Josephine Barry Rogers v. Doyle Rogers, Jr.

ca04-374

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA04-374

September 14, 2005

JOSEPHINE BARRY ROGERS AN APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

[No. DV 01-4348]

v.

HONORABLE MACKIE PIERCE,

DOYLE ROGERS, JR. CIRCUIT JUDGE

APPELLEE

AFFIRMED

John Mauzy Pittman, Chief Judge

This is a divorce case involving the division of property and marital debt, alimony, and attorney's fees. Josephine Rogers appeals from the Pulaski County Circuit Court's decree, which awarded Doyle Rogers, Jr. ("Rog"), more of the parties' marital property and all of their debt; directed Rog to pay substantial alimony and the mortgage on the marital home; and held each party responsible for his or her attorney's fees. On appeal, Mrs. Rogers challenges the validity of the largest debt assigned to Rog (to his father, Doyle Rogers, Sr.); argues that she should have been awarded a larger percentage of the marital property; and contends that, for purposes of alimony, child support, and attorney's fees, Rog's interest in an irrevocable trust established by his multimillionaire parents, Doyle Rogers, Sr., and Josephine Raye Rogers, should be considered. Other than the genuineness of the parties' debt to Doyle Rogers, Sr., appellant does not challenge the trial court's findings of fact. We affirm the decree in all respects.

The parties were married in April 1979. Two daughters and one son were born of the marriage; at the time of trial in the summer of 2003, only their son was a minor. His eighteenth birthday was in August 2004, and he was due to graduate from high school in the spring of 2005. Before the parties married and for a short time afterward, appellant, who has a college degree, worked as a kindergarten teacher. For most of the marriage, she was a full-time homemaker. In 1994, the parties formed two closely held corporations, Aircraft Investments, Inc., and Aircraft Investment Maintenance, Inc. Those companies were unsuccessful, and faced with the prospect of bankruptcy in 1996, the parties turned to Doyle Rogers, Sr., for help. In exchange for 60% of the aircraft companies' stock, Doyle Rogers, Sr., provided financial assistance, loan guarantees, and additional collateral for the parties' corporate debts. In return, the parties pledged as collateral 100% of the outstanding stock of both companies and Rog's interest in four real estate partnerships. Rog, appellant, and Doyle Rogers, Sr., signed the document commemorating that agreement on March 1, 1996. Even with the assistance of Doyle Rogers, Sr., however, the two companies continued to fail. At the time of trial, the parties were in the process of winding down the businesses and selling their assets. At that time, the companies' total assets were valued at less than $1,500,000, and their total debt was $9,690,000.

Rog obtained his interests valued at $1,675,000 in several real estate partnerships through his father's efforts. His interest in the partnerships' cash assets was $348,000. However, he and others testified that this cash was reserved for general maintenance and repairs of the partnerships' assets. Although these partnership interests were in Rog's name and their distributions were reflected on the parties' income tax returns, Rog presented evidence that these distributions were paid to his father to reduce the debt Rog owed him.

The parties owned 3.22 shares of Rogers Bancshares, which is the holding company for Metropolitan Bank. They owed Regions Bank approximately $411,000 for their purchase of this stock. The parties also owned 312 shares of Wal-Mart stock worth approximately $16,000 and a life insurance policy on Rog with a cash value of $14,895. Their marital home, which was valued at $225,000, was subject to a $78,000 mortgage with monthly payments of $1,867.

Rog's non-marital property consisted of common stock in Citizens Bancshares valued at $12,150; a 25% interest in Jo-Ba-Do, Inc., valued at $105,000; residential property in Batesville valued at $162,750; and a one-half interest in a Florida condominium of unknown value.

Rog receives annual income of approximately $79,000, health insurance, and the amount of the parties' mortgage payments from Doyle Rogers Realty & Insurance Company. He also receives over $8,000 per year in director's fees. In 2001, his total income was $200,000, and in 2002, it was approximately $216,000. Both years, he received over $42,000 in bank stock dividends. He received $66,847 in 2001 and $86,999 in 2002 as income from the real estate partnerships.

