Patrick J. Powers v. Kathryn A. Powers

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

PATRICK J. POWERS

APPELLANT

V.

KATHRYN A. POWERS

APPELLEE

CA04-641

FEBRUARY 2, 2005

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. DR2003-1955-6]

HONORABLE JOHN MARK LINDSAY, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, Patrick J. Powers, alleges that the trial court erred in awarding an unequal distribution of the marital estate, and in calculating the amount of alimony and the amount of child support. He argues that the trial court's finding that appellant sexually molested his minor daughter resulted in the trial court's disposition of property and allocation of alimony and support based upon fault and that the result of the trial court's decision was to "punish" appellant for his conduct relating to the alleged child molestation. We find no error and affirm.

Appellant and appellee, Kathy A. Powers, were married on May 15, 1976, and separated on November 6, 2003. A complaint for divorce was filed on November 18, 2003, and on December 30, 2003, a felony indictment was filed accusing appellant of two counts of incest perpetrated against the parties' minor daughter. On February 12, 2004, the divorce case was tried, and a decree of divorce was entered on February 23, 2004.

The parties have two adult sons and two minor children, a daughter born on April 1, 1987, and a son born on December 28, 1990. The court awarded the exclusive care and custody of the minor children to appellee, no visitation rights to appellant, and ordered that appellant be prohibited from contacting the children in any way until further orders of the court amending the decree. Appellant does not challenge those dispositions nor the trial court's finding that appellant molested his minor daughter. In rendering its finding, the court specifically identified as credible testimony appellant's statement to the daughter's counselor that "he had a high sex drive, that his wife had not satisfied it during their marriage, and that [his daughter] had taken care of him since she was five years old." Neither does appellant expressly challenge the trial court's finding that the reason appellant is no longer working at his profession is a result of his inappropriate behavior with his daughter, whether that result is direct or indirect.

After setting out the distribution of marital assets and allocation of debt, appellant identifies certain assumptions as to what each party will realize at the sale of certain property. He then proposes that after appellant meets his obligations that the disposition leaves "him a balance of $59,594 and still facing significant legal expenses relating to his felony trial." He urges us to accept that "the alleged actions on the part of Pat Powers that allegedly caused the divorce are not relevant factors." Appellant relies upon the dissent in Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985), to support his assertion that the trial judge erred in making an unequal distribution of marital assets. The dissent in Stover stated:

It is clear that we cling to fault as the main basis for dissolution of marriage. It is qually clear that a person convicted of attempted murder will be punished by the criminal law. However, I believe it was the intention of our General Assembly to remove the punitive aspect from division of property upon divorce.

Stover, 287 Ark. at 120, 696 S.W.2d at 753 (Newborn, J. , dissenting).

We find no merit in appellant's argument that the trial court distributed the marital property based upon the fault of appellant in the divorce. In its analysis the trial court focused on the adverse financial consequences the family suffered as a result of appellant's criminal actions and the costs associated with addressing the harm resulting from appellant's conduct.

This court reviews division of marital property cases de novo. Glover v. Glover, 4 Ark. App. 27, 627 S.W.2d 30 (1982). The trial court has broad powers to distribute property in order to achieve an equitable distribution. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219(2001). The overriding purpose of Arkansas Code Annotated section 9-12-315 (Repl. 2002) is to enable the court to make a division of property that is fair and equitable under the specific circumstances. Id. Arkansas Code Annotated section 9-12-315 provides that marital property is to be divided equally unless it would be inequitable to do so. Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988). If the property is divided unequally, then the court must give reasons for its division in the order. Ark. Code Ann. § 9-12-315(a)(1)(B) (Repl. 2002); Harvey v. Harvey, supra. The code also provides a list of factors the court may consider when choosing unequal division. Ark. Code Ann. § 9-12-315(a)(1)(A)(i)-(ix) (Repl. 2002). This list is not exhaustive. A trial judge's unequal division of marital property will not be reversed unless it is clearly erroneous. Keathley v. Keathley, supra.

