Jack C. Mitchell v. Martha Mitchell

Jack C. MITCHELL v. Martha MITCHELL

CA 97-936                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
                Opinion delivered March 18, 1998



1.   Divorce -- alimony -- award within chancellor's discretion. -- An award
     of alimony is not mandatory but is solely within the trial
     court's discretion.  

2.   Divorce -- alimony -- amount within chancellor's discretion. -- If
     alimony is awarded, it should be set at an amount that is
     reasonable under the circumstances; the amount of alimony
     awarded lies within the sound discretion of the chancellor; in
     setting the range of alimony, the chancellor may consider a
     range of acceptable alternatives.
 
3.   Divorce -- alimony -- purpose. -- The purpose of alimony is to
     rectify, insofar as is reasonably possible, the frequent
     economic imbalance in the earning power and standard of living
     of the divorced husband and wife.

4.   Divorce -- alimony -- factors considered in awarding. -- The primary
     factors to be considered in awarding alimony are the need of
     one spouse and the ability of the other spouse to pay; many
     factors are considered in setting the amount of alimony;
     ordinarily, fault or marital misconduct is not a factor in an
     award of alimony.
5.   Divorce -- alimony -- when award reversed. -- The chancellor's award
     of alimony will not be reversed absent an abuse of discretion.

6.   Divorce -- alimony -- amount of award not reduced to mathematical formula.
     -- Neither the court of appeals nor the supreme court has ever
     attempted to reduce the amount of alimony to a mathematical
     formula; the need for flexibility outweighs the corresponding
     need for relative certainty.

7.   Divorce -- alimony -- amount was excessive -- award modified. -- After
     considering all the appropriate factors, the appellate court
     concluded that the amount of alimony awarded was excessive;
     under the circumstances, and on de novo review, the appellate
     court may set the amount of alimony; thus, the court modified
     the award, setting the monthly amount at a lower figure.  


     Appeal from Washington Chancery Court; Thomas F. Butt,
Chancellor; affirmed as modified.
     Burke & Eldridge, P.A., by: Thomas J. Olmstead, for appellant.
     Mashburn & Taylor, by: Michael H. Mashburn, for appellee.

     John E. Jennings, Judge.
     The only issue raised on appeal in this divorce case is
whether the award of alimony was excessive.  We hold that it was
and modify the award.
     Appellant Jack Mitchell and the appellee, Martha Mitchell,
married in 1972.  A daughter was born in 1989.  By October 1996,
Mr. Mitchell had become romantically involved with another woman
and moved from the parties' home.  Mrs. Mitchell sued for divorce. 
     The parties entered into a property settlement agreement,
dividing their property equally.  After a hearing the court granted
Mrs. Mitchell the divorce, approved the property settlement
agreement, awarded $897.00 per month as child support, and awarded
$3,000.00 per month as alimony.
     An award of alimony is not mandatory, but is solely within the
trial court's discretion.  Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997).  If alimony is awarded, it should be set at an
amount that is reasonable under the circumstances.  Mulling v.
Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996).  The amount of alimony
awarded lies within the sound discretion of the chancellor.  See
Ducharme v. Ducharme, 316 Ark. 482, 872 S.W.2d 392 (1994).  It
follows that in setting the amount of alimony, the chancellor may
consider a range of acceptable alternatives.
     The purpose of alimony is to rectify, insofar as is reasonably
possible, the frequent economic imbalance in the earning power and
standard of living of the divorced husband and wife.  Drummond v.
Drummond, 267 Ark. 449, 590 S.W.2d 658 (1979).  The primary factors
to be considered are the need of one spouse and the ability of the
other spouse to pay.  Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990).  Many factors are considered in setting the amount of
alimony.  Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). 
Ordinarily, fault or marital misconduct is not a factor in an award
of alimony.  Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315
(1982).  The chancellor's award of alimony will not be reversed
absent an abuse of discretion.  Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).  
     In the case at bar, the parties had been married for twenty-
four years and both are in good health.  The parties equally
divided almost $400,000.00 in total assets.  
     Mr. Mitchell has a master's degree in hospital administration
and works as a hospital administrator.  His gross income at the
time of trial was approximately $129,000.00 per year with a net
take-home pay of $83,000.00.  Mrs. Mitchell has a master's degree
in food and nutrition and has worked as a hospital dietician. 
Since the birth of the parties' daughter, Mrs. Mitchell has stayed
at home and earned approximately $1,300.00 per year.  At the time
of the divorce she was not employed.
     During the pendency of the divorce, Mrs. Mitchell received
$3,000.00 per month as support for herself and her daughter.  At
trial she submitted a list of expenses totaling $3,700.00 per
month.  This included anticipated future expenses which the
chancellor declined to consider, leaving a total of $2,800.00 as
the monthly expenses for Mrs. Mitchell and the child.  
     Neither this court nor the supreme court has ever attempted to
reduce the amount of alimony to a mathematical formula. 
Presumably, it has been thought that the need for flexibility
outweighs the corresponding need for relative certainty.  
     After considering all the appropriate factors, we conclude
that the amount of alimony awarded was excessive.  Under these
circumstances, and on de novo review, we may set the amount of
alimony.  See Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315
(1982); Dingledine v. Dingledine, 258 Ark. 204, 523 S.W.2d 189
(1975).  In the case at bar we find that alimony should be set at
$2,100.00 per month.  
     Affirmed as modified.
     Pittman and Stroud, JJ., agree.