Ary v. Ary

Cite as 2013 Ark. App. 677

ARKANSAS COURT OF APPEALS
DIVISION II
No.CV-13-591

Opinion Delivered November 13, 2013

ROYCE ARY APPEAL FROM THE SALINE
APPELLANT COUNTY CIRCUIT COURT
[No. 63DR-12-383-1]

V. HONORABLE BOBBY D.
McCALLISTER, JUDGE
SONYA ARY
APPELLEE AFFIRMED

LARRY D. VAUGHT, Judge

Appellant Royce Ary appeals from the January 7, 2013 Supplemental Order to Decree

of Divorce entered by the Saline County Circuit Court, ordering Royce to pay alimony to

appellee Sonya Ary. Royce’s appeal challenges the trial court’s alimony award in a two-point

attack. He argues that the trial court erred as a matter of law when it granted Sonya alimony after

it entered the divorce decree. He also challenges the trial court’s award of alimony, including the

amount awarded. We affirm.

Sonya and Royce were married in 1993. On April 2, 2012, Sonya filed a complaint for

divorce, seeking custody of the parties’ two minor children, L.A.1 (DOB 3-5-95) and L.A.2

(DOB 4-25-01), child support, a division of property, and alimony. A temporary hearing was

held on May 8, 2012. At the hearing, the evidence revealed that Royce was a veteran with a

seventy-five-percent disability rating, for which he received a monthly disability payment of
Cite as 2013 Ark. App. 677

$1512. Royce was also employed with the federal government with net monthly earnings of

approximately $3200.

During the majority of their marriage, Sonya was a stay-at-home mom; however, more

recently she began working as a receptionist earning approximately $2100 per month. She also

served as an “on-call” bartender for the Peabody hotel. Testimony demonstrated that Sonya and

the children were living in the marital home, that the monthly mortgage payment for the home

was approximately $1200, and that Royce continued to make the mortgage payment after the

parties separated. He also continued to make the monthly payment on L.A.1’s vehicle. Both

parties testified about significant marital debt, which included the mortgage, three vehicles, a

travel trailer, a personal loan, several credit-card balances, and a loan on a retirement account.

At the conclusion of the temporary hearing, the trial court entered an order, dated May 22, 2012,

that among other things, awarded Sonya primary physical custody of the children and Royce

visitation; awarded Sonya child support in the amount of approximately $445 biweekly; ordered

Royce to continue to make the mortgage payment and L.A.1’s car payment; and ordered Royce

to pay for health insurance for the children.

The parties’ divorce hearing was held on August 7, 2012. At this hearing, there was

testimony that Royce had approximately $40,000 in his retirement account, while Sonya had less

than $80 in hers. There was evidence that the parties’ home appraised at $156,000, but the

mortgage balance was almost $155,000. The evidence revealed that both parties were driving

vehicles that had little-to-no equity in them. And the parties reported that they were unable to

agree on a property settlement.

2
Cite as 2013 Ark. App. 677

Among other issues, Sonya testified that she was in need of alimony because her monthly

expenses exceeded her monthly income by over $1200. She stated that her prior work history

included working at the mall, at her church, as a bartender, and as a receptionist. It was her

opinion that Royce had a superior earning capacity because he had a military background and

was a veteran, currently held a federal job, was more educated, and learned a trade. Royce

testified that he could not afford to pay Sonya alimony. He said that since the temporary hearing,

when he was ordered to pay child support, the mortgage, L.A.1’s car payment, health insurance

for the children, his debts, and his living expense, he had amassed credit-card debt.

At the conclusion of the divorce hearing, the trial court granted Sonya a divorce, awarded

Sonya custody of the children and child support, and awarded Royce visitation. The court told

the parties they had thirty days to negotiate a property settlement, and if they failed, the court

would order the sale of their property. The court then stated:

All issues with regard to alimony, attorney’s fees and disbursements [sic] of those
debts will be made upon the sale or settlement. I’m holding those issues in abeyance.

The specific property and indebtedness with which the parties leave a marriage
is a factor that a Court can utilize in determining alimony and attorney’s fees, and I will
be using all of that information in making that ruling.