In an August 25, 2003, letter opinion, the trial judge found Rog's real estate partnership interests to be marital property and included the income from those interests in determining his monthly income to be $17,358. Following the child-support chart, the trial judge awarded appellant $2,603 per month for child support. The judge also awarded appellant $1,750 per month in alimony and possession of the marital home, on which he ordered Rog to pay the mortgage. The trial judge equally divided the parties' 40% interest in the aircraft companies, the Wal-Mart stock, and the cash value of Rog's life insurance policy. The judge awarded two shares of Rogers Bancshares stock to Rog and 1.22 shares to appellant, holding Rog responsible for the $411,000 debt to Regions Bank. The judge also awarded Rog the interests in the real estate partnerships and held him solely responsible for all of the debt relating to the aircraft companies. In making this decision, the court found an unequal distribution to be equitable because of several factors, including Rog's superior ability to earn an income and the resources and assets that would be available to him upon divorce. The court also held each party responsible for his or her attorney's fees.

The court explained:

On March 1, 1996, Plaintiff [appellee], Defendant [appellant] and Mr. Rogers, Sr., executed an "Agreement" ... where Mr. Rogers, Sr., provided financial assistance, loan guarantees and additional collateral for corporate loans to the two companies. This allowed Plaintiff and Defendant to avoid financial disaster and certain bankruptcy. At that time, Plaintiff and Defendant conveyed and exchanged sixty percent (60%) of the company stock to Mr. Rogers, Sr. and personally guaranteed the debt owed to Mr. Rogers, Sr. in exchange for this financial assistance. Plaintiff and Defendant executed the agreement individually and Plaintiff executed the agreement on behalf of both companies as President. Plaintiff and Defendant pledged as collateral for this bailout financing received from Mr. Rogers, Sr., one hundred percent (100%) of the outstanding stock in both companies and all of Plaintiff's "partnership interest in the Manitowac Partners, an Arkansas Partnership, thirty seven and one-half percent (37.5%) interest, Broadmoor Associates, an Arkansas General Partnership, thirty seven and one-half percent (37.5%) interest, subject to existing liens, Levy Associates, an Arkansas General Partnership, thirty seven and one-half percent (37.5%) interest, and second mortgage on the one-half undivided interest in the Wal-Mart Shopping Center at Heber Springs, Arkansas." The two companies, according to Mr. [Sam] Fiser have a total debt obligation owed to Mr. Rogers, Sr. of approximately $9,690,000.00. The only assets of the companies are a 1983 Jetstream Aircraft for sale now at an asking price of $1,400,000.00 and equipment with an approximate liquidation value of $55,000.00. Mr. Fiser allocates 100% of the two companies' total debt to Plaintiff and Defendant.

Even accepting Defendant's argument that only forty percent (40%) of the company debt should be allocated to Plaintiff and Defendant, the parties' interest in the two companies still leaves them with a substantial negative corporate net worth. Assuming Defendant's argument of only allocating forty percent (40%) of the corporate debt to Plaintiff and Defendant is correct, the calculations would be as follows:

$9,690,000.00 Corporate debt

x 40%

($3,876,000.00) Marital share of debt on the two companies

+$1,450,000.00 Jetstream aircraft and equipment value

($2,426,000.00) Negative value of marital interest

+$1,675,015.00 Plaintiff's partnership value as collateral

($750,985.00) Negative net value after applying value of

pledged collateral

These calculations assume all assets are allocated for the benefit of Plaintiff and Defendant. However, if Plaintiff and Defendant are assessed forty percent (40%) of the debt, they would only be entitled to forty percent (40%) percent of the assets, i.e., $1,450,000.00 x 40% = $580,000.00. Therefore, ($3,876,000.00) plus$580,000.00 of assets leaves a negative net worth of ($3,296,000.00). Adding in the total value of Plaintiff's partnership interests of $1,675,000.00 (although only four partnership interests were pledged) leaves a negative net worth for the two companies as owned by Plaintiff and Defendant totaling ($1,621,000.00). The Court cannot agree with Defendant's argument. Plaintiff and Defendant owe one hundred percent (100%) of the debt of the two aircraft companies to Mr. Rogers, Sr. These debts are collateralized with one hundred percent (100%) of the stock of the two companies and the Plaintiff's partnership assets as outlined above.

