judgment for arrears, we affirm.
     Appellant contends that the chancellor erred in terminating
future alimony, arguing that there was not a sufficient change of
circumstances upon which the chancellor could terminate alimony. 
We agree.  It is well settled that the burden of showing a change
of circumstances is on the party seeking a modification.  Bracken
v. Bracken, 302 Ark. 103, 787 S.W.2d 678 (1990).  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.  Id. 
Of course, each case is to be judged upon its own facts. 
Discretion is vested in the chancellor, and the appellate court
will not reverse absent an abuse of discretion.  Id.  From a review
of the evidence before the chancellor, we find that there was an
insufficient showing of a change in circumstances to warrant a
termination of alimony.
     The record reveals that appellant was unemployed at the
time of the hearing due to breast-cancer surgery and pending
chemotherapy and radiation treatment.  She also testified that
profits from her interior decorating business had declined
substantially, primarily due to increased competition.  Appellee
testified that he inherited over $250,000.00 in 1995 and that he
was gainfully employed at the time of the hearing, making twice the
money he was earning in 1984 when alimony was reduced.
     In support of a change of circumstances, appellee asserted
that he remarried in 1981, taking on a dependent wife and
stepchildren, and that the parties' younger child had reached
majority.  Appellee testified that he was hospitalized for eight
days at one point, and that his current wife had heart problems
which necessitated two hospitalizations, though no evidence or
testimony was elicited showing the dates of these events or their
cost to appellee.  Appellee testified that he had a zero or
negative worth until his mother died in February 1995, and that his
total income for 1994 was $75,753.00.  Appellee testified that he
guessed he earned about $35,000.00 in 1984, the year his alimony
was reduced to $500.00 per month.
     Appellant argues in response that appellee used his
remarriage, the majority of the parties' children, and a period of
unemployment as circumstances that entitled him to the 1984 ruling
that reduced his alimony obligation.  Only those changes in
circumstances occurring after the 1984 modification could support
a further modification.  Appellant argues that the changes in
circumstances that gave rise to the 1984 modification cannot again
be used to terminate alimony.  See Boyles v. Boyles, 268 Ark. 120,
594 S.W.2d 17 (1980).  Appellee has not presented evidence of any
changes that have occurred since the January 1984 order that have
worsened his circumstances.  In fact, he appears in better
financial shape, especially considering his inheritance of 
$263,517.35, subject to only $7,243.69 in inheritance taxes, and
steady employment.  Conversely, appellant is in worse financial
condition after sending the parties' daughter through college,
experiencing reduced earnings in her interior design business, and
suffering a current bout with breast cancer.  This court can see no
change in circumstances that would justify termination of alimony.
     In the portion of his order terminating alimony, the
chancellor stated:
     [I]t is this Court's considered opinion that it is in the
     best interest and welfare of these parties, and what is
     left of any family relationship, as well as based on the
     numerous changes of circumstances of each party that the
     alimony ordered paid by the Plaintiff to the Defendant
     herein should be fully and finally terminated, cancelled,
     and held for naught upon entry of this Order...so that
     all claims of either party against the other are hereby
     determined and concluded....
We find no material change in circumstance since the 1984
modification that would support a termination of alimony.  We
review chancery cases de novo and reverse only upon a finding that
the chancellor's decision is clearly erroneous.  We find that it
was clearly against the preponderance of the evidence to terminate
alimony and reverse that portion of the chancellor's order of
December 28, 1995, which did so.
     Reversed on appeal and affirmed on cross-appeal.
     Jennings and Rogers, JJ., agree.