Kirby Johnson v. Donna Johnson
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DIVISION II
CA07373
November 7, 2007
KIRBY JOHNSON
APPELLANT
AN APPEAL FROM WASHINGTON COUNTY
CIRCUIT COURT
[NO. DR200611576]
v.
HONORABLE MARK LINDSAY
CIRCUIT JUDGE
DONNA JOHNSON
APPELLEE
AFFIRMED IN PART; REMANDED
IN PART
Kirby Johnson appeals from a divorce decree awarding appellee Donna Johnson
$5550 per month in alimony for one year and $2900 per month thereafter. He argues that the
trial court erred in calculating his income, in applying two of the factors set out in Boyles v.
Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980), and in awarding an excessive amount of
alimony. We affirm in part and remand in part.
Kirby and Donna were married in 1984. During most of their marriage, they owned
and operated Johnson Air, Inc., a heating and air conditioning business, which afforded them
a comfortable lifestyle. Kirby’s annual salary beginning in 2004 was $57,200 (about $4500
per month) and Donna, who kept the books at the business, earned $32,916 annually. Donna
and Kirby also owned the land upon which Johnson Air and other businesses were located
and received $6000 per month in rents. In addition, the business paid several of their
expenses, such as car payments, gas, insurance, maintenance, cell phones, some meals and
entertainment, and even clothing.
On June 20, 2006, Donna filed for divorce seeking alimony and a division of marital
property. Prior to trial, she and Kirby agreed that, with the exception of a few items, each
would receive the personal property in his or her possession; their motor home would be
consigned for sale but that Kirby could maintain possession provided he made payments on
it; Donna would have the use of their home until it sold; Kirby would receive the business
realty, with each party having the option to buy the other out; and Kirby would pay Donna
for her interest in Johnson Air, Inc. This arrangement meant that Kirby would continue to
own and operate Johnson Air and receive the rents that had been paid on the business
property. It also meant that Donna would no longer be employed at the company.
On November 16, 2006, a trial was held to determine the value of the business and
Donna’s claim for alimony. Based on a report by expert Cheryl Shuffield, the trial court
valued the business at $148,000 and ordered Kirby to pay Donna $74,000 for her share. That
ruling is not at issue on appeal. The court also awarded Donna $5550 per month in alimony
for one year, then $2900 per month thereafter with termination and modification to be
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governed by Arkansas case law and Ark. Code Ann. § 912312 (Repl. 2002). Kirby appeals
from that order, contending that the court miscalculated his income, erred in applying certain
1
This statute provides that, unless otherwise ordered by the court or agreed to by
the parties, the liability for alimony shall automatically cease upon the recipient’s
remarriage or establishment of a relationship that produces a child or children under
certain conditions.
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criteria to be considered in awarding alimony as set forth in Boyles, supra, and awarded
excessive alimony.
We review domestic relations cases de novo on the record. Taylor v. Taylor, 369 Ark.
31, ___ S.W.3d ___ (2007). An award of alimony is a question that addresses itself to the
sound discretion of the trial court. Kuchmas v. Kuchmas, 368 Ark. 43, ___ S.W.3d ___
(2006). The trial court can make an award of alimony that is reasonable under the
circumstances. Id. The purpose of alimony is to rectify economic imbalances in earning
power and standard of living in light of the particular facts in 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.
Kirby’s first argument is that the trial court miscalculated his income for support
purposes. The court found that Kirby earned $7500 per month, based on his $4500per
month salary; $1000 per month in rents; and $2000 per month in companypaid expenses.
Kirby contends that the rents and companypaid expenses should not have been included in
the calculation.
The evidence at trial revealed that four separate monthly rental payments were made
to Kirby on the business property: $3700 and $500 from Johnson Air, Inc.; $1200 from
Johnson Hardware; and $600 from Smith TwoWay Radio. Kirby testified that, from these
rents, he paid the $3887 mortgage on the business property and the $988 payment on the
motor home (in which he was residing at the time of the hearing). There was also testimony
that the $500 rental payment went toward paying an IRS debt. Kirby further states in his
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brief that the $600 rental payment “will be used to pay off the loan that was required to buy
Mrs. Johnson out of the family business,” although he cites no such testimony in the record.