....

The Court heard extensive testimony from Mr. Sam Fiser, the CPA for the Plaintiff as well as Mr. Doyle Rogers, Sr., and received numerous exhibits concerning the parties' financial status, including the parties' personal tax returns (pro-forma tax return for 2002), business returns for the two aircraft companies, financial statements and documents evidencing the debt of the parties. The Plaintiff testified that all of the partnership distributions he receives actually flow through him and his sister to his mother and father. In other words, Plaintiff testified that he does not actually receive the distributions which are reflected on his 2002 income tax return and prior years returns. Plaintiff testified all these properties have always been considered his mother's and father's until their deaths. The same applies to the rental real estate located in Batesville, Arkansas.

Basically the Court views this arrangement as an elaborate estate planning device by Mr. Rogers, Sr. Plaintiff theoretically could keep this income and legally is entitled to this income. Practically speaking, however, Doyle Rogers, Sr. could simply call his notes due from Plaintiff and Defendant and take control of the partnership assets as well as the aircraft companies' assets that collateralize the debt owed to Doyle Sr., by Plaintiff and Defendant. Mr. Rogers could sue his son and soon to be ex-daughter-in-law, with the most likely result being a bankruptcy filing by both Plaintiff and Defendant. Mr. Thomas' point that Mr. Rogers most likely would not want a bankruptcy trustee snooping around the financial arrangements and assets is an intriguing argument. The court is of the opinion this argument is probably true.

It appears to the Court that Doyle Sr. uses Doyle Jr. and formerly Defendant as a pass through or conduit for conducting business activities that would not be includable in his gross estate for estate tax valuation purposes upon his death. Plaintiff testified that he passes through to his father the distributions received from the various entities effectively controlled and created by his father; that his father, he assumed, paid down the various debt obligations with these funds. Plaintiff denies that the debts owed as a result of the operation of the two aircraft companies are an advancement against his inheritance. The most likely scenario is that these debts and assumed obligations will in fact be advancements against his inheritance.

Plaintiff testified he received income of $79,667.00 from Doyle Rogers Reality [sic] and Insurance Company in 2002, plus an additional amount for the $1,867.00 per month mortgage for the marital residence in Batesville. In 2001, this income was $78,497.00. Plaintiff receives $8,100 per year as director's fees from Metropolitan National Bank. In 2001, Plaintiff's total income was $200,000.00, in 2002 it was $216,000.00. In 2001, Plaintiff had $12,145.00 in taxable interest as reflected on line 8 (a) of his federal tax return. In 2002, Plaintiff had $7,642.00 of taxable interest. In both 2001, and 2002, Plaintiff received $42,557.00 and $42,240.00 respectively as ordinary dividends. He testified he used these funds to pay the Regions Bank debt owed for acquisition of the Rogers Bankshares stock. In 2001, Plaintiff received $66,847.00 as rental real estate and/or partnership income. This sum was $86,999.00 in 2002. These monies, Plaintiff testified, were paid over directly to his father. Plaintiff has not paid any social security or federal income taxes in 2001, and will pay none for tax year 2002. Plaintiff has substantial carry-over losses from the aircraft companies which cause him to incur no tax. In 2002, Plaintiff had total income of $216,548.00 with carry-over losses and capital gain losses of $333,420.00 leaving a negative income for tax purposes of $116,872.00.

In 2001, Plaintiff had total income of $200,046.00 with carry-over and capital gain losses totaling $503,062.00, leaving a negative income for tax purposes of $303,016.00. Plaintiff's average income for 2001, and 2002, is $208,297.00, not counting any carry-over losses or capital gain losses. Again, Plaintiff has paid no federal tax and the court assumes no state tax or FICA. $208,217.00 divided by twelve (12) equates to a monthly income of $17,358.00. Pursuant to Administrative Order No. 10, fifteen percent (15%) of that sum is $2,603.00 per month for purposes of child support. The Court is aware of Plaintiff's testimony regarding the pass through of the $42,000 each year, which is used to pay the Regions Bank debt for the Rogers Bankshares purchase, and the pass through of the real estate partnership distributions of some $67,000.00 in 2001, and $87,000.00 in 2002, to Plaintiff's father. These sums are reported on Plaintiff's income tax returns as income to him. The reason he pays no tax is obviously the result of the aircraft companies' losses being carried on Plaintiff's and Defendant's tax returns. The only reason Plaintiff and Defendant are not in bankruptcy as a result of these losses is because of Mr. Rogers Sr.'s bail-out of the companies and Plaintiff and Defendant.

