Donna Bright v. Michael Bright

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION IV

DONNA BRIGHT,

APPELLANT

V.

MICHAEL BRIGHT,

APPELLEE

CA00-47

NOVEMBER 8, 2000

APPEAL FROM THE BENTON COUNTY CHANCERY COURT,

NO. E99-1025-2,

HON. DONALD R. HUFFMAN,

JUDGE

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Donna Bright appeals a decision of the Benton County Chancery Court that granted a divorce to appellee Michael Bright. For reversal she argues that the court erred in (1) granting Michael a divorce on the ground of general indignities; (2) refusing to award her separate maintenance; (3) finding that child support for their handicapped child should terminate when he reaches the age of eighteen; (4) computing child support; (5) awarding insufficient alimony; and (6) refusing to award her attorney's fees and costs. We find merit in argument four, and we reverse and remand on that point. Since the chancellor's actions on remand in recalculating child support may also impact the amount of alimony that may be appropriate, we also remand on point five. In all other respects the decision is affirmed. The parties were married in May 1978 and separated in May 1999. Michael isemployed by Wal-Mart Stores, Inc., and Donna is a science teacher at Gravette Junior High

School. At the time of the trial, their daughter, Stefanie, was fifteen, and their son, Christopher, was ten. Donna filed a complaint for divorce on June 4, 1999, alleging general indignities, and Michael filed a counterclaim on the same grounds. Donna later amended her complaint, seeking only separate maintenance. The chancellor awarded a divorce to Michael on his counterclaim and dismissed Donna's complaint for separate maintenance. The chancellor awarded custody of the children to Donna and, following the family-support chart, directed appellee to pay $246.50 per week in child support. He also awarded Donna alimony of $96 a week for five years and ordered Michael to provide health and dental insurance for the children. The marital property was divided, as were the debts, and each party was awarded his or her nonmarital property.

Chancery cases are reviewed de novo on appeal, McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000); Hoover v. Hoover, 70 Ark. App. 215,16 S.W.3d 560 (2000), but we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998); Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). The evidence on appeal, including all reasonable inferences therefrom, and the findings of fact by a judge must be reviewed in a light most favorable to the appellee. Looper v. Madison Guar. Sav. & Loan Ass'n, 292 Ark. 225, 729 S.W.2d 156 (1987). We will defer to the superior position of the chancellor to judge the credibility of witnesses. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997); Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996).

Grounds

Donna first argues that Michael failed to prove or corroborate his allegations that she had subjected him to general indignities, that many of the things he complained about occurred after he filed his counterclaim, and that he failed to amend his counterclaim pursuant to Ark. R. Civ. P. 15. To the contrary, the record shows that Donna took a large number of prescription drugs that affected her behavior, that she had squandered several thousand dollars, and that she had accused him of infidelity to his face and to his friends. Although some of this alleged conduct occurred after Michael filed his counterclaim, some occurred prior to the separation, and those are sufficient to support awarding Michael the divorce.

First, Donna's spending habits caused difficulty in the marriage long before Michael filed his counter-complaint. Further, a complaint or counterclaim can be amended to allege a ground for divorce that has arisen since the action was commenced. See Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ark. App. 1979), where we stated: "Regardless of the nature of the action, a party should be allowed to amend a pleading at any time as long as it does not prejudice his adversary." Id. at 904, 587 S.W.2d at 232.

Rule 15(b) of the Arkansas Rules of Civil Procedure states: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." This rule also provides that these amendments relate back to the date of the original pleading when the claim or defense arose out of the conduct, transaction, or occurrence set forth in the original pleading. Rule 15(b)does not require that the claims be pled in writing at the time the parties actually try the issues. This rule was applied in McKay v. McKay, supra, when the supreme court reversed the trial court's setting aside of an award of alimony because the wife's pleadings had not requested such an award. Here, it is apparent that throughout the proceedings below, the parties treated these issues as if they had been raised in the pleadings. Michael was not required to formally amend his counterclaim.

