Zimmerman v. Pope

Cite as 2015 Ark. App. 499

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-525

GAYLE D. ZIMMERMAN Opinion Delivered September 23, 2015
APPELLANT
APPEAL FROM THE ASHLEY
V. COUNTY CIRCUIT COURT
[NO. DR-2013-53-2]

SAMUEL B. POPE HONORABLE ROBERT V.
APPELLEE GARRETT, SPECIAL JUDGE

MOTION TO SUPPLEMENT THE
RECORD DENIED; AFFIRMED IN
PART;
REVERSED AND REMANDED IN
PART

BART F. VIRDEN, Judge

Gayle Zimmerman appeals from the amended divorce decree entered in the Ashley

County Circuit Court on March 10, 2014, that modified a prior divorce decree entered on

February 28, 2013. In this amended decree, the circuit court denied Zimmerman’s request

for alimony and awarded her ex-husband, Samuel Pope, one-half of the money she had

withdrawn from her nonvested Arkansas Public Employees Retirement System (APERS)

account. Zimmerman also appeals from the circuit court’s denial of attorney’s fees and her

motion for an order of protection; and she requests that this court allow her to supplement

the record to aid in addressing this point on appeal.

We deny the motion to supplement the record. We affirm the circuit court’s denial

of alimony and attorney’s fees. We reverse the circuit court’s decision to award one-half of
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the funds withdrawn from the nonvested retirement account to Pope, and we remand the

issue for the circuit court to enter an order consistent with this opinion.

I. Facts

Gayle Zimmerman and Samuel Pope separated in September 2011 after thirty-two

years of marriage. Pope filed a petition for divorce on January 25, 2012. On April 5, 2012,

Pope, Zimmerman, and Zimmerman’s live-in companion, Bill Murray (hereinafter referred

to as “Murray”), were involved in a verbal and physical altercation at Wal-Mart in Crossett,

and on April 27, 2012, Zimmerman filed a petition for an order of protection stemming from

this event. On September 10, 2012, the circuit court held a hearing on this matter, and after

hearing testimony, the circuit court orally dismissed Zimmerman’s petition from the bench,

stating that Pope had not exhibited threatening behavior in the past six months, so there was

no fear of imminent harm. No written order was entered.

On December 12, 2012, the circuit court held a hearing where it addressed the

property-settlement agreement reached by the parties. The settlement agreement allotting

property and debt to each party was incorporated into the divorce decree, and the decree was

entered February 28, 2013. The content of the settlement agreement that relates to this appeal

concerns Zimmerman’s APERS account and the issue of alimony. According to the

agreement, Pope would receive one-half of Zimmerman’s APERS account if it vested but,

“if the interest of defendant does not vest, then plaintiff is entitled to zero.” The court set

temporary alimony at one dollar per month “with the issue of permanent alimony reserved

for a subsequent hearing and proof. The Court retains jurisdiction over this issue.” The circuit

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court also found that Pope was entitled to a divorce from Zimmerman.

On August 15, 2013, an amendment to Arkansas Code Annotated section 9-12-312

became effective and set forth “Unless otherwise ordered by the court or agreed to by the parties, the

liability for alimony shall automatically cease upon . . . living full time with another person

in an intimate, cohabitating relationship[.]” Ark. Code Ann. § 9-12-312(a)(2)(D)(Supp. 2013)

(emphasis added).

Despite the divorce decree being entered on February 28, 2013, on January 8, 2014,

the circuit court held another hearing on the outstanding issues of property and alimony. Each

party testified to his and her current and past income level, the extent of emotional and career

support they had received from each other during the marriage, and the family roles and

responsibilities they had assumed during their marriage. Both parties filed affidavits of financial

means, tax returns and forms, and pay stubs. Zimmerman specifically testified that she had

campaigned day and night for her husband during his elections, that she was the primary

caretaker of the children when they were young and that she had furthered his career at the

expense of her own professional advancement. Zimmerman testified that she is a licensed

attorney but does not earn enough in private practice to justify keeping an office open, so she

closed her practice and in 2009 began working for the Arkansas Child Support Enforcement

