Johnny Huggins v. Roxie Ann Huggins

DIVISION I

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE CA00-226

FEBRUARY 14, 2001

JOHNNY HUGGINS

APPELLANT AN APPEAL FROM THE VAN BUREN COUNTY CHANCERY COURT

v. [E97-339]

ROXIE ANN HUGGINS HONORABLE CHARLES E.

APPELLEE CLAWSON, JR., CHANCERY JUDGE

AFFIRMED

Johnny and Roxie Huggins were married on August 25, 1978, and separated on November 9, 1997. Following the entry of the divorce decree on October 4, 1999, a final disposition of both parties' request for alimony and an unequal division of property was determined by the trial court on October 26, 1999. Pursuant to the October 26 order, the trial court found, among other things, that the parties should equally divide appellant's disability payments from Woodmen of the World Life Insurance Society (Woodmen) and Monarch Life Insurance Company (Monarch), appellant's retirement and deferred compensation benefits, and the cash values of the parties' respective life insurance policies that accrued between the date of marriage and the date of divorce. The chancellor awarded solely to appellant his social security benefits and awarded appellee alimony of $400 per month for a period of three years. On appeal, appellant contends that the chancellor erred in: 1) awarding alimony to appellee; 2) awarding half of his disability benefits from Woodmen andMonarch to appellee; and 3) refusing to consider evidence that appellee did not make any contributions as a homemaker in determining the proper division of the disability payments. We affirm.

Chancery cases are reviewed de novo on appeal. Hoover v. Hoover, 70 Ark. App. 215, 16 S.W.3d 560 (2000). However, the appellate court will not reverse a chancellor's findings of fact unless they are clearly erroneous. Id. In reviewing a chancery court's findings, the appellate court gives due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000).

An award of alimony is not mandatory but is solely within the chancellor's discretion. Barker v. Barker, 66 Ark. App. 187, 992 S.W.2d 136 (1999). Unless the chancellor clearly abuses that discretion, the appellate court will not reverse. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 136 (1999). If alimony is to be awarded, it should be set at an amount that is reasonable under the circumstances. Holiway v. Holiway, 70 Ark. App. 240, 16 S.W.3d 302 (2000). 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 parties in light of the particular facts of each case. Id. The primary factors to be considered in awarding alimony are the need of one spouse and the ability of the other spouse to pay. Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1998).

During the parties' nineteen years of marriage, appellant worked for fifteen years as a state manager for Woodmen of the World Life Insurance Society. However, he is currentlyunable to work but receives monthly disability payments from Monarch Life Insurance Company and Woodmen. Appellant also receives social security benefits on a monthly basis and is projected to receive $2,532.27 per month in retirement benefits when he reaches the age of 65. Appellee, who is slightly past fifty years of age, was a homemaker throughout the majority of the marriage. In 1995, appellee became employed as a singer at the Dixie Dude Ranch in Texas, but quit her job in 1997 after the parties moved back to Clinton, Arkansas. In July of 1998, appellee began working part-time for Winter Tree, where she made $3,713 during the year of 1998. Although appellee is considered to be a talented artist and songwriter, the trial court found that she has not been able to produce a dependable source of income. The parties have no other sources of income.

At the hearing, the chancellor ordered the marital real estate and personal property to be sold, with the proceeds from the sale to be equally divided between the parties. The chancellor ordered that appellant's disability benefits "over and above" appellant's social security benefits, be equally divided between the parties. The remainder of the marital property was divided equally among the parties, with the exception of those items that were declared as non-marital property by the trial court.

In awarding alimony, the chancellor made the following findings:

I am going to order that he [appellant] will, for a period of three years beginning July 1, 1999, pay her [appellee] an amount of support in the amount of $400.00 a month and I am going to tell you why. The testimony was that she [appellee] is a healthy person. She is capable of employment. She has had some employment. She has some skills in art and in decorating and that sort of thing. However, they have yet, evidently, to producea dependable source of income. She has the art skills and has been exposed to computers. I would say that in that length of time, she can avail herself of training that is available at vo-tech schools in computer science, computer drafting, and things to use her art skills in conjunction with computer skills that she can acquire to start a new life. I am going to give her that opportunity. That will be the extent of any alimony.