We now turn to Donna's argument that Michael failed to produce evidence to corroborate his allegations. Our courts have held that divorce is a creature of statute and can be granted only when statutory grounds have been proved and corroborated. Oates v. Oates, 340 Ark. 431, 10 S.W.3d 861 (2000). In order to grant a divorce on the grounds of general indignities, the court must find that the offending spouse is guilty of conduct amounting to rudeness, contempt, studied neglect, or open insult, and that the conduct has been pursued so habitually and to such an extent as to render the conditions of the complaining party so intolerable as to justify an annulment of the marriage bonds. Price v. Price, 29 Ark. App. 212, 780 S.W.2d 342 (1989). This finding must be based on facts testified to by the witness, and not upon beliefs or conclusions, in order that the court may be able to determine whether those acts and conduct are of such a nature to justify the conclusions reached by the witness. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984). In contested cases where corroboration has not been waived but there is no intimation of collusion, the corroborating evidence may be relatively slight. Hilburn v. Hilburn, 287 Ark. 50, 696 S.W.2d 718 (1985); Gunnell v. Gunnell, 30 Ark. App. 4, 780 S.W.2d 597 (1989). However, regardless ofwhether a divorce is contested or uncontested, the injured party must always prove his grounds for divorce; our statutory law does not allow a spouse to waive proof of grounds. Harpole v. Harpole, supra. Nor has there been any relaxation of our rule requiring that the ground of indignities to the person be proved by evidence of specific acts and conduct. Harpole, supra, which cites an unbroken line of cases, makes this clear. Gunnell, supra.

Donna testified that she has a painful and fatiguing condition known as fibromyalgia, which requires her to take a lot of medication. Michael testified that, for the past three years, when he came home from work around 6 or 7 p.m., Donna would be lying down. Her pattern was to get up between 9 and 10 p.m. to eat and take more medication, then go back to bed. According to Michael, Donna's eyes were frequently glassy, her speech was slurred, she appeared drunk, she had mood swings, their house was always in disarray, food was left cooking too long on the stove, and clothes were left in the washing machine for days. He stated that Donna seemed oblivious to her surroundings and sometimes she indicated that she was experiencing double vision. He also said that there was a lot of quarreling between Donna and Stefanie and between Stefanie and Christopher. Michael explained that, at the time these things were happening, he was unaware of how many drugs Donna was taking. Donna's pharmacy records, which were obtained after the cross-complaint was filed, were admitted into evidence. They revealed that she was taking muscle relaxers, sleeping pills, barbiturates, and tranquilizers in large quantities. Also, the principal of the school where Donna taught testified that, during the 1998-99 school year, her job performance seriously deteriorated. This evidence adequately corroborated Michael's testimony that his wife'sbehavior was adversely affected by her overuse of prescription drugs.

Michael also testified that Donna's spending habits had caused trouble in the marriage long before they separated. For instance, they had obtained a home equity loan to pay off an $18,000 debt on their credit cards; however, even after he took the credit cards away from Donna, she continued to use the account numbers without his knowledge to incur charges through mail-order catalogs. There was also persuasive evidence that Donna was not fiscally responsible, and often spent money frivolously or unaccountably. For example, Michael testified that while they were striving to reduce their credit-card debt, Donna, without his knowledge, borrowed $2,200 in the summer to purchase a vacation that was not to be taken until December. Documentary evidence was introduced to show that from the date of their separation until the hearing three months later, Donna had spent over $34,000. Financial irresponsibility of a spouse has been recognized as an indignity constituting grounds for divorce. Breazeale v. Breazeale, 248 Ark. 437, 451 S.W.2d 865 (1970); Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

The evidence adequately established and corroborated Michael's claim of general indignities, and the chancellor was not clearly erroneous in granting Michael a divorce.

Separate Maintenance

Donna argues that the chancellor erroneously denied her claim for separate maintenance. Separation and an absence of fault are the only requirements for separate maintenance. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979); Hill v. Rowles, 223 Ark. 115, 264 S.W.2d 638 (1954); Kesterson v. Kesterson, 21 Ark. App. 287, 731 S.W.2d 786(1987). Since the chancellor found grounds for divorce on the counterclaim, and since we conclude that such finding is not clearly erroneous, it necessarily follows that Donna was not without fault.

