William Lloyd Evans v. Marie M. Evans

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CA03-786

May 12, 2004

WILLIAM LLOYD EVANS AN APPEAL FROM CRAWFORD COUNTY

APPELLANT CIRCUIT COURT

[E-2000-895]

v.

HONORABLE MICHAEL MEDLOCK

MARIE M. EVANS CIRCUIT JUDGE

APPELLEE

AFFIRMED IN PART;

REVERSED and REMANDED IN PART

John F. Stroud, Jr., Chief Judge

William Evans appeals from a divorce decree entered by the Crawford County Circuit Court. In this case, a successor judge, without holding a new trial, entered a decree that deviated from the findings and conclusions announced from the bench by the judge who tried the case and left his position without entering an order. We affirm in part and reverse in part and remand for further proceedings in accordance with this opinion.

This case was tried before Judge Floyd Rogers on May 1, 2002, and August 21, 2002. At the end of the trial, he announced his findings and conclusions. He did not, however, enter a written order. Judge Rogers's term expired on December 31, 2002. On February 10, 2003, Judge Gary Cottrell notified the parties that a review hearing would be held on February 25, 2003; this hearing was moved to March 24, 2003. Judge Cottrell then transferred the case to Judge Michael Medlock on March 26, 2003, "for trial and all ancillary matters which may arise." On April 4, 2003, Judge Medlock notified the parties that, "[a]fter review of the proposed decree, previously submitted to the Court by Mr. Batchelor [counsel for appellant], and a copy of the transcript, provided by Mr. Christian [appellee's attorney]," he had entered the divorce decree.

In the decree, Judge Medlock divided most of the marital property equally between the parties, including a savings account containing $8,000. He ordered that the parties' tenancy by the entirety in their home and six acres be converted to a tenancy in common and gave appellee, Marie Evans, the right to live there for the rest of her life, with the obligation to make necessary repairs. He ordered appellant to pay the $1,100 debt remaining on appellee's truck. He directed each party to pay one-half of the $6,000 credit-card debt. He awarded appellee monthly alimony in the amount of $1,439.50, using the following calculations:

Plaintiff shall pay to defendant, alimony in the amount of $1,439.50 (computed as follows: $2719 his income, plus $505 her income divided in half), less one-half of the cost of defendant's insurance, which presently [is] $345.00 per month, therefore, the alimony is reduced by the amount of $172.50, and plaintiff is directed to make the entire payment on the premium, and the net alimony shall be $1,439.50 ....

Appellant filed a motion to set aside the decree, which was deemed denied after thirty days because it was not acted upon by the judge. Appellant filed a notice of appeal from the divorce decree before the thirty days had run on his motion.

Appellant raises five points on appeal: (1) Judge Medlock erred in entering the divorce decree without conducting a new trial; (2) the judge erred in setting alimony without regard to appellee's needs and appellant's ability to pay, and in calculating alimony; (3) the judge erred in dissolving the parties' tenancy by the entirety in the family home; (4) the judge erred in failing to resolve all of the issues; (5) the judge erred in dividing appellant's railroad retirement disability pay.

Arkansas Rule of Civil Procedure 63

Appellant argues in his first point that, pursuant to Ark. R. Civ. P. 63,1 Judge Medlock erred in entering the decree without retrying the case, because it was tried before Judge Rogers, who left the bench without entering his findings of fact and conclusions of law. This court, however, lacks jurisdiction to consider this argument. According to the abstract and addendum, appellant first made this argument in his post-trial motion to set aside the decree.2 The original judgment was filed on April 8, 2003, and on April 21, 2003, appellant filed a motion to set aside the decree. He filed a notice of appeal from the decree on April 30, 2003. The trial court did not enter an order granting or denying the motion, which was deemed denied on the thirtieth day. Ark. R. App. P. 4(b)(1). If appellant wished to appeal from the denial of this post-trial motion, he was required to amend his notice of appeal within thirty days of the date that the motion was deemed denied. Ark. R. App. P. 4(b)(2). The reporter's note to Rule 4 addresses the 1999 amendment that created subsection (b)(2):

