Joe David Williams v. Evelyn Renee Williams

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE WENDELL L. GRIFFEN

DIVISION I

CA00-703

February 28, 2001

JOE DAVID WILLIAMS AN APPEAL FROM POPE COUNTY

APPELLANT CHANCERY COURT [E99-359]

V. HON. RICHARD E. GARDNER, JR.,

CHANCERY JUDGE

EVELYN RENEE WILLIAMS

APPELLEE AFFIRMED

After nineteen years of marriage, the parties to this action were divorced by decree on March 9, 2000. Joe David Williams appeals the chancellor's award to Evelyn Renee Williams of $936 per month as alimony until her remarriage, death or a showing of a substantial change in circumstances. For his appeal, appellant argues that the chancellor's award of "alimony for life," is clearly erroneous. We disagree with appellant's characterization of the chancellor's decision and affirm.

On May 12, 1999, Mr. Williams filed a complaint for divorce based on general indignities in which he prayed for a divorce, adjudication of property rights, costs and any other proper relief. Mrs. Williams counterclaimed, seeking custody of the parties' threechildren, child support, alimony, attorney fees and costs, and all other proper relief. At the time of the divorce, the parties were forty years of age and each had earned college credit. At the final hearing, Mr. Williams testified that he worked for Entergy as a control room supervisor, and had worked for the company eighteen years. He testified that in 1999 he earned an annual net pay of $52,717.72. Mrs. Williams testified that she did not work for most of the marriage but began working in December 1998 for Regions Bank as a customer service representative. She testified that Regions was her first full time job, and that she currently earned $8 per hour. Mrs. Williams also testified that she could not survive financially without alimony because her monthly net income was $1,198.07 and her monthly bills were $2,159.41.

After hearing testimony from Mr. Williams, Mrs. Williams, and two of the parties' children, the court entered an order that granted Mr. Williams custody of the parties' teenage daughters, and granted Mrs. Williams custody of the parties' son. The court awarded child support to both parties and divided the parties' property and debts. It also ordered Mr. Williams to pay $936 per month in alimony until Mrs. Williams remarried or died, or upon the showing of a substantial change in circumstances. The court stated that it based its decision to award alimony upon the length of the marriage, the difference in earnings, the parties' earning capacity and other factors in the case. Appellant only appeals the portion of the decree that awarded alimony.

Arkansas Code Annotated section 9-12-312(b) (Repl. 1998), provides that a chancellor may award alimony

under proper circumstances, to either party in fixed installments for a specified period of time, subject to the contingencies of the death of either party, the remarriage of the receiving party, or such other contingencies as are set forth in the award. . . .

An award of alimony is not mandatory; rather the decision to award alimony rests within the sound discretion of the chancellor, and this court will not reverse the chancellor absent a clear abuse of discretion. See Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). The primary purpose of alimony is to offset the economic inequities that may exist between the parties as a result of divorce. See Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988). After considering such factors as the earning capacity of each party, the property awarded to each party in the divorce, the financial needs of each party based on their previous standard of living, the value of jointly owned property, the anticipated and current income of each party, the spendable assets of each party, the health condition of each party, the duration of the marriage, and the amount of child support, a chancellor may determine whether and in what amount to award alimony. See Franklin v. Franklin, 25 Ark. App. 287, 758 S.W.2d 7 (1988).

Our courts initially recognized rehabilitative alimony in 1990, when this court considered Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990). Rehabilitative alimony is alimony that is payable for a short, specified duration of time. See Bolan, 32 Ark. App. 67-68 n.1, 796 S.W.2d 360 n.1. The primary purpose of rehabilitative alimony is to afford the recipient a specific period of time in which to become self supportive. See id. Although alimony may, under proper circumstances, be awarded for a certain amount for a set period of time, the traditional alimony award in Arkansas is a continuous award that ispayable in regular intervals. See id.

In Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999), appellant Karen Myrick contended that the trial court erred when it awarded rehabilitative alimony rather than permanent alimony, considering the circumstances of the parties and the nature of the case. She argued that because she was thirty-two years of age, the mother of four, and worked a full-time job, she had no time to go to school. Our supreme court rejected her argument, and held that a chancellor possesses broad discretion to award the type of alimony that is deemed appropriate after considering the particular facts of the case. It reasoned that although the chancellor's award did not please appellant, it was certainly reasonable. See id. A review of Arkansas appellate cases that discuss rehabilitative alimony suggests that when a trial court is faced with the dilemma of awarding permanent alimony or rehabilitative alimony, the court should consider the length of the marriage, the age of the recipient, and the likelihood that the recipient will attain knowledge or skills that would enable her to increase her earning capacity. See Myrick, supra; Bolan, supra.

Limited-term support is recognized as an established institution in a majority of jurisdictions. See Brett R. Turner, Rehabilitative Alimony Reconsidered: The "Second Wave" of Spousal Support Reform, 10 Divorce Litig. 185, Oct. 1998. In considering the issue of when a limited-term support award is appropriate, Turner acknowledges that "no commentator has ever suggested, and no court has ever adopted, a precise rule of law for measuring the length of a spousal support obligation. Instead the general rule is that the amount of support depends upon the discretion of the trial judge." See Turner, supra.

Turning to this case, appellant argues on appeal that the chancellor erred in giving appellee "alimony for life." As a basis for his characterization, appellant argues that "for all intents and purposes, the award of permanent alimony is essentially an award for life." However, he offers no authority for his proposition. Instead, he urges that the chancellor should have ordered rehabilitative alimony for specific time period to force appellee to earn a college degree.

While our statutory laws allow a trial court to award alimony after considering certain factors, our laws do not mandate what form of alimony the trial court must award. Instead, this decision is left to the sound discretion of the trial court, and is reversed only upon a showing of abuse of that discretion. Here, appellant does not argue that the trial court should not have awarded alimony or that the trial court granted an inappropriate amount of money for alimony. Instead, his sole point of contention is that the trial court erred when it elected to continue appellee's award of alimony until she remarried or died, or there was a substantial change in circumstances. Appellant directs this court to no authority where our appellate courts have reversed a chancellor's award of alimony on the basis that the chancellor should have awarded rehabilitative alimony instead of permanent alimony, or permanent alimony instead of rehabilitative alimony.

Our appellate courts have repeatedly held that the primary factor in determining whether to award alimony is the ability of one party to pay and the need of the other party. It is not disputed that appellant has the ability to pay alimony or that his ability to pay alimony was clearly demonstrated. Likewise, the record demonstrates that appellee providedthe trial court with proof of her need for alimony. The record reveals that appellee had not worked for the majority of the nineteen-year marriage, that her current annual salary was approximately one-fourth that of appellant, and that her monthly expenses exceeded her monthly income. The chancellor has broad discretion to award alimony, and we cannot say that the record supports a conclusion that he abused his discretion.

Affirmed.

Neal and Robbins, JJ., agree.