Child Support

Donna's next argument is that the chancellor improperly declined to award child support past age eighteen for their ten-year-old disabled son. The decree specified that Michael's child-support obligation shall continue "until terminated on the occurrence of any event listed in Ark. Code Ann. Section 9-14-237(a)(1) [(Supp. 1999)]," which provides that an obligor's duty to pay child support shall automatically terminate by operation of law when the child reaches eighteen years of age or should have graduated from high school, whichever is later, or when the child is emancipated, marries, or dies, unless the court order specifically extends child support after such circumstances. Donna argues that, because of Christopher's mental and physical handicaps, the chancellor should have continued his child support past the age of eighteen. Christopher has a full scale IQ of 84 and attends special education classes; he has a stunted left lung with the result that he is prone to develop pneumonia; he has a diaphragmatic hernia and asthma; he has intermittent explosive disorder; and he requires physical and occupational therapy for apraxia, which is the loss or impairment of the ability to execute complex coordinated movements without impairment of the muscles or senses, and which affects his gross and fine motor skills. Webster's New Complete Medical Dictionary 43 (1996).

The chancery court has the unquestioned power to alter the allowance of child supportat any time in accordance with the circumstances of the particular case. See Pierce v. Pierce, 268 Ark. 864, 596 S.W.2d 364 (Ark. App. 1980). The statute provides that, notwithstanding the events that mandate an automatic termination, a chancery court may specifically extend the support if the circumstances warrant. Dr. Steven Dollins, and Christopher's guardian ad litem, John Gross, each testified that it is impossible to predict what Christopher will be able to do when he reaches age eighteen and whether he will be able to live an active life. It would be premature to award additional support for this disabled child before it is known how handicapped he will be at that age. There was evidence that he may even be able to secure and maintain employment by that time. Therefore, the chancellor's failure to award extended child support at this time on account of Christopher's physical and mental problems is not clearly erroneous.

Donna also argues that the chancellor should have awarded more child support because he directed her to take Stefanie to a psychiatrist and because of Christopher's special needs. In setting the amount of support, the chancellor must apply the payor's income to the family-support chart. In re Administrative Order No. 10: Arkansas Child Support Guidelines, 331 Ark. 581 (1998). The family-support chart creates a rebuttable presumption that the amount of child support set forth therein is the correct amount of child support to be awarded, and such amount can be disregarded only if the chancery court makes a specific written finding that application of the support chart is unjust or inappropriate. Although the amount of child support a chancery court awards lies within the sound discretion of the chancellor and will not be disturbed on appeal absent an abuse of that discretion, referenceto the family-support chart is mandatory. Guest v. San Pedro, 70 Ark. App. 389,19 S.W.3d 62 (2000); Office of Child Support Enforcement v. Pittman, 70 Ark. App. 487, 20 S.W.3d 426 (2000); Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999); see also Ark. Code Ann. § 19-14-106(a)(1)(A) (Repl. 1998).

Here, the chancellor set the amount of child support Michael was ordered to pay by reference to the chart. In addition, he ordered Michael to provide health and dental insurance for the children and to equally share in the cost of services not covered by insurance. Additionally, the principal of Christopher's school testified that occupational, physical, and speech therapy are provided by the school to Christopher free of charge. Without any evidence of how much added expense would result from the children's special needs, we cannot say that the chancellor abused his discretion in setting Michael's child-support obligation at the amount presumed to be correct by the child-support chart.

Fourth, Donna argues that the chancellor erred in failing to award, as child support, a percentage of Michael's annual bonus. We agree with Donna on this point. From our examination of the abstract, it appears that although the chancellor stated in his remarks following the trial that Michael's child-support obligation should be determined on the basis of all of his income, including his annual bonus, the divorce decree used only Michael's basic weekly take-home salary as the basis of setting the amount of child support. There is no doubt that Michael's annual bonus constitutes income for purposes of child support. Section II of the child-support guidelines defines "income" as "any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages,salaries, commissions, bonuses, worker's [sic]compensation, disability...." In Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000), the Arkansas Supreme Court discussed bonuses and held that the chancellor could not award a percentage of the father's future bonus income; however, the bonus, once given, becomes a part of that year's income. It explained:

It is undisputed that the bonus income is income for child-support purposes under the definition of income contained in Administrative Order Number 10. However, James challenges the court's ability to presently order payments based upon indefinite, conditional income. Specifically, he contends that the court cannot "set and establish a sum certain dollar amount of support" where the receipt of the bonus is contingent upon the profitability of the clinic and the amount, if any, cannot presently be determined. We agree and reverse. ...

Calculating support from bonus income, like other forms of income, should be based upon a proper showing of past earnings and demonstrated future ability. For instance, with regard to self-employed payors, support is calculated based upon the previous 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 upon property, life-style, etc. Administrative Order Number 10 section III(c). Here, there is no history of bonus income, and the trial court acknowledged the uncertainty of whether James would even qualify for a bonus in the foreseeable future given the business-expense calculation that would be required.