....

The income Plaintiff receives and is legally required to report on his tax returns is as a result of the elder Mr. Rogers' formal and informal estate planning. Defendant has repeatedly pointed to this fact during trial and closing argument. It is clear to the Court that the income as reported on the 2001 tax return and the 2002 pro forma tax return is the income which this Court should use in assessing child support and in considering the Defendant's request for alimony.

....

The court finds that based upon the income of the Plaintiff and the need of the Defendant, the Defendant should be awarded the sum of $1,750.00 per month as alimony until further order of the Court and pursuant to Ark. Code Ann. § 9-12-312. The court further finds that based upon the income of the Plaintiff as previously stated, child support shall be set at the sum of $2,603.00 per month until the minor child reaches the age of eighteen (18) or graduates from high school, whichever is the latest to occur. The court further finds that the Defendant shall be awarded use and possession of the marital residence for as long as she desires or until she remarries. Should Defendant live with a member of the opposite sex either in the marital residence or elsewhere, the court will consider a request by Plaintiff to sell the marital residence. The Plaintiff will pay the monthly mortgage payment on the residence (including taxes and insurance) until the home is sold or the mortgage is paid in full. The parties will be equally responsible for the maintenance and upkeep of the residence for any repair which exceeds $250.00. The parties will divide any repair expense exceeding $250.00 equally....

As previously mentioned the Plaintiff owns as marital property an interest in certain partnerships which were outlined in joint exhibits 2-7. The parties also are each a twenty percent (20%) owner in Aircraft Investments Inc., and Aircraft Investments Maintenance, Inc. The Court finds that the Plaintiff shall be awarded as his separate property the interests in the aforementioned partnerships. Plaintiff and Defendant will each maintain their twenty percent (20%) interest in the two aircraft companies. However, the Plaintiff will be solely responsible for all items of indebtedness relating to Aircraft Investments, Inc., and Aircraft Investments Maintenance, Inc. Plaintiff will hold the Defendant harmless from any and all claims, demands, causes of action or attorney's fees associated with those two companies. The parties will divide equally the Wal-Mart stock and the cash value of the life insurance policy. The 3.22 shares of Rogers Bankshares will be divided with the Plaintiff having two (2) shares and the Defendant receiving 1.22 shares. The Plaintiff will be responsible for the debt to Regions Bank in the approximate sum of $411,000.00 incurred for the purchase of this stock and will hold the Defendant harmless from any claims, demands, causes of action or attorney's fees associated with that debt.

To the extent that any of the aforementioned division of property or debt is an unequal distribution, the Court finds that based upon certain factors this unequal distribution is equitable. These factors include: the length of the marriage; the ability of the Plaintiff to earn an income substantially in excess of any Defendant would ever be able to earn; the resources and assets that will be available to the Plaintiff upon divorce; the property awarded to the Plaintiff; the health and medical needs of the Defendant; and, the fact that the only realistic possibility of repayment of the corporate and personal debt of the parties is by the Plaintiff. The Court finds the Plaintiff is in a better position to bear the extra expense of the marital debt and has the only opportunity to pay the marital (personal and corporate) debt. In view of the relationship between Plaintiff and his father and the estate planning arrangement of Mr. Rogers Sr., the Court finds that the aforementioned division is equitable.

Each party will pay their own attorney's fees and costs associated with this action.

A decree incorporating the findings of fact and awarding a divorce to Rog on the basis of eighteen months' separation was entered on September 11, 2003. This appeal followed.