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. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). The trial court is vested with a measure of flexibility in apportioning the total assets held in the marital estate upon divorce, and the critical inquiry is how the total assets are divided. Id. (Emphasis added.) These broad powers, under the statute, include the distribution of all property in divorce cases, marital and non-marital, in order to achieve an equitable distribution. Id.

Under the facts presented in this case, we find no error in the trial court's distribution of property. The trial court found that the general principles of equity and fairness set out in Arkansas favored an unequal distribution of the parties' assets. The court specifically found that appellant had dissipated the family wealth and his talents and ability to earn and accumulate wealth for his family, and that his actions, especially in relation to his treatment of his daughter, had resulted in the radical wastage and dissipation of the family's assets. We reject appellant's assertion that the unequal distribution is inequitable given the significant legal expenses incurred to defend against the felony charges of molesting his daughter.

Similarly, we reject appellant's argument that the trial court erred in awarding appellee alimony and child support based upon the imputed income amount of $4,811.43 per month. We note that this amount was appellant's net monthly income prior to losing his job when he was charged with the two felony counts of incest in the Washington County Circuit Court. Appellant argues that the amounts of alimony and child support combined exceed appellant's current "net take home pay and did not allow appellant any money to provide for his needs or to pay the marital liabilities that were assigned to him by the trial court without using the meager assets he was awarded." (Emphasis added.) Appellant cites no authority for the proposition that it is error to impute income in calculating support that will result in the payor utilizing awarded marital assets to meet support obligations.

As for appellant's assertion that the trial court awarded alimony based upon fault, the trial court specifically contemplated the needs of the appellee and the ability of appellant to pay, compared the earning powers of the parties, and found that, because it had been a long marriage between the parties and appellee's income was not likely to change, that alimony should be awarded. None of these factors relate to or touch upon appellant's fault in these circumstances. Rather, it takes into account factors relevant to the award of alimony, including appellant's historical earning capacity. See Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1998); Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998).

Appellant specifically challenges the trial court's citation to Reid v. Reid, 57 Ark. App. 289, 944 S.W.2d 559 (1997), and Reid's holding that the clean-hands doctrine bars relief to those guilty of improper conduct in the matter from which they seek relief and therefore, equity will not intervene on behalf of a party whose conduct in connection with the same matter has been unconscientious or unjust. Appellant argues that the court of appeals in Reid stated that a court may consider the fact that a supporting spouse has voluntarily changed his or her employment so as to lessen earning capacity and, in turn, the ability to pay child support. He then distinguishes Reid by saying that he did not voluntarily leave his job, but rather he was terminated due to the criminal charges filed against him. However, the court in Reid specifically stated its agreement with the principle that "equity will not come to the aid of one who of his or her own volition engages in criminal behavior and suffers the consequences which affect the ability to pay child the support." Reid, 57 Ark. App. at 294, 944 S.W.2d at 562.

We therefore agree with the trial court's assessment in rendering its opinion that it was the voluntary acts of appellant that led to the consequence of his losing his job. Consequently, the trial court did not err in finding that equity did not require that appellant be afforded relief.

Neither are we persuaded by appellant's attempt to further distinguish Reid on the basis that the appellant in Reid was seeking to abate child support after being convicted of raping his sixteen-year-old daughter and incarcerated. In this case appellant was seeking relief from a determination of imputed income based upon his change in employment. The change in employment resulted from the charges of incest. The trial court specifically found that appellant had sexually molested his daughter, although he had yet to be tried criminally and incarcerated. In Reid, the trial court was not willing to abate child support awarded for the care of the child who had been raped by the payor, and here the trial court was not willing to set a lower award of support for the care of the family in a similar situation.

It is clear from a review of the record that the trial court considered the reason for appellant's reduction in income to be a result, either direct or indirect, of appellant's criminal conduct. Section III of Administrative Order No. 10 provides that a trial court may impute income to a payor working below full earning capacity after considering the reasons therefor. We find no error in this consideration.

Accordingly, we affirm.

Pittman, C.J., and Glover, J., agree.