Foster v. Foster , 506 S.W.3d 808 ( 2016 )

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SUPREME COURT OF ARKANSAS
No. CV-15-850
Opinion Delivered: DECEMBER 15, 2016
CHRISTOPHER FOSTER
APPELLANT
APPEAL FROM THE GARLAND
V. COUNTY CIRCUIT COURT
[DR-2013-835]
LEAH FOSTER
APPELLEE HONORABLE MARCIA
HEARNSBERGER, JUDGE
AFFIRMED; COURT OF APPEALS’
OPINION VACATED.
COURTNEY HUDSON GOODSON, Associate Justice
This case, which presents an issue of first impression regarding rehabilitative alimony,
is before us on a petition for review from the Arkansas Court of Appeals pursuant to
Arkansas Supreme Court Rule 1-2(e). Appellant Christopher Foster appeals the divorce
decree entered by the Garland County Circuit Court awarding rehabilitative alimony and
attorney’s fees and costs to appellee Leah Foster. For reversal, Christopher argues that (1)
the circuit court erred in its interpretation of the rehabilitative-alimony statute when it
applied the factors relevant to permanent alimony to support the award of rehabilitative
alimony to Leah; (2) the circuit court abused its discretion by deciding that Leah’s proffered
plan of rehabilitation supported an award of $408,000 in alimony payable over ten years;
and (3) the circuit court abused its discretion by awarding attorney’s fees and costs in
addition to rehabilitative alimony. We affirm the circuit court.
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Christopher and Leah Foster were married on February 12, 2002, and three children
were born of their marriage: A.F. (age eleven); E.F. (age seven); and F.F. (age five).
Christopher filed a complaint for divorce in September 2013, alleging general indignities.
Leah answered and counterclaimed for divorce, requesting alimony, child support, and an
unequal distribution of marital assets.
The parties reached an agreement with respect to child custody, visitation, and the
disposition of the marital residence, and a hearing was held on March 19, 2014, on the issues
of the remaining marital property, child support, alimony, and attorney’s fees. Testimony
by both parties established that Christopher was the primary source of income for the family,
while Leah was the primary caregiver to the children. Christopher testified that he was an
independent contractor for a company that sells employee-benefit plans to small businesses.
He introduced into evidence his 2011 and 2012 tax returns, which reflected that his average
gross income for those years was approximately $163,000. Christopher indicated that his
income is around $3,000 per month after all of his expenses are paid and that with the
addition of his anticipated child-support payments, he could not afford to pay alimony to
Leah. He further stated that Leah had a real-estate license and claimed that there was no
reason why she could not work.
On cross-examination, Christopher agreed that Leah transported the children to and
from school each day and stayed home with them when they were sick. Christopher
explained that the family lived in Hot Springs but that his office was in Little Rock, and he
testified that he commuted to Little Rock each day and also traveled throughout the state
for work. Thus, he indicated that he was typically unable to take the children to their
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extracurricular activities as well. With regard to the monthly expenses listed on his affidavit
of financial means, Christopher stated that the family’s monthly expenses were
approximately $11,000 each month, while his expenses, alone, totaled around $7,000. He
agreed that Leah would have additional expenses when she took over the marital residence,
including mortgage payments, taxes, insurance, and yard maintenance.
Leah testified that she and Christopher had both agreed that she would be a stay-at-
home mother so that the children did not have to attend day care full time. She had
graduated from high school but did not have a college degree. While Leah stated that she
had obtained her real-estate license in 2004, she indicated that the license had been inactive
during much of her marriage due to the births of her children. According to Leah, even
when her license was active, she had sold only one or two houses per year, primarily to
friends and family members. Information from the parties’ 2011 and 2012 joint tax returns
indicated that Leah’s taxable income from selling real estate was $8,552 and $4,500,
respectively. Leah testified that Christopher had paid all of the family’s expenses during
their marriage and that her income was used only to supplement his income and to pay for
vacations. She stated that she had maintained the home, cared for the children, and
transported them to and from school and various extracurricular activities. Leah testified
that she did not ask Christopher to stay home with the children when they were out of
school because he told her that was her job. She further stated that Christopher had told
her that she would be on welfare if she were not married to him.