Several months later on November 14, 2012, the trial court entered the divorce decree

that set forth the oral findings of the trial court and added the amount of monthly child support

to be paid by Royce—approximately $1000. In the decree, the trial court also stated that the

parties had executed a property settlement agreement (PSA) that provided for the disposition

of the parties’ property, debts, insurance, and other matters. Relevant to this appeal, the parties’

PSA provided that Royce would receive the marital home and the debt associated with it; each

3
Cite as 2013 Ark. App. 677

party would receive their own vehicle and the debt associated with it; Royce would receive

L.A.1’s vehicle and the debt associated with it; and Sonya would receive Royce’s retirement

account. The final paragraph of the PSA provided:

At the August 7, 2012 final divorce hearing the Court ruled that [Sonya’s] request
for alimony and attorney’s fees would be held in abeyance, pending a settlement
agreement or a commissioner’s sale if a settlement agreement were not reached. Because
the parties are not able to agree as to alimony and attorney’s fees, the parties agree that
the Court should make a finding as to a ruling on [Sonya’s] request for alimony and
attorney’s fees.

A third hearing—limited to the issues of alimony and attorney’s fees—was held on

December 12, 2012. There, Sonya testified that she received Royce’s retirement account as part

of their PSA. In return, Royce received all of the parties’ marital property, excluding some

household items. Sonya stated that she was receiving child support for the children, but that

support for L.A.1 would terminate in five months. She said that her monthly income was now

$2200 and that she had incurred over $9000 in attorney’s fees as a result of the divorce. She

added that she had assumed responsibility for the children’s medical insurance. Royce testified

once again that he did not have any disposable income to pay alimony to Sonya after paying his

debts, expenses, and child support. Later that day, the trial court issued a letter opinion:

After reviewing the evidence and all other matters in this case; and based upon
the factors required to be considered under the laws of the State of Arkansas, the Court
finds that [Royce] should be required to pay alimony to [Sonya] in the sum of $750.00
per month for five (5) years and at the conclusion of five years, reduced to $500.00 per
month for a period of five (5) years. This alimony payment would be terminated upon
death of [Royce] or re-marriage of [Sonya] or other change of circumstances allowed by
law. I am denying [Sonya’s] request for attorney’s fees.

On January 13, 2013, the trial court entered a supplemental order to the decree of divorce

restating the findings set forth in its letter opinion. It is from this order that Royce appeals.

4
Cite as 2013 Ark. App. 677

One of Royce’s points on appeal is that the trial court erred as a matter of law when it

granted Sonya alimony after it entered the divorce decree. For support he cites Arkansas Code

Annotated section 9-12-312(a)(1) (Repl. 2009), which states: “[w]hen a decree is entered, the

court shall make orders concerning the alimony of the wife . . . and the care of the children, if

there are any, as are reasonable from the circumstances of the parties and the nature of the case.”

Royce also cites two cases—Grady v. Grady, 295 Ark. 94, 99, 747 S.W.2d 77, 80 (1988), and Ford

v. Ford, 272 Ark. 506, 517, 616 S.W.2d 3, 9 (1981), which he argues stand for the propositions

that section 9-12-312 mandates that alimony decisions be made when the divorce decree is

entered and that a trial court does not have the power to retain jurisdiction or to treat alimony

as a matter “reserved for further consideration.”

However, we cannot reach the merits of this argument because Royce did not raise it

below. In Edwards v. Edwards, 2009 Ark. 580, at 7–8, 357 S.W.3d 445, 449–50, our supreme court

held that the trial court’s authority to reserve jurisdiction and defer an alimony decision after a

divorce decree has been entered, under section 9-12-312, is not an issue of subject-matter

jurisdiction. Therefore, the issue must be raised to the trial court in order to preserve the

argument for appeal. Edwards, 2009 Ark. 580, at 8, 357 S.W.3d at 450. This holding applies to

the case at bar. Royce did not raise the issue of the trial court’s authority under section 9-12-312

to the trial court. Therefore, Royce failed to preserve the argument for appeal.

Royce also challenges the award of alimony, including the amount of the alimony

awarded by the trial court. A trial court’s decision regarding alimony is a matter that lies within

the court’s sound discretion and will not be reversed absent an abuse of that discretion. Spears

5
Cite as 2013 Ark. App. 677

v. Spears, 2013 Ark. App. 535, at 5. An abuse of discretion means discretion improvidently

exercised, i.e., exercised thoughtlessly and without due consideration. Elliott v. Elliott, 2012 Ark.