On appeal, appellant argues that the trial judge erred in "ignoring" Rog's interest in the irrevocable trust established by Mr. and Mrs. Doyle Rogers, Sr., in setting child support and alimony, and in dividing the marital estate. In her second point, she contends that the judge erred in treating the debt to Doyle Rogers, Sr., as a valid debt and in considering that debt when dividing the marital assets. In her third point, appellant contends that the judge should have awarded her attorney's fees.

Marital Property, Alimony, and Child Support

Appellant contends that Rog's interest as a beneficiary in a 1995 irrevocable trust created by his parents, which is worth between $3 million and $4 million, should have been a factor in the court's decision regarding child support, alimony, and the division of the marital estate. Citing Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2000), appellant argues: "The fact that one party is even a potential heir of a substantial estate should be considered when making a property division." Atkinson, however, does not require a trial court to base an award of alimony, child support, or marital assets on a party's anticipated inheritance or interest as a beneficiary in an undistributed trust.

The irrevocable trust document in issue here is under seal and was reviewed by the trial court in camera. The trust permits the beneficiaries, including Rog and his sister, to take a set amount of money annually and additional amounts for his or her maintenance or general welfare. According to Sam Fiser, Rog's and his father's accountant, Rog and his sister are now the co-trustees of this trust. Appellant contends that the amount of money available to Rog from this trust should have been considered by the trial court in setting alimony and child support and in dividing the parties' marital assets.

Alimony and property divisions are complementary devices that a trial judge employs to make the dissolution of a marriage as equitable as possible. Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002). 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 Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2005). The award of alimony always depends on the facts of the case. Killough v. Killough, 72 Ark. App. 62, 32 S.W.3d 57 (2000). The purpose of alimony is to rectify, so far as possible, the frequent 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. Davis v. Davis, supra. 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. Secondary factors that may also be considered include: (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) 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. Delacey v. Delacey, 85 Ark. App. 419, 155 S.W.3d 701 (2004).

Because Ark. Code Ann. § 9-12-315 (Repl. 2002) does not apply to the division of marital debts, there is no presumption that an equal division of debts must occur. Ellis v. Ellis, 75 Ark. App. 173, 57 S.W.3d 220 (2001). Nevertheless, the trial judge has authority to consider the allocation of debt in a divorce case. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). In fact, we have stated that an allocation of the parties' debt is an essential item to be resolved in a divorce dispute, Ellis v. Ellis, supra, and that it must be considered in the context of the distribution of all of the parties' property. Boxley v. Boxley, 77 Ark. App. 136, 73 S.W.3d 19 (2002). Questions about marital debts and whether they should be considered in assigning marital property are questions of fact, and we will not reverse decisions about them unless they are clearly erroneous. Grace v. Grace, 326 Ark. 312, 920 S.W.2d 362 (1996); Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003).

Arkansas Code Annotated section 9-12-315 provides in subsection (a)(1)(A) that all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable; in that event, the court shall make some other division that the court deems equitable, taking into consideration the following factors: (1) length of the marriage; (2) age, health, and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; (9) the federal income tax consequences of the court's division of property. The statute further states in subsection (a)(1)(B) that, when property is divided pursuant to these considerations, the court must state in the order its reasons for not dividing the marital property equally. Here, the court complied with that requirement.

Further, Arkansas Code Annotated section 9-12-315 does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Williams v. Williams, supra. The statute vests the trial court with a measure of flexibility and broad powers in apportioning property, non-marital as well as marital, in order to achieve an equitable distribution; the critical inquiry is how the total assets are divided. Id. The overriding purpose of the property-division statute is to enable the court to make a division that is fair and equitable under the circumstances. Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 442 (1990). The trial judge's findings as to the circumstances warranting the property division will not be reversed unless they are clearly erroneous. Williams v. Williams, supra. We will not substitute our judgment on appeal as to what exact interest each party should have but will only decide whether the order is clearly wrong. Id.

