Joseph Barry Thomason v. Rhonda Lu Thomason

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION II

CA02-116

OCTOBER 2, 2002

JOSEPH BARRY THOMASON AN APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT

v. [EDV 2000-6169]

RHONDA LU THOMASON HONORABLE ROBIN MAYS,

APPELLEE JUDGE

AFFIRMED

Appellant, Joseph Thomason, appeals the Pulaski County Circuit Court divorce decree that ordered him to pay his ex-wife, appellee Rhonda Thomason, $500 per month in permanent alimony. The decree also awarded appellee $6,243.07 for her interest in a marital checking account. Appellant now appeals the grant of alimony and the $6,243.07 award. We affirm.

The decision whether to award alimony is a matter that lies within the chancellor's sound discretion, and on appeal we will not reverse a chancellor's decision to award alimony absent an abuse of that discretion. Ellis v. Ellis, 75 Ark. App. 173, 57 S.W.3d 220 (2001). If alimony is to be awarded, then it should be set at an amount that is reasonable under the circumstances. Holaway v. Holaway, 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 other spouse's ability to pay, but certain secondary factors may be considered in setting the amount of alimony. Barker v. Barker, 66 Ark. App. 187, 992 S.W.2d 136 (1999). These secondary factors include (1) the financial circumstances of both parties, (2) the amount and nature of the income, both current and anticipated, of both parties, and (3) the extent and nature of the resources and assets of each of the parties. Id.

Appellant argues that the court did not consider the proper factors in awarding appellee $500 per month alimony and that the award was an abuse of the judge's discretion. He specifically asserts that if the court had properly considered appellee's financial need versus his ability to pay, the court would have reached a different conclusion.

In his Affidavit of Financial Means, appellant shows his take home pay as $554 per week. Appellant's expert, Bruce Engstrom, a certified public accountant, testified that appellant had a monthly disposable income of $2,700.

Appellee has a bachelor of science in education. She taught school up until the birth of the parties' only child. During the marriage, appellee worked approximately fourteen months for Lighting and Electrical Sales, and taught a Lamaze class once a weekfor eleven years. Appellee also returned to school to take some courses because she was considering medical school, and she also took two courses toward her teaching certificate.

At the time of the divorce, appellee worked as a "girl Friday" at Chuck Dory Auto Sales, with a take home pay of $238.62 per week. In her Affidavit of Financial Means, appellee listed her expenses as $3,070 per month. In the parties' property distribution agreement, appellee received $70,000 as her share of the equity in the marital home, a vehicle worth $16,000, an IRA worth $2,627, and $127,500 as her one-third interest in appellant's furniture store.

The court found that appellee had not worked a significant amount of time during the parties' marriage, but that appellee was employable. In arriving at the $500 per month alimony award, the court found the following. Appellee earned $1,034.02 per month. Invested at 4%, the money appellee received as equity in the marital home and as her share of appellant's furniture store, could generate a monthly income of $658.34. This resulted in appellee having a monthly income of $1,692.36, which the court rounded to $1,700. The court found that appellant had a monthly income of $2,700. The court subtracted appellee's monthly income from this amount to arrive at a difference of $1,000. The court then divided the $1,000 by two to arrive at a figure of $500 per month. The court stated that appellee needed to reestablish her earning capacity and that the court would not foreclose modifying the alimony award at a future date. This evidence was sufficient to show appellee's financial need and appellant's ability to pay; thus, the

awarding of alimony to appellee was not an abuse of discretion.

Appellant next asserts that the court erred in awarding appellee $6,243.07 based upon a partial accounting of a checking account, which was depleted at the time of divorce. Arkansas Code Annotated section 9-12-315(a)(1)(A) (Repl. 2002) provides that at the time a divorce decree is entered, all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable. Marital property is all property acquired by either spouse during the marriage. See Ark. Code Ann. § 9-12-315(b) (Repl. 2002). The overriding purpose of section 9-12-315 is to enable the court to make a division that is fair and equitable under the circumstances. Boxley v. Boxley, 77 Ark. App. 136, 73 S.W.3d 19 (2002). The judge's findings as to the circumstances warranting the property division will not be reversed unless they are clearly erroneous. Id. We will not substitute our judgment on appeal as to what exact interest each party should have; we will decide only whether the order is clearly wrong. Id.

Evidence was presented to establish that during the marriage, the parties maintained a VIP checking account at Firstar Bank. In October of 2000, the account had a balance of $25,088.54; however, by September 25, 2001, appellant had exhausted the funds in the account. In arriving at the $6,243.07 award, the court gave the account a starting value of $25,088.54. The court then deducted, as marital expenses and marital costs that were later divided, the cost of the furniture that appellee removed from appellant's furniture store, the taxes on the real estate, and $1,000 for the appraisal of a building. This left $19,486.13; the court then divided the remaining balance by two,giving each party $9,743.07. The court next deducted $3,500 in attorney fees resulting in appellee receiving $6,243.07.

Appellant has failed to demonstrate how this distribution was not fair or equitable. Therefore, we hold that the court's award of $6,243.07 was not clearly erroneous.

Affirmed.

Vaught and Roaf, JJ., agree.