Paragraph (b)(2), based on Federal Rule 4(a)(4), is new. It provides that a notice of appeal filed before disposition of one of the specified posttrial motions becomes effective on the day after a dispositive order is entered or the motion is deemed denied by operation of law. Under prior practice, a premature notice of appeal was ineffective. Chickasaw Chemical Co. v. Beasley, 328 Ark. 472, 944 S.W.2d 511 (1997); Kimble v. Gray, 313 Ark. 373, 853 S.W.2d 890 (1993). The effect of paragraph (b)(2) is to suspend a premature notice until the motion is ruled on or deemed denied, and a new notice is not necessary to appeal the underlying case. However, a party seeking to appeal from disposition of the posttrial motion must amend the original notice to so indicate. No additional fees are required in this situation, since the notice is an amendment of the original and not a new notice of appeal.

Appellant has failed to demonstrate that he raised this argument before entry of the divorce decree, which is the only order from which a notice of appeal has been filed. Thus, the result of appellant's failure to amend his notice of appeal as required by Rule 4(b)(2) is that this court lacks jurisdiction to address this point on appeal. See U.S. Bank, N.A. v. Milburn, 352 Ark. 144, 100 S.W.3d 674 (2003); Troutman Oil Co. v Lone, 75 Ark. App. 346, 57 S.W.3d 340 (2001).

Alimony

Appellant argues that Judge Medlock failed to consider the relevant factors in setting alimony. A trial judge's decision regarding alimony is a matter that lies within his sound discretion and will not be reversed on appeal absent an abuse of that discretion. See Delacey v. Delacey, ___ Ark. App. ___, ___ S.W.3d ___ (Mar. 24, 2004). 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. Id. The trial court should also consider the following secondary factors: (1) the financial circumstances of both parties; (2) the couple's past standard of living; (3) the value of jointly owned property; (4) the amount and nature of the income, both current and anticipated, of both parties; (5) the extent and nature of the resources and assets of each of the parties; (6) the amount of each party's spendable income; (7) the earning ability and capacity of both parties; (8) the property awarded to each party;(9) the disposition of the homestead or jointly owned property; (10) the condition of health and medical needs of the parties; (11) the duration of the marriage. Id.; see also Ellis v. Ellis, 75 Ark. App. 173, 57 S.W.3d 220 (2001).

Clearly, Judge Rogers carefully considered all of the relevant factors before he announced his ruling from the bench to equally divide the parties' net income, and we find no abuse of discretion in awarding appellee that percentage. The parties were married over forty years, and both are disabled. Mrs. Evans has a high-school education, little work experience, and few skills. She is in poor health, having suffered from cancer and congestive heart failure. She receives only $505 in monthly social security disability payments. Her medical expenses are high. At the time of trial in 2002, the evidence revealed that appellant received $2,719.32 per month and that the total family income was $3,224.32; one-half of that amount was $1,612.16. Because appellee receives the $505 in social security benefits directly, that amount should be deducted from $1,612.16, leaving $1,107.16. Also, one-half of the monthly $345 that appellant pays for appellee's health insurance should be deducted from $1,107.16, for a net alimony payment of $934.66.

On de novo review of a fully developed record in an equity case, the appellate court may enter the order that the trial judge should have entered or it may remand if the court concludes that justice would be better served. Office of Child Support Enforcement v. Pittman, 70 Ark. App. 487, 20 S.W.3d 426 (2000). We, therefore, reverse and remand this case for the entry of an order setting the alimony award in accordance with this opinion. The circuit judge, of course, can adjust these amounts in the future, if circumstances warrant.

The Tenancy by the Entirety

In his third point, appellant contends that Judge Medlock erred in dissolving the tenancy by the entirety in the marital home. At trial, appellant's attorney asked Judge Rogers to retain the tenancy by the entirety, and appellee voiced no objection to this request. Judge Rogers stated: "We can do that, I don't think there's a problem." Judge Rogers, however, did not restate his willingness to retain the tenancy by the entirety in his findings from the bench at the conclusion of the trial, which were the only part of the record reviewed by Judge Medlock. In those findings, Judge Rogers simply stated: "It looks like the house she's living in she'll get possession."