Leah testified that she was asking for spousal support because the child support would
not be adequate to support the family’s monthly expenses of $6,615 as reflected in her
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affidavit of financial means. She stated that there was an economic imbalance between her
earning ability and Chris’s, indicating that she would be unable to earn a substantial income
as a realtor at the present time. According to Leah, the spousal support awarded would need
to be higher for the first several years because the children were not old enough to stay at
home by themselves, and she would be limited in her employment opportunities. She
requested $5,000 per month for the first three years, followed by $2,500 for the next couple
of years, when she would have her career started and would be earning more income, and
then $2,000 for several more years, at which time the alimony would terminate. She
attempted to introduce a written rehabilitative alimony plan; however, Christopher objected
to its admission. The circuit court allowed Leah to proffer the plan and to testify about it.
She indicated that the $5,000 per month she was requesting in alimony was not even half
of his income and that it would be easier for her to grow her real-estate business or to look
for other employment as the children got older. She further stated that she had considered
extending her education in the future.
In addition to alimony, Leah testified that she was asking Christopher to pay her
outstanding legal fees because she could not afford to do so. She introduced an itemized list
from her attorney, which included $14,190 in attorney’s fees and $647.18 in expenses for
the court reporter and for postage.
On cross-examination, Leah agreed that she had a responsibility to earn an income
sufficient to provide for her children. However, she indicated that it was difficult for her
to sell real estate in her current situation, even on evenings and weekends when Christopher
had the children, because she still had to pick up the children from school on weekdays and
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care for them until Christopher got home from work. In addition, on weekends, Leah
stated that both parents had to work together to juggle the children’s activities.
Paul Burge, who worked with Leah at Hot Springs Realty, testified that the real-
estate market in Garland County had declined in value over the past seven or eight years.
He indicated that realtors who had been selling real estate for ten to twenty years could
make a good income but that it was very difficult for realtors who were starting out due to
the time it takes to develop contacts and referrals. Burge further testified that realtors at Hot
Springs Realty must pay their own monthly dues, advertising expenses, signage, and
transportation-related expenses. According to Burge, the real-estate business is not a nine-
to-five job, and it requires odd hours. He indicated that only one agent out of thirty-four
agents at Hot Springs Realty had earned more than $100,000, and that occurred six years
ago.
Following the hearing, the parties submitted proposed findings of fact and
conclusions of law at the circuit court’s request. Both Leah and Christopher stated in their
proposed findings that Leah was requesting $5,000 per month in alimony for the first three
years following the divorce, $3,000 per month for the next three years, and $2,500 per
month for the last four years. These were also the same amounts that were set forth in
Leah’s proffered rehabilitative plan, although she had mentioned slightly different amounts
in her testimony at the hearing.
The circuit court entered the divorce decree on July 28, 2014. By agreement of the
parties, Leah was awarded primary custody of the children, with Christopher receiving three
weekend visits with the children each month and one overnight visit each week. The court
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calculated Christopher’s average monthly income as $10,363, which resulted in a monthly
child-support obligation of $2,477. The circuit court also approved the parties’ settlement
agreement regarding the disposition of the marital residence and the parties’ personal
property. Per this agreement, Leah was granted the marital residence as her separate
property after paying Christopher $35,000 for his share of the equity in the home. The
circuit court found that the parties’ IRAs were marital property and divided them equally.
Christopher was awarded his brokerage accounts in the amount of $219,262.66 as his
separate property, while Leah was awarded her bank stock valued at $204,052 as her separate
property.
With respect to alimony, the circuit court found that there was an economic
imbalance between the parties and that Christopher had been the main source of income
for the family. The court stated that Leah had been unable to generate significant income
from her occupation as a realtor due to the downturn in the real-estate market and due to
her status as the primary caregiver to the children. The court found that the parties had
enjoyed a good standard of living while they were married and that Christopher had
deposited approximately $12,000 each month into the parties’ checking account to pay for
the family’s monthly expenses. While both parties owned pre-marital property, the circuit
court noted that Leah’s bank stock was in both her name and her father’s name and found
that she had no other sources of income, while Christopher had a large income as well as a
large amount of easily accessible funds.