App. 290, at 4, ___ S.W.3d ___, ___.

The purpose of alimony is to rectify the economic imbalance in the earning power and

standard of living of the divorcing parties, in light of the particular facts of each case. Spears,

2013 Ark. App. 535, at 5–6. The primary factors to consider are the financial need of one spouse

and the other spouse’s ability to pay. Id. at 6. Other factors include the financial circumstances

of both 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 extent and

nature of the resources and assets of each party; the amount of each party’s spendable income;

the earning ability and capacity 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. If alimony is awarded, it should be set in an amount that is reasonable under

the circumstances. Id.

Royce argues on appeal that the trial court abused its discretion in granting Sonya

alimony, claiming that the court failed to properly consider the primary and secondary factors

for determining alimony. We disagree. As set forth above, the primary factors to be considered

in awarding alimony are the needs of one party and the ability of the other party to pay. Spears,

2013 Ark. App. 535, at 6. The evidence presented demonstrated that Sonya has a need for

income. She was a housewife for the majority of the parties’ eighteen-year marriage. There is no

evidence of Sonya’s education level, and she has had no vocational training or career. Evidence

6
Cite as 2013 Ark. App. 677

showed that Sonya’s monthly expenses exceeded her monthly income. Therefore, she has the

need for income. Additionally, the evidence demonstrated that Royce has the ability to pay. He

has a military background, is a veteran, has more education than Sonya, and has learned a trade.

He is seventy-five-percent disabled, which entitles him to monthly disability, and he is gainfully

employed with the federal government.

Evidence of the secondary factors further supports the trial court’s alimony award. The

parties were married for eighteen years, during which Royce provided primary financial support

for the family. There was evidence that during their marriage the parties enjoyed a “comfortable”

standard of living, but it was shown that significant debt was accumulated as a result. As part of

the dissolution of the marriage, both parties assumed a portion of the marital debt. And while

Royce assumed a larger portion of the marital debt, he also received all of the marital assets,

which include the home, two vehicles (his and L.A.1’s), firearms, a travel trailer, and two ATVs.

Despite Royce’s disability, he has a history of employment. Sonya’s relatively good health is

support for the trial court’s limited period of alimony. For all of these reasons, we hold that the

award of alimony and the amount of alimony awarded by the trial court was reasonable under

the circumstances. Russell v. Russell, 2013 Ark. 372, at 9, ___ S.W.3d ___, ___ (holding that it is

not an abuse of discretion to make an award of alimony that is reasonable under the

circumstances). Therefore, we hold that the trial court did not abuse its discretion in awarding

alimony to Sonya.

Royce maintains that reversal is required because (1) the trial court abused its discretion

in awarding alimony to Sonya because there was an unequal distribution of property (he assumed

7
Cite as 2013 Ark. App. 677

the marital debt and she received his $40,000 retirement account); (2) the court considered his

fault in the divorce as part of the alimony decision; (3) after their separation Sonya’s expenses

were not reasonable because she was living a lifestyle beyond her means;1 and (4) after their

separation he had to use credit cards to pay child support, the mortgage on the house, and his

monthly expenses.

However, the record reflects that the parties agreed to the distribution of the marital

assets and debt. Further, nothing in the record indicates that the trial court considered Royce’s

fault in awarding alimony. As for Royce’s remaining assertions, we note that the appropriateness

of an alimony award is determined in light of the facts in each case, and the trial court is in the

best position to view the needs of the parties in connection with an alimony award. Stuart v.

Stuart, 2012 Ark. App. 458, at 9, ___ S.W.3d ___, ___. The trial court in this case found that

Sonya was entitled to alimony. In our review, we hold that the trial court applied the correct legal

standard, found facts that were supported by the evidence presented, and did not abuse its

discretion in making the award. Accordingly, we affirm.

Affirmed.

WYNNE and GLOVER, JJ., agree.

Tyson K. Spradlin, for appellant.

1
For support, Royce cites evidence that Sonya took two vacations and was spending
$230 per month at the hair and nail salon.

8