341 Ark. at 600, 19 S.W.3d at ___.

Michael testified that his annual bonus is not guaranteed; it is based upon his employer's profits and can range from zero through twenty percent of his annual salary. The annual bonus, if any, is received in the calendar year following the year to which it is applicable. In 1999, appellee received a bonus of $9,286.55; in 1998, he received $8,212.62; and in 1997, he received $4,620.28. While the chancellor may not allocate a percentage of Michael's future bonuses as child support, once Michael has received his bonus, it is incomefor the year in which it is received and must be included when the court is calculating the payor's total income in applying the family-support chart. Since the chancellor failed to include the $9,286.55 bonus that Michael received in 1999 in arriving at the amount of his income for that year, we reverse and remand for the chancellor to take into consideration the amount of Michael's bonus for 1999 in recalculating the amount of child support Michael must pay. The amount so calculated shall be retroactive to September 9, 2000, being the date that child-support payments were scheduled to commence under the original decree of divorce.

Alimony

Donna also argues that the chancellor erred in awarding her insufficient alimony. A chancellor's decision in regard to alimony is a matter that lies within his sound discretion and will not be reversed on appeal absent an abuse of that discretion. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993); Holaway v. Holaway, 70 Ark. App. 240, 16 S.W.3d 302 (2000); Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1998). 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. Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998). If alimony is awarded, it should be set at an amount that is reasonable under the circumstances. The primary factors that a chancery court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse's ability to pay. Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996), but certain secondary factors may be considered in setting the amount ofalimony. Barker v. Barker, 66 Ark. App. 187, 992 S.W.2d 136 (1999). See, e.g., Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980); Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997).

A chancery court should also consider the following secondary factors: (1) the financial circumstances of both parties; (2) the amount and nature of the income, both current and anticipated, of both parties; (3) the extent and nature of the resources and assets of each of the parties; and (4) the earning ability and capacity of both parties. Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998).

As we explained in Mitchell v. Mitchell, 61 Ark. App. at 91, 964 S.W.2d at 412, "[n]either 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." In setting the amount of alimony, the chancellor may consider a range of acceptable alternatives. Id.

Donna contends that her physical problems, which include fibromyalgia, migraine headaches, and asthma, justified a larger award of alimony. Considering their respective incomes, the child support, the alimony, and the income from the substantial cash assets Donna will receive from the division of the marital property, and considering that Michael is not without serious health concerns of his own (he was treated for colon cancer several years ago and continues to suffer from Crohn's disease), we cannot say the chancellor's award was clearly erroneous. However, in light of our reversal and remand of this matter for the chancellor to include Michael's 1999 bonus in calculating the proper amount of childsupport, and since the recalculation of child support may impact the amount of income available for the payment of alimony, we also remand for the chancellor to reconsider his award of alimony.

Attorney's Fees

Finally, Donna argues that the chancellor should have directed Michael to pay her attorney's fees. Under Ark. Code Ann. § 9-12-309 (Repl. 1998), the chancellor may award attorney's fees to either party. A chancellor has considerable discretion regarding whether to award attorney's fees and the amount thereof in a divorce case, and his decision as to attorney's fees will not be disturbed on appeal absent an abuse of discretion. McKay v. McKay, supra; Burns v. Burns, supra; Miller v. Miller, 70 Ark. App. 64, 14 S.W.3d 903 (2000). We do not think that the chancellor abused his discretion in failing to make an award of attorney's fees to Donna.

Appellant has submitted a motion requesting attorney's fees and costs incurred in connection with this appeal. While it is clear that we have the authority to award attorney's fees on appeal in domestic relations cases, a party who prevails on an appeal is not entitled to an award of fees as a matter of right (just as the chancellor is not required to award fees at the trial level). The decision whether to award fees at the appellate court level is based on equitable considerations. Considering that we have affirmed the chancellor in large part, reversing and remanding only for the purpose of recalculating the amount of child support and reconsidering the amount of alimony, and considering that Donna is to receive substantial cash assets from the division of property provided by the chancellor, we do notthink it is appropriate to award attorney's fees and costs in this case.

Affirmed in part; reversed and remanded in part.

Robbins, C.J., and Neal, J., agree.