Based on the evidence set forth above, the circuit court found that an award of
rehabilitative alimony was appropriate under Arkansas Code Annotated section 9-12-312(b)
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(Repl. 2015). The circuit court also found that Leah’s proposed ten-year rehabilitative plan
was reasonable in terms of its duration because it allowed her to transition into the workplace
as the children became older and more independent. However, the court stated that Leah’s
requested amount of alimony was unreasonable. The court thus awarded her a lesser amount
of alimony for the first three years in the amount of $4,500 per month, finding that this
amount, when combined with child support, was sufficient to sustain her regardless of how
much income she was able to generate as a realtor or from a different job. For the following
three years, the court awarded Leah $3,500 in alimony, noting that by that time, she should
have acquired employment to supplement her income. The court then awarded Leah
$2,500 for the final four years. The circuit court concluded that this plan was reasonable in
both duration and amount because it allowed Leah to support herself and her household
while she established sufficient income as the children grew older and required less
immediate care.
In addition to alimony, the circuit court awarded Leah $14,190 in attorney’s fees and
$647.18 for expenses incurred in litigation. The court found that Leah was not in a financial
position to pay her attorney’s fees and that Christopher had liquid funds to do so.
Christopher timely appealed the circuit court’s award of alimony and attorney’s fees
to the court of appeals, which affirmed. Foster v. Foster, 2015 Ark. App. 530, 472 S.W.3d
151. Christopher then filed a petition for review with this court, alleging that this appeal
raises issues of first impression and substantial public interest concerning an award of
rehabilitative alimony after the enactment of Act 1487 of 2013. We granted the petition
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for review on this basis. When we grant a petition for review, we treat the appeal as if it
had been originally filed in this court. Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766.
In his first point on appeal, Christopher argues that the circuit court erred in its
interpretation of Act 1487 because it applied the factors applicable to permanent alimony to
support the award of rehabilitative alimony to Leah. This is an issue of first impression, as
we have not previously had an occasion to interpret the 2013 amendment to Arkansas Code
Annotated section 9-12-312(b). We review issues involving statutory interpretation de
novo on appeal, as it is for this court to determine what a statute means. Moore, supra.
However, unless it is shown that the circuit court erred, we will accept its interpretation as
correct. Holbrook v. Healthport, Inc., 2014 Ark. 146, 432 S.W.3d 593.
An award of permanent alimony is authorized under Arkansas Code Annotated
section 9-12-312(a) (Repl. 2015), which states that when a divorce decree is entered, the
circuit court may enter an order concerning alimony as is “reasonable from the
circumstances of the parties and the nature of the case.” Prior to 2013, section 9-12-312(b)
also authorized an award of temporary alimony “under proper circumstances to either party
in fixed installments for a specified period of time . . . .” In Act 1487 of 2013, the legislature
amended the language in section 9-12-312(b) to provide as follows:
(b)(1) Alimony may be awarded under proper circumstances concerning
rehabilitation to either party in fixed installments for a specified period of time so
that the payments qualify as periodic payments within the meaning of the Internal
Revenue Code.
(2) When a request for rehabilitative alimony is made to the court, the payor may
request or the court may require the recipient to provide a plan of rehabilitation for
the court to consider in determining:
(A) Whether or not the plan is feasible; and
(B) The amount and duration of the award.
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(3) If the recipient fails to meet the requirements of the rehabilitative plan, the payor
may petition the court for a review to determine if rehabilitative alimony shall
continue or be modified.
(4) A person paying alimony is entitled to petition the court for a review,
modification, or both of the court’s alimony order at any time based upon a
significant and material change of circumstances.
We have stated that the purpose of alimony is to rectify the economic imbalances in
earning power and standard of living in light of the particular facts in each case. Taylor v.
Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). The primary factors to be considered in
determining whether to award alimony are the financial need of one spouse and the other
spouse’s ability to pay. Kuchmas v. Kuchmas, 368 Ark. 43, 243 S.W.3d 270 (2006). In
addition, the following secondary factors should be considered: (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 parties’ income, both current and
anticipated; (5) the extent and nature of the resources and assets of each of the parties; (6)
the amount of income of each that is spendable; (7) the earning ability and capacity of each
party; (8) the property awarded or given to one of the parties, either by the court or the
other party; (9) the disposition made of the homestead or jointly owned property; (10) the
condition of health and medical needs of both husband and wife; (11) the duration of the
marriage; and (12) the amount of child support. Moore, supra.