Unit, earning around $52,000 per year and which was the source of the contested APERS

account. At the time of the hearing, she testified that she had no income, that her health

insurance had lapsed, and that she needed extensive dental work. Zimmerman testified that

when she was fired from her job with the Arkansas Child Support Enforcement Unit, and she

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believed that because the account had not vested, the funds belonged solely to her. The

APERS account held approximately $7300. Zimmerman also testified that she and Murray

were living together in a romantic relationship and that, though Murray received income

from his business and retirement from the military, he did not contribute to the household

expenses. Zimmerman testified that she was actively searching for employment and was

receiving unemployment benefits. She testified that she was having difficulty making her

house payment, homeowner’s insurance payment, and car insurance payment. Zimmerman

asked that she be awarded alimony of no less than one-half of Pope’s net income and for the

award to last no less than thirty-three years.

Pope testified that he had received help from Zimmerman during his elections but that

she had not campaigned tirelessly. He also testified he believed Zimmerman made about

$1500 every two weeks working for Murray and that she had withdrawn the balance of her

nonvested APERS account when she was fired. He testified about his own income and

expenses as well. He testified that he paid for his son’s dental-school expenses and that he

supported his children financially while they pursued postgraduate degrees. Pope testified that

he received a salary from his position as a circuit judge, income from a trust set up by his

parents, and income from a rent house he owned. He admitted that he owed around $26,000

to Zimmerman according to the divorce decree and that he had not made all of the payments.

He also submitted exhibits to the court showing that Zimmerman had a successful law

practice in recent years.

In its January 31, 2014 order the court directed the parties to submit letters concerning

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the issues surrounding Zimmerman’s nonvested APERS account funds. The court also stated

that a letter would be forthcoming upon the issue of alimony.

In a letter dated February 10, 2014, the circuit court denied alimony to Zimmerman:

I have reviewed my notes and some of the exhibits from the January 8, 2014
hearing in the above referenced case. . . .
Ms. Zimmerman admitted that she is living with a man in an intimate,
cohabitating relationship. Under A.C.A § 9-12-312 (a)(2)(D) she is not entitled to
alimony. This was my third hearing in this case. It has been established that Ms.
Zimmerman has had a sexual relationship with this man since the parties separated
more than two-and-a-half years ago, although the exact date that Ms. Zimmerman
started living with this man was not established, it is clear that this is a long-term
relationship. The only difference between this couple and a married couple is a
marriage ceremony. Therefore the Court feels that alimony would not be appropriate
in this case whether this statute existed or not.

The circuit court also denied Zimmerman’s January 13, 2014 motion for declaratory

judgment in which she requested that the circuit court find section 9-12-312(a)(2)(D)

unconstitutional.

In its letter, the circuit court also addressed the APERS account funds disbursed when

Zimmerman’s employment was terminated. The circuit court found that because the funds

paid into the account were marital, the nonvested account was marital property, which should

be divided equally. The amended decree of divorce reflecting this change and the circuit

court’s decision concerning alimony were entered March 10, 2014. This appeal followed.

II. Issues

A. Order of Protection

First we address the issue of Zimmerman’s request for an order of protection, which

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the circuit court denied.1 The circuit court ruled orally from the bench, and no written order

was filed of record. Arkansas Rule of Appellate Procedure–Civil 2(a)(1) sets forth that an

appeal may be taken from a final judgment or decree entered by the circuit court. Without

an order addressing Zimmerman’s request for an order of protection, this court cannot reach

this issue.

B. Alimony

Zimmerman asserts several challenges to the court’s denial of her request for alimony.

She challenges the constitutionality of the statute, and she also asserts that the circuit court

abused its discretion in refusing alimony. Zimmerman also argues that the award of alimony

should have been decided under the previous statute, which was in effect when she and Pope

separated in September 2011 and at the time the original divorce decree was entered in

February 2013.