Kirby contends that, because virtually all of the rental payments were earmarked for specific
purposes, they were not “profit” and should not have been considered income. We disagree.
Of the $6000 in monthly rentals, only $1000, or less than twenty percent, was
considered by the court to be income to Kirby. The court apparently took into account that
part of the rental income went toward paying the $3887 mortgage on the rental property. See,
e.g., McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001) (allowing, in
calculating income for childsupport purposes, reduction of income for losses or deductions
attributable to the incomeproducing activity). The court may also have generously made an
allowance for Kirby’s $988permonth payment on the motor home, given that Donna was
using the marital residence and Kirby was living in the motor home, which, under the terms
of the decree, obligated him to pay for it. These allowances would have reduced Kirby’s
rental income to approximately $1000, and the fact that the court made no further allowances
is not an abuse of discretion. This is especially true in light of the fact that Kirby cites no
authority for his proposition on this point and that trial exhibits showed him using the rental
account to pay some personal expenses.
Likewise, we do not find an abuse of discretion in the court’s imputing $2000 in
income to Kirby in the form of companypaid expenses. Johnson Air, Inc., paid for Kirby’s
use of two vehicles, gasoline, insurance, maintenance, cell phones, life insurance, an IRA
contribution, some entertainment and meals, and some clothing. When calculating an award
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of alimony, the trial court should consider the total income, from whatever source, of both
parties. See Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002). Income for support
purposes may include companypaid expenses. See Brown v. Brown, 76 Ark. App. 494, 68
S.W.3d 316 (2002); Weir v. Phillips, 75 Ark. App. 208, 55 S.W.3d 804 (2001) (holding that
use of a company vehicle may be considered income for childsupport purposes).
Kirby argues that Johnson Air, Inc., is facing financial difficulties and does not have
the funds to pay such expenses. However, there was a conflict in the evidence on this point,
which was the trial court’s prerogative to resolve. See McNamara v. Bohn, 69 Ark. App. 337,
13 S.W.3d 185 (2000). Kirby also questions the $2000 figure used by the court. He refers
to a portion of Shuffield’s report showing that, as of October 2006, the company had spent
far less than $2000 per month in meals and entertainment expenses, employeebenefits
expenses, and miscellaneous expenses. We note that the figures cited by Kirby do not
include vehicle expenses, insurance, and telephones, all of which were listed as separate line
items on Shuffield’s spreadsheet, and the total of these accounts for a large amount of
monthly expenses received by Kirby. Moreover, Kirby testified that his income was
$100,000 per year, which indicates that he was receiving approximately $3500 per month
more than his $57,200 yearly salary. In light of these factors, we find no abuse of discretion
in the court’s calculation of Kirby’s income.
Kirby argues next that, in awarding an increased amount of alimony during the year
following the divorce, the trial court erred in the manner it considered Donna’s health and
her ability to work. A party’s health and the ability to earn income are two of several factors
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that a trial court may consider in awarding alimony. Boyles, supra. The court here found that
Donna was fortyseven years old; that she was in an “acute state of anxiety and depression”
for which she was taking antidepressants and attending counseling; and that the
antidepressants made her sleepy and she was therefore unable to work more than half a day.
Kirby contends first that more attention should have been paid to Donna’s history of
using the antidepressant Prozac for thirteen years prior to the divorce, which did not affect
her ability to work during that time. However, Donna testified regarding her mental state
following the parties’ separation. She said that she and Kirby separated in April 2006
because Kirby had not been coming home or would come home late at night and intoxicated.
She stated that she discovered several cell phone calls he made to their nextdoor neighbor,
and after the separation, he began staying with the neighbor. As a result, Donna said, she was
“torn up” by the situation. She lost thirty to thirtyfive pounds, her hands shook, she cried
a lot, and she had difficulty sleeping. Her doctor prescribed two medications to treat her
depression and anxiety, and she began attending counseling, which was recommended to
continue for at least fourteen sessions. Based on this testimony, the trial court may have
concluded that Donna’s depression and anxiety after the separation were more acute than
before the separation and therefore had a greater impact on her ability to function. This was
a credibility determination to be made by the trial court. See generally Taylor, supra.