Christopher recognizes, correctly, that the above-cited factors are relevant to an
award of permanent alimony. However, he contends that the legislature intended by its
2013 amendment for different factors to apply to rehabilitative alimony. He bases his
argument on the fact that the amended version of section 9-12-312(b) uses different
language than that in section 9-12-312(a). Specifically, he asserts that subsection (a) uses the
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language “reasonable from the circumstances of the parties and the nature of the case,” while
subsection (b) uses the language “under proper circumstances concerning rehabilitation.”
Under our principles of statutory interpretation, the basic rule is to give effect to the
intent of the legislature. Moore, supra. We thus construe the statute just as it reads, giving
the words their ordinary and usually accepted meaning in common language. Id. Where
the language is plain and unambiguous, we determine legislative intent from the meaning
of the language used. Simpson v. Cavalry SPV I, LLC, 2014 Ark. 363, 440 S.W.3d 335. A
statute is ambiguous only where it is open to two or more interpretations, or where it is of
such obscure and doubtful meaning that reasonable minds might disagree or be uncertain as
to its meaning. Id. We are very hesitant to interpret a legislative act in a manner contrary
to its express language, unless it is clear that a drafting error or omission has circumvented
legislative intent. Moore, supra.
Contrary to Christopher’s argument, the language in the amended version of
Arkansas Code Annotated section 9-12-312(b) does not indicate that the legislature
intended different factors to apply to rehabilitative alimony. Rehabilitative alimony was
first recognized by our court of appeals in Bolan v. Bolan, 32 Ark. App. 65, 71, 796 S.W.2d
358, 362 (1990), in which it was defined as “alimony payable for a short, but specific and
terminable period of time, which will cease when the recipient is, in the exercise of
reasonable efforts, in a position of self support.” Since then, both this court and the court
of appeals have analyzed the concept of rehabilitative alimony utilizing the same factors that
are applicable to permanent alimony. See, e.g., Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60
(1999); Dozier v. Dozier, 2014 Ark. App. 78, 432 S.W.3d 82; Dew v. Dew, 2012 Ark. App.
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122, 390 S.W.3d 764; Whitworth v. Whitworth, 2009 Ark. App. 410, 319 S.W.3d 269.
When construing a statute, we presume that the General Assembly, in enacting it, has full
knowledge of judicial decisions under preexisting law. Corn v. Farmers Ins. Co., 2013 Ark.
444, 430 S.W.3d 655. If the legislature had intended for different factors to apply to
rehabilitative alimony, it could have expressly indicated so in the language of the amended
statute. Furthermore, similar factors have been used by other states in determining whether
to award rehabilitative alimony versus another type of alimony. See, e.g., St. Cyr v. St. Cyr,
137 A.3d 332 (Md. Ct. App. 2016) (discussing statutory factors such as the parties’ past
standard of living, their earning ability and capacity, and the duration of their marriage in
determining whether rehabilitative alimony was appropriate); Gnall v. Gnall, 119 A.3d 891
(N.J. 2015) (holding that the trial court was required to consider all statutory factors in
considering whether permanent, limited-duration, rehabilitative, or reimbursement alimony
was warranted); Ward v. Ward, 755 S.E.2d 494 (W. Va. 2014) (discussing statutory factors
applicable to all awards of spousal support); Mayfield v. Mayfield, 395 S.W.3d 108 (Tenn.
2012) (same); Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993) (same). See also David
H. Relsey and Patrick P. Fry, The Relationship Between Permanent and Rehabilitative Alimony,
4 J. Am. Acad. Matrim. Law 1 (1988).
Christopher basically admits in his supplemental brief to this court that the traditional
factors applicable to alimony are also relevant to the consideration of rehabilitative alimony.