1. The constitutionality of Arkansas Code Annotated section 9-12-312(a)(2)(D)

We first address the constitutionality of the amended statute. Zimmerman appeals from

the circuit court’s denial of her motion for declaratory judgment in which she requested that

the circuit court declare section 9-12-312(a)(2)(D) unconstitutional. She argues that Arkansas

Code Annotated section 9-12-312(a)(2)(D) is unconstitutional for three reasons. First, she

asserts that the statute dictates that the award of alimony is automatically terminated upon the

recipient’s intimate cohabitation with another person, which violates the Due Process Clause.

Second, she argues that the statute disproportionately affects more women than men and

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On February 25, 2015, Zimmerman filed a motion to supplement the record with
exhibits from the September 10 and December 12, 2012 hearings. We deny the motion.

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therefore violates the Equal Protection Clause. Third, Zimmerman argues that the circuit

court’s consideration of cohabitation violates the right to privacy. We reject Zimmerman’s

constitutional arguments, and we affirm.

a. Due process

Zimmerman argues that the statute automatically, and therefore without the necessary

due process, terminates the award of alimony when a party begins intimate cohabitation. In

Summerville v. Thrower, 369 Ark. 231, 235–36, 253 S.W.3d 415, 418 (2007), our supreme

court stated our standard for reviewing the constitutionality of a statute:

It is well settled that there is a presumption of validity attending every
consideration of a statute’s constitutionality; every act carries a strong presumption of
constitutionality, and before an act will be held unconstitutional, the incompatibility
between it and the constitution must be clear. Any doubt as to the constitutionality of
a statute must be resolved in favor of its constitutionality. The heavy burden of
demonstrating the unconstitutionality is upon the one attacking it.

(Internal citations omitted.) If possible, this court will construe a statute so that it is

constitutional. See McLane S., Inc. v. Davis, 366 Ark. 164, 233 S.W.3d 674 (2006). This court

reviews the circuit court’s interpretation of the constitution de novo, and though this court

is not bound by the circuit court’s decision, the circuit court’s interpretation will be accepted

as correct on appeal in the absence of a showing that the circuit court erred. See First Nat’l

Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005).

First, we must address the meaning of the statute itself because Zimmerman relies on

statutory interpretation in furtherance of her constitutional argument concerning due process.

In determining the constitutionality of the statutes, we look to the rules of statutory

construction. Rose v. Ark. State Plant Bd., 363 Ark. 281, 289, 213 S.W.3d 607, 614 (2005).

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The basic rule of statutory construction is to give effect to the intent of the legislature. Ward

v. Doss, 361 Ark. 153, 159, 205 S.W.3d 767, 770 (2005). Where the language of a statute is

plain and unambiguous, we determine legislative intent from the ordinary meaning of the

language used. Id. In considering the meaning of a statute, we construe it just as it reads,

giving the words their ordinary and usually accepted meaning in common language. Id. We

construe the statute so that no word is left void, superfluous or insignificant, and we give

meaning and effect to every word in the statute, if possible. Id.

Arkansas Code Annotated section 9-12-312(a)(2)(D) as amended, sets forth: “Unless

otherwise ordered by the court or agreed to by the parties, the liability for alimony shall automatically

cease upon the . . . living full time with another person in an intimate, cohabitating

relationship[.]” (Emphasis added.) According to the plain language of the statute, the court

still has discretion to award alimony even if a party is involved in an intimate cohabitation,

and the parties are allowed to form an agreement concerning alimony under those

circumstances as well. In short, the statute neither disallows the judge’s use of discretion, nor

does it bar the parties from entering an agreement concerning alimony even if the party

requesting or receiving alimony enters into an intimate, cohabitating relationship. Because

Zimmerman’s assertion that the statute violates the Due Process Clause depends on her

mischaracterization of the plain language of the statute, we reject her argument. As set forth

above, the party attacking the statute bears the burden of making a clear argument

demonstrating unconstitutionality. Zimmerman’s argument is based upon an incorrect