The amount of child support a trial judge awards lies within his sound discretion and will not be disturbed on appeal absent an abuse of that discretion. Cole v. Cole, supra. In setting child support, the trial judge is required to refer to the child-support chart, and the amount specified in the chart is presumed to be reasonable. Id. See also Ark. Code Ann. § 9-12-312(a)(2) (Repl. 2002). Before a trial judge can refer to the child-support chart to determine the presumptive child-support obligation, the payor's expendable income must be determined. Cole v. Cole, supra. The most recent revision of the child-support guidelines, Administrative Order No. 10: Arkansas Child Support Guidelines, defines income in Section II as "any form of payment, periodic or otherwise, due to an individual, regardless of source," less proper deductions for federal and state income tax, social security, Medicare, and railroad retirement, medical insurance paid for dependant children, and presently paid support for other dependents by court order. This definition is intentionally broad to encompass the widest range of sources for the support of minor children. Delacey v. Delacey, supra.

Even though Rog has access to the trust's assets, his status as co-trustee is that of a fiduciary, and although the parties did not adequately brief this issue, the law and the terms of the trust likely will impose limitations on his actual ability to take money from it. The testimony was undisputed that Rog has never received any distribution from the trust. All of the trust's assets were acquired and transferred to the trust by Rog's parents in their estate planning. Both of Rog's parents were in good health at the time of trial; thus, the date that Rog receives his full interest in the trust could be years from now. If and when Rog's financial situation significantly improves, appellant can file a petition to increase her alimony. We cannot say that the trial judge's findings regarding these issues are clearly erroneous, nor can we find that he abused his discretion. Accordingly, we affirm on this point.

Validity of the Debt to Doyle Rogers, Sr.

In her second point, appellant contends that the debt to Doyle Rogers, Sr., is not a valid debt and should not have been used by the trial judge to justify giving Rog more of the marital assets. She states: "Doyle Rogers, Sr.'s, purchase of the parties' debt aborted the parties' impending bankruptcy, and prevented a bankruptcy trustee from examining the financial affairs of Rogers, Jr., which included certain past financial manipulations of Rogers, Sr., which were contrary to convention and perhaps tax law."

Appellant testified at trial that Rog told her that she need not worry about the debt and that he would eventually account for this advance against his inheritance. She also points out that the parties made no payments on the debt and that their accountant did not include it in their 1997 financial statement. Calling the debt "illusory," appellant contends that she should have received more of the marital assets, without the debt, and that, if she had received one-half of the assets and one-half of the liabilities, she would have been able to challenge the debt on the basis of the statute of limitations and to request certain set-offs.

As between the parties, the validity of this debt obviously was a question of fact for the trial judge to determine, and his decision in that regard should not be reversed unless it is clearly erroneous. Doyle Rogers, Sr., testified that he had always planned for Rog to satisfy the debt with assets he (Doyle, Sr.) had given Rog over the years and that Rog and appellant had always known that the loan would not be forgiven and that it would be paid. Rog testified that he knew this debt would have to be repaid. Because this testimony adequately supports the trial judge's decision, we also affirm on this issue.

Attorney's Fees

Appellant further contends that she should have been awarded her attorney's fees because Rog sued her for divorce, has substantial assets, employed trial counsel with superior legal sophistication, and would not cooperate in providing discovery about his parents' trust and limited partnership. She also argues that her lack of savings or a job, and the fact that most of the property awarded to her in the divorce is not liquid, require such an award.

Although courts have the inherent power to award attorney's fees in a domestic relations proceeding, Miller v. Miller, 70 Ark. App. 64, 14 S.W.3d 903 (2000), they are not required to do so. See Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983). Unless the trial judge finds it to be equitable, there is no compelling reason for the husband to automatically pay the wife's attorney's fees. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987); Ark. Code Ann. § 9-12-309(a)(2) (Repl. 2002). In making this determination, the trial judge must consider the relative financial positions of the parties. Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000). The trial judge's decision on the issue will not be reversed absent an abuse of discretion. Miller v. Miller, supra.

Because appellant received half of the cash value of Rog's insurance policy and the Wal-Mart stock and 1.22 shares in Rogers Bancshares, will receive alimony and will have no mortgage payment, we cannot say that the judge abused his discretion in refusing to award her attorney's fees.

Affirmed.

Gladwin and Glover, JJ., agree.