He argues that the circuit court should have engaged in a two-step analysis by first finding
that the circumstances necessary to support a conventional alimony award exist and then
also finding the existence of proper circumstances concerning rehabilitation. However, this
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is essentially what the circuit court did in this case. The circuit court found that there was
an economic imbalance in the earning power and standard of living of the parties and that
Christopher had been the primary source of income for the family. The court also discussed
the extent and nature of the assets and resources available to both parties. Because Leah had
been a stay-at-home mother for most of the parties’ twelve-year marriage, and because the
children were still at an age where they needed intensive parental care, the court found that
she needed rehabilitative alimony for a certain period of years so that she would be able to
transition back into the workforce and earn the amount of income necessary to support
herself and her household.1
While Christopher argues that these facts are not sufficient to support an award of
rehabilitative alimony, our court of appeals upheld a rehabilitative-alimony award under
similar circumstances in Dew v. Dew, supra, where the wife possessed a veterinary license but
had not worked for many years. The circuit court in that case awarded $8,000 per month
in alimony for a duration of four years. Further, in Dew, the wife was not the custodial
parent, and she therefore did not have many of the same barriers to her reentry into the
workforce that are present in this case.
We have held that a wife’s homemaker status is an appropriate factor to consider in
awarding permanent alimony. See, e.g., Taylor, supra; Kuchmas, supra; Schumacher v.
Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999). Christopher’s argument that this same
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While Justice Wood’s dissenting opinion argues that an award of rehabilitative
alimony should address or concern a divorced person’s needs to join the workforce and
achieve financial autonomy, the circuit court’s findings reflect that the alimony awarded in
this case was structured in such a way as to address those very issues.
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factor is not relevant to a decision whether to award rehabilitative alimony, which is
temporary in nature and is awarded for the specific purpose of allowing the spouse to
become self-supporting, is not persuasive. Leah had not been an active participant in the
workforce for twelve years due to her status as a stay-at-home mother to the parties’
children, and she testified that Christopher told her during their marriage that she would be
on welfare if she left him. Despite these facts, Christopher argued to the circuit court that
Leah was not entitled to any amount of alimony, whether rehabilitative or permanent. This
was unreasonable, and the circuit court was correct in considering Leah’s history as a
homemaker in deciding whether she was entitled to rehabilitative alimony.
Christopher also contends that the circuit court erred in awarding rehabilitative
alimony to Leah because she failed to present a rehabilitative plan containing concrete goals
and requirements that she must meet in order to become self-sufficient. However, Arkansas
Code Annotated section 9-12-312(b) does not mandate that a rehabilitative plan be
submitted or approved. Instead, the statute states that a plan “may” be requested by the
payor or required by the circuit court.2 Christopher made no such request in this case.
While Leah proffered a written rehabilitative plan, Christopher objected to its admission,
and the circuit court sustained the objection. Instead, the court ruled that Leah was allowed
to testify about her proposed plan. Contrary to Christopher’s argument, there is no
2
We have held that the use of the word “may” instead of “shall” indicates that the
statute is permissive or discretionary rather than mandatory. Hopper v. Garner, 328 Ark. 516,
944 S.W.2d 540 (1997). Thus, Chief Justice Brill’s dissent is incorrect that the circuit court
failed to adhere to the “statutory requirement” for a rehabilitative plan. The legislature
expressly chose not to make a rehabilitative plan a mandatory prerequisite to an award of
rehabilitative alimony; nor did the legislature choose to impose specific requirements on the
recipient of rehabilitative alimony, such as education or training.
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requirement in the statute that a rehabilitation plan contain specific goals or requirements
regarding education or training on the part of the payee. We will not read words into a
statutory provision that are not there. Scoggins v. Medlock, 2011 Ark. 194, 381 S.W.3d 781.
For this same reason, Christopher’s claim that the circuit court rendered section 9-12-
312(b)(3) meaningless by not requiring a plan with specific and concrete goals is also without
merit. This subsection merely allows the payor to petition the court for a review if the
requirements of a rehabilitative plan are not being met. The statute does not mandate that
a plan be submitted; nor does it require that any plan that is submitted contain specific,
measurable requirements.
Christopher further argues that the circuit court failed to find that Leah’s proposed
plan was “feasible” as required by the statute. Again, however, there is no requirement that
a rehabilitative plan be submitted in order to award rehabilitative alimony. Furthermore,
the circuit court specifically found after analyzing all of the appropriate factors, including
the financial circumstances of both parties, that Leah’s proposed plan was reasonable as
modified by the court. Thus, the circuit court did not err in its interpretation of section 9-
12-312(b) or in its finding that Leah was entitled to rehabilitative alimony under the facts
in this case.