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interpretation of the plain language of the statute; therefore, she has not clearly shown how

the statute is unconstitutional, and we reject her claim that the statute violates the Due Process

Clause.

b. Equal protection

We now turn to Zimmerman’s argument that the statute violates the Equal Protection

Clause because, even though it is written in a way that applies to either spouse regardless of

his or her sex, the cohabitation clause disproportionately affects women more than men. In

order to prove that section 9-12-312(a)(2)(D) violates the Equal Protection Clause,

Zimmerman must demonstrate there is no rational basis for the challenged clause, i.e., the

court’s ability to terminate or deny alimony based upon cohabitation with a new partner.

Under the rational-basis test, legislation is presumed constitutional and rationally

related to achieving any legitimate governmental objective under any reasonably conceivable

fact situation. Whorton v. Dixon, 363 Ark. 330, 336, 214 S.W.3d 225, 230 (2005). This

presumption places the burden of proof on the party challenging the legislation to prove its

unconstitutionality. Id.

Our supreme court set forth the rational-basis test for determining whether a statute

violates the Equal Protection Clause:

The Equal Protection Clause permits classifications that have a rational basis and
are reasonably related to a legitimate government purpose. Equal protection does not
require that persons be dealt with identically; it only requires that classification rest on
real and not feigned differences, that the distinctions have some relevance to the
purpose for which the classification is made, and that their treatment be not so
disparate as to be arbitrary. When reviewing an equal-protection challenge, it is not

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this court’s role to discover the actual basis for the legislation. Rather, we consider
whether there is any rational basis that demonstrates the possibility of a deliberate
nexus with state objectives so that legislation is not the product of arbitrary and
capricious government purposes. If a rational basis exists, the statute . . . will withstand
constitutional challenge. Under the rational-basis test, legislation is presumed
constitutional and rationally related to achieving any legitimate governmental objective
under any reasonably conceivable fact situation.

Rose, 363 Ark. At 617–18, 213 S.W.3d at 293 (internal citations omitted).

The courts have long held that the public-policy purpose of the award 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. Evtimov v. Milanova, 2009

Ark. App. 208, at 6, 300 S.W.3d 110, 115. In the touchstone case on the matter of spousal

support, Wear v. Boydstone, 230 Ark. 580, 584, 324 S.W.2d 337, 339 (1959), our supreme

court held, “[W]e see no logic in requiring a first husband to contribute at regular intervals

to an ex-wife whose care and maintenance has been assumed by a second husband.”

Though the assumption that spousal support is solely within the purview of husbands in the

event of divorce is antiquated, the meaning of the holding is still true today: the need for

alimony may cease when the support and care of the ex-spouse is taken over by another

person, and remarriage or cohabitation may be considered by the court in determining

whether alimony is necessary. See Herman v. Herman, 335 Ark. 36, 40, 977 S.W.2d 209,

211 (1998) (where our supreme court held that there was no need to modify an award of

alimony because the trial court had not found that the man with whom Ms. Herman was

cohabitating had not assumed responsibility for Ms. Herman’s care and maintenance, and

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found only that they had been living together in a sexual relationship). In short, the

reasonable governmental purpose of the statute is to help settle the economic imbalance

between the parties by assessing whether the facts of a case show a need for alimony. For

this reason, we hold that there is a rational basis to support the Arkansas Code Annotated

section 9-12-312(a)(2)(D), and the statute does not violate the Equal Protection Clause.

c. Right to privacy

Zimmerman has also failed to demonstrate that because the statute allows the court

to consider cohabitation of the parties it violates the right to privacy. Our supreme court

has held that there is a right to privacy guaranteed by the Arkansas Constitution: “[W]e

hold that the fundamental right to privacy implicit in our law protects all private,

consensual, noncommercial acts of sexual intimacy between adults.” Jegley v. Picado, 349

Ark. 600, 632, 80 S.W.3d 332, 350 (2002). As the right to privacy is a fundamental right,

we must analyze the constitutionality of a statute under strict-scrutiny review. Linder v.

Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). When a statute infringes upon a fundamental

right, it cannot survive unless a compelling state interest is advanced by the statute, and the

statute is the least restrictive method available to carry out the state interest. Thompson v.

Ark. Soc. Servs., 282 Ark. 369, 374, 669 S.W.2d 878, 880 (1984).

The compelling state interest advanced by Arkansas Code Annotated section 9-12-

312(a)(2)(D) is the court’s need to determine if the case before it presents a situation where

financial support through alimony is necessary, as discussed above in the portion of this

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opinion setting forth the public-policy purpose of alimony.

The second prong of the strict-scrutiny test is whether the statute sets forth the least

restrictive method available to carry out the state interest. Thompson, supra. This court has

held that an alimony award must always depend on the facts of the case. Killough v.

Killough, 72 Ark. App. 62, 66, 32 S.W.3d 57, 59 (2000). We have also recognized that a

circuit court is in the best position to view the needs of the parties in connection with an

alimony award. Webb v. Webb, 2014 Ark. App. 697, at 3, 450 S.W.3d 265, 269 (2014).

The primary factors in determining the award of alimony are the financial need of one

spouse and the other spouse’s ability to pay. Id. Secondary factors the court may consider

are “the circumstances of the parties; the couple’s past standard of living; the value of

jointly owned property; the amount and nature of the income, both current and

anticipated, of both parties; the disposition of the homestead or jointly owned property; the

condition of health and medical needs of the parties; and the duration of the marriage.” Id.

at 3–4, 450 S.W.3d at 269.

In divorce cases where spousal support is requested, delving into the private lives

of the parties is the least restrictive method, and indeed the only method, the court has to

determine the circumstances of the parties, to evaluate the facts of the case at hand for the

presence of the factors listed above, and ultimately to determine whether financial need

exists. Therefore, the compelling state interest is achieved by the least restrictive means

possible, and the statute withstands strict-scrutiny analysis. We reject Zimmerman’s

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argument that the statute violates the constitutional right to privacy. The circuit court

based its decision on a constitutionally sound statute; therefore, we affirm.

d. The previous statute v. the amended statute

We now turn to Zimmerman’s argument that the circuit court should have applied

the previous statute that allows the court to consider remarriage of the party, rather than

the amended statute that allows the court to consider Zimmerman’s cohabitation with

Murray. Zimmerman neither develops any legal argument nor cites any authority

supporting her assertion that the previous statute should apply. We have consistently held

that we will not consider an argument on appeal that has no citation to authority or

convincing legal argument, nor will we research or develop an argument for appellant.

Cooper v. Cooper, 2013 Ark. App. 748, at 9, 431 S.W.3d 349, 355. It is impossible for our

court to conduct a meaningful review in a case where the appellant offers no authority or

convincing argument to support allegations of error. City of Greenbrier v. Roberts, 354 Ark.

591, 594, 127 S.W.3d 454, 456 (2003). Therefore, we decline to address the issue here.

e. Abuse of discretion

Finally, concerning the issue of alimony, Zimmerman argues that the circuit court

abused its discretion because it did not properly consider all of the evidence presented at

the January 8, 2014 hearing and decided the issue solely on cohabitation. Zimmerman’s

argument is not supported by the facts; therefore, we affirm.

The circuit court found that it would not have awarded alimony under either the

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previous version of Ark. Code Ann. § 9-12-312(a)(2)(D), which allowed the court to

terminate alimony upon remarriage of one of the parties, or the current version of the

statute, which extends the court’s ability to consider modern living arrangements. The

circuit court found that, in making its decision, it reviewed its notes from the hearing and

the exhibits submitted concerning the issue of alimony, indicating that it took into account

more than just living arrangements. The testimony from both Zimmerman and Pope went

far beyond the one issue of cohabitation and indeed, concerned both parties’ current and

past incomes, earning capacities, age, health, and expenses. In fact, the exhibits were strictly

related to the financial situations of both parties and did not concern cohabitation at all.

