Harvey Lee Parker v. Shanna Gayle Parker

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

HARVEY LEE PARKER

APPELLANT

V.

SHANNA GAYLE PARKER

APPELLEE

CA03-181

August 27, 2003

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. E-01-297-G]

HONORABLE JIM SPEARS,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Appellant, Harvey Lee Parker, appeals from a decree of divorce granting appellee, Shanna Gayle Parker, monthly alimony in the amount of $25. For reversal, appellant argues that the trial court abused its discretion by awarding appellee alimony that was based on impermissible factors. We affirm.

Appellee, who was fifty-five years of age at the time of the divorce in August of 2002, testified that she and appellant had been married for thirty-eight years. She stated that she had obtained her GED at the age of forty-five, and other than working for her daughter in her current job, she had not held employment outside the home.

The parties operated three chicken houses located on a 145-acre farm they purchased approximately ten years ago. Appellee managed the farm while appellant remained employed as a maintenance supervisor at Tyson Foods. While acknowledging that the farm was encumbered by a mortgage and the parties' debt totaled $348,000, she asserted that the appraised value of the farm exceeded the amount of indebtedness. Further, she stated that the parties had agreed that appellant would retain possession of the farm, the cattle, and the farm equipment until they were sold.

The parties had owned, jointly with their daughter, a "laser clinic" that provided clients with hair and capillary removal. At the time of the hearing, appellant had given their daughter his interest in the business, but appellee had retained a one-fourth ownership interest. Appellee testified that the business had a net income in excess of $100,000 a year, with the corporation making $200,000 the previous year. She further testified that although she worked for her daughter as a secretary earning $2,000 each month, she did not have any training.

Even though appellee was employed at the time of trial, she sought an award for a "nominal amount" of alimony. Her stated purpose for seeking alimony was to insure that she could later petition the court for an increase of alimony should she become ill or need additional financial assistance. She admitted that at the present time, appellant was fifty-seven years old and was "probably not in any better financial situation" than her. She noted that appellant had a GED but that he had "a lot of work experience" while she did "not have any."

Appellant testified that he had worked for Tyson Foods for fifteen years and had retirement and stock accounts worth $5,000. According to appellant, he presently lives and works on the farm and plans to continue to do so until the farm is sold. Appellant stated that the farm is a seven-days-a-week job. Claiming that he is not benefitting financially from his work, he noted that all of his income is used to pay debts. He complained that he is not always able to pay both the debts and his bills each month. Appellant testified that his income included $7,392 per month from operating the chicken houses, $300-500 per head of cattle he sells annually, and a total of $750 from the sale of hay each year. Further, he stated that during the first three months of 2001, he operated a coal truck that grossed $14,865. In addition to appellee's testimony regarding the parties' debts of $280,000 to Farm Credit for the real estate, $28,000 to Farm Credit for the cattle and equipment, $23,000 to First National Bank of Heavener, $6,000 to AT&T for credit cards, and $19,000 to the Internal Revenue Service, appellant stated that he owed $3,400 on a kitchen table and that he had initiated an installment plan with the IRS. On November 19, 2002, the circuit court issued a decree granting appellee an absolute divorce. The court then observed that the marriage was for thirty-eight years, that appellee had no job skills, although she was working for her daughter as a secretary and earning $500 a week. The court ordered appellant to pay appellee $25 in monthly alimony, stating that the court's decision was based on "a marriage of long duration, the financial position of the parties, and the lack of any job skills or work history on the part of" appellee.

At trial and on appeal, appellant argued that the trial court was without authority to hold the award of alimony in abeyance and that the award of alimony could only be based on the circumstances presented at the time of the trial. We disagree.

On appeal, an award of alimony will not be reversed absent an abuse of discretion. Ellis v. Ellis, 75 Ark. App. 173, 57 S.W.3d 220 (2001). The key factors in determining whether or not to award alimony are one spouse's financial need and the other's ability to pay. Id. Other secondary factors that may be considered 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. Barker v. Barker, 66 Ark. App. 187, 992 S.W.2d 136 (1999).

In Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996), the court upheld the trial court's reservation of an award for a specific amount of alimony until a future time when the circumstances permitted a modification (i.e. until the recipient could enter gainful employment). The court stated that the wife's needs were evident because the husband had been the sole breadwinner during the marriage and that he had the capacity and ability to pay as evidenced by his employment history and his testimony regarding future employment expectations.

The Mulling court relied upon Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988), which held that the trial court must determine whether one spouse is entitled to alimony at the time the divorce decree is entered. The Grady court, however, further held that the trial court may reserve for a future determination the specific award of alimony when it finds that the present circumstances hinder the other spouse's ability to pay. According to Grady, when circumstances permit, the trial court may award alimony at a later date based on a petition brought by the entitled spouse. In its analysis, the Grady court stated:

It is inequitable to hold that a spouse who may be entitled to alimony is forever barred from receiving it because the spouse who should pay it cannot at the moment of entry of the decree. It is illogical to hold, as we did [in Ford v. Ford, 272 Ark. 506, 616 S.W.2d 3 (1981)], that alimony may be raised or lowered upon a showing of changed circumstances but that the spouse who may have an obligation to pay alimony may not be made to do so when his or her circumstances permit it just because they did not permit it at the time the obligation was determined.

Id. at 100, 147 S.W.2d at 80.

Accordingly, Arkansas Code Annotated section 9-12-312 (Repl. 2002) requires the trial court to determine whether or not to award alimony at the time the decree is entered. In the present case, the trial court found that appellee was entitled to alimony based on her lack of job experience, financial position of the parties, and the length of the marriage.

During the thirty-eight years of marriage, appellee did not work outside the home until she began her current employment with her daughter. There was no showing that appellee has obtained any marketable job skills from her past work at home or in her current employment. On the other hand, appellant has been a maintenance supervisor in a large corporation for many years, and at the present time, he is able to operate the farm and grossed $14,865 during the first three months of 2001 by operating a "coal truck."

In our view, it would be inequitable to hold that a spouse with little or no job skills, who worked at home for thirty-eight years should be forever barred from receiving alimony because the family farm is currently in the process of being sold, and without explanation the spouse ceased earning a substantial income. Therefore, we cannot say that the trial court abused its discretion by finding that appellee was entitled to an award of alimony or that the court's finding that appellee receive $25 alimony each month was clearly erroneous. We affirm.

Affirmed.

Pittman and Robbins, JJ., agree.