In his second point on appeal, Christopher contends that the circuit court erred by
awarding Leah a total of $408,000, which included the awards of both rehabilitative alimony
and attorney’s fees and costs. He specifically argues that the circuit court abused its discretion
in setting both the amount and the duration of the alimony award.
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An award of alimony is a question within the sound discretion of the circuit court,
and we will not reverse the circuit court’s decision to award alimony absent an abuse of that
discretion. Brave v. Brave, 2014 Ark. 175, 433 S.W.3d 227; Taylor v. Taylor, 369 Ark. 31,
250 S.W.3d 232 (2007). We have held that the circuit court may make an award of alimony
that is reasonable under the circumstances, and the amount of alimony should not be
reduced to a mathematical formula because the need for flexibility outweighs the need for
relative certainty. Brave, supra. We have further emphasized that the circuit court is in the
best position to view the needs of the parties in connection with an award of alimony.
Taylor, supra.
Here, Leah presented evidence that her monthly expenses were $6,615. This was
also supported by Christopher’s testimony that the family’s expenses were approximately
$11,000 each month and that he had deposited $12,000 per month in the parties’ checking
account in order to pay their expenses during the marriage. The circuit court found that it
was not unreasonable for Christopher to pay $4,500 per month in rehabilitative alimony for
the first three years because this amount, when combined with child support, would be
adequate to support Leah and her household for that time regardless of how much income
she was able to generate from her employment as a realtor or from another job. The court
then reduced the amount of alimony to $3,500 for the following three years, when Leah
should have acquired employment sufficient to supplement her income. For the final four
years, the alimony award was reduced to $2,500, because the children will grow older and
require less intensive care, allowing Leah more opportunity to engage in full-time
employment. The circuit court noted that the ten-year period of rehabilitation is
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appropriate because at the end of that time, the parties’ youngest child will still be under
eighteen years of age.
While Christopher argues that the circuit court failed to take into account his own
monthly expenses, this is incorrect, as the court found that his average income for child-
support purposes exceeded $10,000 per month and that he also had easily accessible sources
of income from his separate, pre-marital property. Christopher attempts to bolster his
contention that the alimony award was excessive in this case by asserting that the total sum
Leah will receive during the ten-year period, including the award of attorney’s fees, is
$408,000. However, based on the circuit court’s calculation of Christopher’s monthly
income, he will have earned $1.2 million during that same ten-year period. Furthermore,
it was not unreasonable to allow Leah ten years in which to become completely self-
supporting given that she had contributed to the development of Christopher’s career during
their twelve-year marriage by being the primary caregiver to their three children. Thus,
there was no abuse of discretion by the circuit court with regard to the amount or the
duration of the rehabilitative-alimony award in this case.
In Christopher’s third and final point on appeal, he contends that the circuit court
abused its discretion by awarding $14,190 in attorney’s fees and $647.18 in litigation-related
expenses to Leah. The circuit court has the inherent authority to award attorney’s fees in
domestic-relations cases, and we will not reverse an award of fees absent an abuse of
discretion. Baber v. Baber, 2011 Ark. 40, 378 S.W.3d 699. See also Ark. Code Ann. § 9-
12-309 (Repl. 2015) (attorney’s fees in domestic-relations matters). We have also held that
the circuit court is in a superior position to determine whether to award fees due to the
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court’s intimate acquaintance with the record and the quality of the services rendered.
Harrill & Sutter, P.L.L.C. v. Kosin, 2012 Ark. 385, 424 S.W.3d 272.
Christopher challenges the circuit court’s award of attorney’s fees based on several
alleged errors in the billing statement provided by Leah’s attorney. Specifically, he argues
that the billing statement does not reflect work that Leah testified was done by an associate,
that it charges an hourly fee for a temporary hearing that he contends was instead resolved
by an agreed order, and that it does not reflect two payments that had already been made
by Leah. He therefore contends that the billing statement was insufficient to support an
award of fees because it could not be determined what work was performed, who performed
the work, the hourly rate at which the work was performed, or what payments had been
made toward the outstanding fees.
None of Christopher’s arguments demonstrate an abuse of discretion by the circuit
court in its award of attorney’s fees. All of these contentions were raised by Christopher
but were ultimately rejected by the circuit court, which awarded Leah the full amount she
had requested. In addition, as Leah asserted in her proposed findings of fact and conclusions
of law, the billing statement included only work performed through mid-March 2014, and
it therefore did not include fees for work her attorney did in connection with the divorce
hearing, posthearing briefing, or preparation of the proposed order.