The decision to grant alimony lies within the sound discretion of the circuit court

and will not be reversed on appeal absent an abuse of discretion. Taylor v. Taylor, 369 Ark.

31, 250 S.W.3d 232 (2007). A circuit court abuses its discretion when it exercises its

discretion improvidently, or thoughtlessly and without due consideration. Stuart v. Stuart,

2012 Ark. App. 458, at 3, 422 S.W.3d 147, 150. Alimony is not available under the

common law, but is a creature of statute, and a discretionary one at that. See Wilson v.

Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). The appropriateness of an alimony award

is determined in light of the facts in each case, and the circuit court is in the best position

to view the needs of the parties in connection with an alimony award. Stuart, 2012 Ark.

App. 458, at 9, 422 S.W.3d at 153.

A careful review of the testimony of the parties and the exhibits each party

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submitted to the court shows that there was ample evidence presented and considered by

the circuit court in making its determination. We cannot say the court acted improvidently,

thoughtlessly, or without due consideration. We find no error, and we affirm the denial of

alimony.

C. Attorney’s Fees

We also reject Zimmerman’s argument regarding attorney’s fees and costs. She failed

to seek them at the trial court level and is barred from requesting them now. Arkansas Rule

of Civil Procedure 54(e)(2) sets forth, “Unless otherwise provided by statute or order of

the court, the motion must be filed and served no later than fourteen days after entry of

judgment[.]” There is nothing in the record or addendum showing that Zimmerman

orally or in writing requested attorney’s fees within fourteen days of the entry of judgment;

therefore, we deny her request.

D. Retirement Account

Zimmerman asserts that the circuit court was barred from amending the original

agreement incorporated into the decree. Pope argues that the circuit court created an

equitable remedy by modifying the original decree and awarding half of the nonvested

APERS account to him. On this point we reverse and remand with directions to the

circuit court to reinstate the original order concerning Zimmerman’s APERS account.

In Helms v. Helms, 317 Ark. 143, 145, 875 S.W.2d 849, 851 (1994), our supreme

court held,

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In the absence of fraudulent inducement in executing an integrated property
settlement agreement, a divorce decree may not be judicially modified. This
agreement was incorporated into the decree and approved by the chancellor. The
fact that appellant entered into an agreement which later appeared improvident to
him is no ground for relief, and it may not now be modified.

The original decree entered February 28, 2013, which incorporated the settlement

agreement between the parties, stated that the APERS account was to be divided if

Zimmerman vested. According to the agreement, if the account did not vest, Pope was

“entitled to zero.” In February 2013, Zimmerman was fired shortly before she vested. In

a letter dated February 10, 2014, the circuit court explained why it changed its order:

Ms. Zimmerman contributed money to an APERS account during the
marriage. After the divorce was granted in 2013, she withdrew that money. That
money is marital property and Judge Pope is entitled to 50% of that money. The
money she contributed to that account was marital, therefore the money she
withdrew is marital.

The circuit court modified the specific contractual terms of the agreement that were

incorporated into the divorce decree, which, in the absence of fraud, it was not authorized

to do. As in the Helms case, the agreement was binding on this issue. We reverse on this

point, and we remand for the circuit court to reinstate the original settlement agreement

it approved and that was integrated into the divorce decree.

III. Conclusion

We deny the motion to supplement the record; we affirm the denial of the award

of alimony and attorney’s fees; we reverse the award of half of the nonvested APERS

account funds to Pope; and we remand for the circuit court to reinstate the original

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agreement incorporated into the decree on this issue.

Motion to supplement the record denied; affirmed in part; reversed and remanded

in part.

GLADWIN, C.J., and HIXSON, J., agree.

Gayle D. Zimmerman, pro se appellant.

Byrd Law Firm “P.A.” by: John Richard Byrd, Sr., for appellee.

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