After considering all of the appropriate factors, we cannot say that the chancellor abused his discretion in awarding appellee alimony. Although the evidence shows that appellant is currently disabled due to neck and heart problems and that appellee is a healthy and talented artist and songwriter, we note that there is also evidence that appellee has been a homemaker throughout the majority of the marriage and has no viable source of income, with the exception of those marital assets she received under the divorce decree. Even if appellee were to receive any profits from the copyrighted songs and poems she produced during the marriage, the trial court found and ordered that appellant was entitled to share in any proceeds derived from these items that were copyrighted prior to the date of divorce. Furthermore, appellant was exclusively awarded his social security benefits and he can anticipate retirement benefits accrued after the date of divorce. There is also evidence that if appellant's disability benefits were discontinued, appellant could work as a salesman for Woodman. For the reasons stated above, we conclude that the chancellor did not abuse his discretion in ordering appellant to pay $400 per month in alimony for three years.

Appellant's second and third points on appeal are so integrally related that they will be discussed together. Appellant contends that the chancellor erred in awarding half of his disability benefits to appellee primarily because appellee had not provided any services asa homemaker throughout the marriage. He argues that the trial court erred in refusing to consider evidence that appellee did not make any contributions as a homemaker in determining the proper division of the disability payments.

All marital property must be distributed equally under our divorce law unless the chancery court finds such a division to be inequitable. Ark. Code Ann. § 9-12-315 (a)(1)(A) (Repl. 1998); Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000). If he does make some other division, he must take into consideration those factors listed in Ark. Code Ann. § 9-12-315 (a)(1)(A) and state his reasons for such division in writing. Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 443 (1990).

Here, the chancellor found that an equal division of appellant's disability benefits was equitable. In so finding, the chancellor made the following comments regarding the unequal distribution of property as it relates to the contribution of a spouse:

I am of the opinion that the statute 9-12-315(A)(1)(a) parts (I) through (ix) control an unequal distribution of property. I'm also of the opinion that Warren v. Warren, 11 Ark. App. 58, is applicable to this situation where it talks about the distribution of property without regard to gender or fault. It seems to me that testimony that has been offered to this point goes to the issue of fault and would not come in under little Subparagraph 8, contribution of each party to the acquisition, preservation, or appreciation of marital property, including services as a homemaker and the federal tax consequences of the Court's division of the property. That's the next subpart. My belief is that - if the - that the converse of that doesn't necessarily follow that if you were a bad homemaker you get deducted or that if you were an extra good one that you get extra money. I think the provision that's included in that section of the statute indicates that while a person, whether man or woman, may not directly get out and earn money, that their service as ahomemaker during the term of the marriage is not to be discounted or completely ignored for the purposes of property division.

Based upon the evidence presented, we cannot say that the chancellor clearly erred in equally dividing appellant's disability payments. Although appellant has been the sole financial source of the parties' income during the marriage, the fact that one spouse made contributions to certain property does not necessarily require that those contributions be recognized in the property division upon divorce. May v. May, 340 Ark. 171, 8 S.W.3d 525 (2000). Further, this court has stated that where the chancellor did not abuse his discretion in failing to find that it would be inequitable to divide the marital property equally, he was not, therefore, required to consider the various factors enumerated in Ark. Stat. Ann. 34-1214 [now Ark. Code Ann. 9-12-315]. See Callaway v. Callaway, 8 Ark. App. 129, 648 S.W.2d 520 (1983).

For the reasons stated above, we affirm the chancellor's findings.

Affirmed.

Robbins, J., agrees.

Griffen, J., concurs.