John Sharp Williams v. Judith Williams

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION III

JOHN SHARP WILLIAMS

APPELLANT

V.

JUDITH WILLIAMS

APPELLEE

CA02-595

March 19, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. DV 2001-2050]

HON. MACKIE PIERCE,

JUDGE

AFFIRMED

The parties to this action were divorced by a decree entered on December 19, 2001. In the part of the order now appealed from, the trial court awarded appellee alimony in the amount of $750 biweekly for twenty-four months and $500 biweekly for twelve months thereafter. The court also directed that appellant be solely responsible for the taxes, penalties, and interest owed to the Internal Revenue Service and the Arkansas Department of Finance and Administration for the tax years in which appellant failed to file income tax returns. Appellant argues on appeal that the alimony award is excessive and that the trial court erred in making him solely responsible for the outstanding tax debt. We find no error and affirm.

A trial judge's decision whether to award alimony is a matter that lies within his sound discretion and will not be reversed on appeal absent an abuse of that discretion. Davisv. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002). 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. Id. The primary factors that a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse's ability to pay. Holaway v. Holaway, 70 Ark. App. 240, 16 S.W.3d 302 (2000). Certain secondary factors may be considered in setting the amount of alimony, including (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. Barker v. Barker, 66 Ark. App. 187, 992 S.W.2d 136 (1999); Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998).

Appellant contends that the award of alimony was excessive because his 2001 income was significantly lower than his income for 2000 and because his income has been steadily decreasing since 1997. The trial court used appellant's income from 1996 to the date of the hearing to determine his earning potential and awarded alimony based on that figure as well as the court's "common knowledge" of the business in which appellant was engaged. There was evidence that appellant had quit one job and been fired from another. There was conflicting evidence as to whether the industry in which appellant worked was declining or holding steady. The court also noted that while the parties' current funds were limited, appellee had a need for alimony. The court found that appellee had no job skills or job history and that appellant had discouraged appellee from working outside the home. Afterthe court figured appellant's average net monthly earnings at $2,827, it further observed that the current year's figures were not indicative of appellant's ability to earn and, thus, imputed to appellant the ability to earn $3,500 net per month.

In Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988), the supreme court noted that, although Arkansas had not previously dealt directly with the issue, elsewhere it had been held that a court may consider the fact that a supporting spouse voluntarily changes employment so as to lessen earning capacity and, in turn, the ability to pay alimony and child support (citing Camp v. Camp, 269 S.C. 173, 236 S.E.2d 814 (1977)). The Grady court went on to say that a court may, in proper circumstances, impute an income to a spouse according to what could be earned by the use of his or her best efforts to gain employment suitable to his or her capabilities. Grady, 295 Ark. at 97, 747 S.W.2d at 78-79.

The trial court in this case was clearly aware that appellant's income was lower than it had been, but the court believed this to be expected from a divorce and a change of jobs. The court must judge the facts and circumstances of each case and when, under appropriate circumstances, an income based on earning capacity is attributed to a spouse, the reviewing court will not find error. Grady, 295 Ark. at 98, 747 S.W.2d at 79. Considering this and all the factors recited above that were relied on by the court in making its determination of alimony, we cannot say the trial court abused its discretion in its award of alimony.

Appellant also contends that the trial court erred in assigning the tax debt of the parties solely to him. In Killough v. Killough, 72 Ark. App. 62, 32 S.W.3d 57 (2000), we stated that the trial court has the power to determine tax liability between the parties. Likewise, in Anderson, supra, we said that a trial court's decision to allocate debt to a particular party in a divorce case is a question of fact and will not be reversed on appeal unless clearly erroneous. There was evidence before the trial court from which it could conclude that appellant's financial position was superior enough to appellee's to justify assigning to him the income tax debt. The trial court's allocation of the debt was not clearly erroneous.

Affirmed.

Neal and Baker, jj., agree.