Linda Diane Bruning v. Daniel Louis Bruning

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

WENDELL L. GRIFFEN, JUDGE

DIVISION I

CA00-712

May 9, 2001

LINDA DIANE BRUNING

APPELLANT AN APPEAL FROM WHITE COUNTY

CHANCERY COURT

V. NO. E98-1175-1

HONORABLE JAMES HANNAH

DANIEL LOUIS BRUNING CHANCELLOR

APPELLEE

AFFIRMED

On January 18, 2000, appellant and appellee were divorced after almost twenty-seven years of marriage. They agreed on the manner in which most of their property would be divided and on appellant having physical custody of their only minor child, who was age sixteen at the time of trial. However, they asked the chancery court to resolve two matters that remained in dispute. The first issue concerned the value of a corporation called Serbon, Inc., which was undisputably marital property and subject to division. The second issue concerned the amount of alimony that should be paid to appellant, if any. Following a trial, the chancellor valued Serbon, Inc., at $380,000 and awarded appellant alimony in the amount of $94 per week for four years so long as she was enrolled as a full-time college student. On appeal, appellant contends that the chancellor erred in his valuation of the business and abused his discretion in making the alimony award. We find no error and affirm.

We address first the chancellor's valuation of Serbon, Inc. From 1984 until 1997, Serbon, Inc., owned and operated a Bonanza restaurant franchise in the city of Searcy. In late 1997, Serbon severed its relationship with Bonanza and changed the name of the restaurant to Dillon's. Serbon also purchased the restaurant building and the land on which it was located for $300,000 (although it was appraised at $500,000) and made substantial improvements thereon. Following these changes, the corporation's net income, which had fallen as low as $577 in 1997 when the restaurant was a Bonanza franchise, rebounded markedly in 1998 to $94,849.

At the trial, which was held on November 18, 1999, CPA Jay Cherry testified on behalf of appellee that Serbon had a value of $257,226. His valuation was based in part upon a determination that the corporation's land, building, and improvements were worth their $500,000 appraised value and on Serbon's average income from 1994 through 1998. Cherry did not consider Serbon's 1999 income figures in his valuation. Appellant's expert, CPA Pam Kell, testified that the corporation had a value of $560,000. Her testimony was based in part upon a determination that the corporation's land, building, and improvements were worth $625,000, and on Serbon's average income in the years 1998 and 1999. Although Kell only had available to her the corporation's income figures for the first six months of 1999, she annualized those figures to arrive at a projected 1999 income of $237,190.

Following trial, the chancellor declared that he had problems with both experts' testimony. According to him, Kell's valuation of the corporation's real property was too high and her income figure for 1999 was too high. He also noted that Cherry's valuationfailed to take into account Serbon's most recent income data for the year 1999. Because of these problems, the chancellor decided not to use the valuation figure provided by either expert. Instead, he determined on his own that the value of the corporation was $380,000. In order for appellant to receive her one-half interest in the corporation, amounting to $190,000, the chancellor ordered that she be paid $161,500, and that she receive one of the corporation's vehicles worth $28,500. Appellant appeals from that ruling.

We begin our discussion of this issue by noting that chancery cases are reviewed de novo on appeal. Hoover v. Hoover, 70 Ark. App. 215, 16 S.W.3d 560 (2000). However, we will not reverse a chancellor's findings of fact unless they are clearly erroneous. Id. In particular, we have said that a chancellor's valuation of property for purposes of property division will not be reversed unless it is clearly erroneous. See Miller v. Miller, 70 Ark. App. 64, 14 S.W.3d 903 (2000).

As appellant points out, the chancellor in this case did not state the manner in which he arrived at the figure of $380,000. However, he made express findings as to why he would not rely on the valuations provided by the experts, one being too high and the other being too low. In light of his skepticism regarding the experts' testimony, he was not bound to accept one valuation or the other. He decided instead to assign the corporation a value in an amount that fell in between the figures offered by the experts. We cannot say that, under the circumstances, his valuation was clearly erroneous. In fact, it seems most reasonable in light of the fact that, two years prior to trial, the corporation purchased its real property for $300,000.

We also note that, had appellant wished to have the chancellor set out the exact manner in which he calculated the worth of the business, she should have requested a specific finding of fact. See Nicholson v. Nicholson, 11 Ark. App. 299, 669 S.W.2d 514 (1984).

Appellant also contends, in a two-sentence argument, that the chancellor's decision to include the value of the corporate vehicle as part of her $190,000 half interest constituted an unequal division of property without stating the reason therefor. This contention is not supported by convincing argument or authority, so we will not consider it. See Dugal Logging, Inc. v. Arkansas Pulpwood Co., 66 Ark. App. 22, 988 S.W.2d 25 (1999). In any event, the chancellor stated in his ruling from the bench that it was appellant's choice as to whether the vehicle would be accepted by her in lieu of cash payment. Given the chancellor's statement and the lack of any objection by appellant, we can only assume that she chose to accept the vehicle instead of an additional $28,500.

The final issue on appeal involves the chancellor's award of alimony to appellant. The award of alimony is a matter resting solely in the chancery court's discretion. Killough v. Killough, 72 Ark. App. 62, 32 S.W.3d 57 (2000). It will not be reversed absent an abuse of discretion and must always depend on the facts of the case. See id. 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. Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1998). The primary factors to be considered in awarding alimony are the need of one spouse and the other spouse's ability to pay. Barker v. Barker, 66 Ark. App. 187, 992 S.W.2d 136 (1999). Other secondary factors may beconsidered such as the financial circumstances of both parties, the amount and nature of income, both current and anticipated, of both parties, and the extent and nature of the resources and assets of each of the parties. See id.

The type of alimony awarded in this case is rehabilitative alimony, i.e., alimony payable for a short but specific and terminable period of time which will cease when the recipient is, in the exercise of reasonable efforts, in a position of self-support. See Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990). Alimony of this type was awarded in Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999), wherein appellant, who was the mother of four children, was awarded alimony in the form of tuition and expenses to be used for a college or trade-school education. Our supreme court upheld the award on appeal.

Appellant argues in this case that the chancellor abused his discretion by requiring her to attend college as a condition of collecting alimony. She also argues that the amount awarded is insufficient to cover the cost of paying for college. We disagree. In her testimony at trial, appellant testified that she needed alimony because she wanted to attend college. She also testified that she had some artistic abilities from which she had earned a small income in the past. Further, appellant received almost $300,000 in cash and property as a result of the property settlement. Finally, the amount awarded as alimony and child support combined ($228) is in line with the support-chart amount payable for three dependents on appellee's weekly income of approximately $850. See In re Administrative Order No. 10: Arkansas Child Support Guidelines, 331 Ark. 581 (1998). This is consistent with the dictates of Order No. 10 that, for purposes of spousal support, a dependent custodian should be counted as two dependents. See Section III(e).

In light of the above factors, and in light of the supreme court's decision in Myrick, supra, we cannot say that the chancellor abused his discretion in making the alimony award.

Affirmed.

Jennings and Bird, JJ., agree.