Kirby also argues that, if Donna’s new medicine was affecting her sleep in such a way
that she could not work, she should see her doctor and change her medication. We find no
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abuse of discretion in the trial court’s refusal to interfere with the decisions of Donna’s
medical care providers.
Additionally, Kirby notes that, at the time of the hearing, Donna was looking for a
parttime job. He further points out that the court, in its letter ruling, stated that Donna was
“unable to work more than half a day” and could not “make a significant amount of money
for the next three to six months.” Kirby interprets this to mean that Donna was capable of
working, at least on a parttime basis, far sooner than one year after the divorce. However,
the court ultimately found that, at the conclusion of twelve months, Donna “should be
working and capable of providing some of her own support in an amount equal to what she
was earning at Johnson Heat and Air.” Obviously, the court did not believe that Donna’s
desire or limited ability to begin earning parttime income within a threetosixmonth period
would rehabilitate her to the point that she could support herself in the manner she was
capable of prior to the divorce. The court was in the best position to view the needs of the
parties in connection with an alimony award. See Taylor, supra.
We also observe that Donna’s health and earning ability were only two of several
factors considered by the court in making the alimony award. The court also looked to the
length of the parties’ marriage, their standard of living, Kirby’s health and income, the value
of the couple’s property, and the fact that Kirby would retain an incomeproducing business
while Donna would not. See Boyles, supra; Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d
188 (1997). All of these factors weighed in favor of the trial court’s award.
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Additionally, Kirby claims that $5550 per month was an undue burden on him
because it amounted to over seventy percent of his $7500 income (as calculated by the trial
court). However, we adhere to no mathematical formula or brightline rule in awarding
alimony. See Kuchmas, supra; Valetutti v. Valetutti, 95 Ark. App. 83, ___ S.W.3d ___
(2006). The trial court can make an award of alimony that is reasonable under the
circumstances. Kuchmas, supra.
The award was reasonable under these circumstances. Using the parties’ testimony
and their affidavits of financial means, the court calculated Kirby’s income as $7500 per
month and his expenses as $1895 per month, leaving him with expendable income of $5605
and the ability to pay the alimony award. See Kuchmas, supra (holding that, where the
alimony obligor was left with $275 after expenses and childsupport obligations, he had the
ability to pay a $100permonth alimony award). Donna lost her job as the result of the
divorce and would not be able to regain her earning power for some time. Yet she had $5450
in monthly expenses to be met, and the trial court considered her financial need in this
regard. As stated previously, the purpose of alimony is to rectify economic imbalances in
earning power and standard of living in light of the particular facts in each case. Id. Further,
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 was
properly guided by these factors here. We therefore cannot say that the court abused its
discretion in awarding Donna $5550 per month alimony for one year.
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Kirby also contends that, if the percentages listed for support calculations in
Administrative Order No. 10 are used, a figure of $1575 in alimony would result. While the
language in some cases has indicated that the trial court should consult the chart amounts in
Administrative Order No. 10 in making an alimony award, see Cole v. Cole, 82 Ark. App.
47, 110 S.W.3d 310 (2003); Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883
(1999), those cases involved alimony paid to custodial parents, which is not the situation
here. In the present case, the trial court properly considered the relevant factors listed in
Boyles and made an award accordingly. We consequently find no abuse of discretion.
The court’s award of alimony is affirmed. In reviewing the record, the divorce decree
sets out the parties’ propertysettlement agreement but did not mention three particular items
that the parties and their attorneys agreed to divide at trial: an IRA, an annuity, and the cash
value of two life insurance policies. We remand for the limited purpose of allowing the trial
court to include an appropriate order reflecting the division of these items.
Affirmed in part; remanded in part.
GLOVER and MILLER, JJ., agree.
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