We recognize that Judge Medlock did not review the full transcript of the trial before he entered the decree and, therefore, did not know that appellee had voiced no objection to retaining the tenancy by the entirety. In light of the parties' apparent agreement at trial and the overall equities, we therefore reverse and remand this issue for the entry of an order retaining the tenancy by the entirety and awarding possession of the house to appellee.

Other Remaining Issues

Appellant further contends that Judge Medlock did not address all of the outstanding issues. He asserts that Judge Medlock did not provide for the payment of the $6,000 credit-card debt. We disagree. Judge Medlock expressly ordered each party to be responsible for one-half of that debt in paragraph seven of the decree. However, appellant correctly points out that Judge Medlock omitted from the decree Judge Rogers's direction that each party retain only the credit cards in his or her name. In accordance with Ark. R. Civ. P. 63, the circuit judge should, on remand, make clear that each party is responsible for one-half of the credit-card debt at the time of the decree, and thereafter, each is responsible for his or her own charges and order the parties to cancel the jointly held credit cards if any still exist.

Appellant also asserts that the decree did not provide for insurance or property taxes on the home. Although the decree states that "insurance should be obtained upon the property," it does not indicate which party will bear the burden of paying for the insurance, in whose favor the loss payable clause will apply, or who will be responsible for taxes on the property. Judge Rogers made no findings on those issues at trial. We believe that a hearing should be held and the decree should address those matters, and we direct that they be clarified on remand. On retrial, the circuit judge may also consider whether to condition appellee's future possession of the house on her not remarrying.

Appellant's Railroad Retirement Disability Benefits

Appellant further contends that Judge Medlock erred in considering his Tier I railroad retirement benefits in calculating the parties' total income for purposes of determining alimony. According to appellant, this resulted in an impermissible division that is contrary to federal law. We disagree. It is well settled that Railroad Retirement Act Tier I benefits may be considered as income by the court in making an alimony award. In Kennedy v. Kennedy, 53 Ark. App. 22, 29, 918 S.W.2d 197, 201 (1996), we upheld an award of alimony that would be paid by the husband from his Tier I benefits and stated:

We also find no merit to appellee's contention that the award of alimony beyond his retirement age violates federal law. The federal act upon which appellee relies for his argument prohibits a court from awarding a spouse a community interest in certain federal retirement benefits. Appellee argues that, if he is required to pay alimony beyond retirement age, he will have to make those payments from his Tier I benefits, which are not divisible under federal law. Appellee, however, has not cited any law that restricts him from paying alimony from retirement benefits that he might receive.

Because the same reasoning applies here, we affirm on this issue.

Appellant also argues that this award violates his rights to due process and equal protection, as guaranteed by the United States and Arkansas Constitutions. Because he did not make these constitutional arguments to the trial court, we do not consider them. Bright v. Gass, 38 Ark. App. 71, 831 S.W.2d 149 (1992).

Affirmed in part; reversed and remanded in part.

Pittman and Griffen, JJ., agree.

1 Rule 63 states:

If for any reason, including resignation or removal from office, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are announced or filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but, if such judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may, in his discretion, grant a new trial.

2 In his brief, appellant claims that, before the decree was entered, he objected to Judge Medlock's deciding the case without conducting a trial. He also made this assertion in his motion to set aside the decree. Appellee denied this in her response to the motion. Although the circuit court's docket sheet shows that a hearing was held in chambers on March 24, 2003, there is no record of the parties' arguments, and we can find nothing in the addendum or abstract to support appellant's assertion that he made this argument before the decree was entered. It is appellant's burden to bring up a record on appeal sufficient to demonstrate error. Cassidy v. Arkansas Dep't of Human Servs., 76 Ark. App. 190, 61 S.W.3d 880 (2001).