Christopher also claims that Leah was not entitled to $647.18 in costs for the court
reporter and for postage. He argues that Arkansas Rule of Civil Procedure 54(d) (2016)
limits an award of costs to those items listed in subsection (d)(2) and that court-reporter fees
and postage are not included in that list. However, Rule 54(d)(2) further states that other
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expenses specifically authorized by statute are allowed, and Arkansas Code Annotated
section 9-12-309(a)(2) provides that in a divorce action, the circuit court may award either
the wife or the husband costs of court, in addition to a reasonable attorney’s fee. Thus, the
circuit court did not err by awarding litigation-related expenses such as court-reporter fees
and postage, in addition to attorney’s fees.
The circuit court found that Leah was not in a financial position to pay her attorney’s
fees, while Christopher had liquid funds to do so. This finding was supported by the
evidence presented. Accordingly, the circuit court did not abuse its discretion in awarding
Leah her requested amount of attorney’s fees and expenses.
Affirmed; court of appeals’ opinion vacated.
DANIELSON and WOOD, JJ., concur in part and dissent in part.
BRILL, C.J., dissents.
RHONDA K. WOOD, Justice, concurring in part and dissenting in part. I
join the majority’s decision to affirm the circuit court’s award of attorney’s fees. However,
I depart from the majority regarding the alimony award. The circuit court failed to apply
the rehabilitative-alimony statute’s plain language. I would accordingly reverse and remand
the alimony award. For these reasons, I concur in part and dissent in part.
This appeal involves the alimony statute. The controlling language provides that
“[a]limony may be awarded under proper circumstances concerning rehabilitation to either
party in fixed installments for a specified period of time.” Ark. Code Ann. § 9-12-312(b)(1)
(Repl. 2015) (emphasis added). This provision was amended in 2013. One of the significant
changes was the addition of the phrase “concerning rehabilitation” to this subsection. See
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2013 Ark. Acts 1487. This appeal now requires us to interpret the meaning of “concerning
rehabilitation” for the first time. The basic rule of statutory construction is to give effect to
the intent of the legislature. Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766. We construe
the statute just as it reads, giving the words their ordinary and usually accepted meaning in
common language. Id. Where the language of a statute is plain and unambiguous, we
determine legislative intent from the meaning of the language used. Id.
Rehabilitative alimony was discussed by the court of appeals in Bolan v. Bolan, 32
Ark. App. 65, 796 S.W.2d 358 (1990). The court defined rehabilitative alimony as “alimony
payable for a short, but specific and terminable period of time, which will cease when the
recipient is, in the exercise of reasonable efforts, in a position of self support.” Id. at 67 n.1,
796 S.W.2d at 360 n.1. Rehabilitative alimony is also defined as “[a]limony found necessary
to assist a divorced person in acquiring the education or training required to find
employment outside the home or to reenter the labor force.” Black’s Law Dictionary, 89
(10th ed. 2014). These definitions indicate that rehabilitative alimony should address, or
“concern,” a divorced person’s needs and requirements to join the workforce and achieve
financial autonomy.
The circuit court’s award in this case fails to comply with the newly amended
alimony statute. Most, if not all, of the court’s alimony award has nothing to do with
rehabilitation. The prominent failure is the circuit court’s decision to award Leah Foster
$4500 for the first three years following the divorce. In making this award, the court stated
that “[t]his amount of alimony combined with the child support she will receive will give
her adequate monthly income to sustain her over the next three years, regardless of how much
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she is able to generate as a realtor or in another job.” (Emphasis added.) This portion of the award
fails to “concern rehabilitation” in any significant way. Leah will have no incentive during
this period to obtain a job or to further her career as a real-estate agent. If anything, this
award is a disincentive to self-support because Leah’s monthly expenses—$6600—will be
fully covered once a $2300 monthly child-support payment is added in. She also did not
testify that she planned to use any of this money to fund education or training necessary to
start a new career; nor did the court require such. Cf. Myrick v. Myrick, 339 Ark. 1, 2 S.W.2d
60 (1999) (affirming an award of temporary rehabilitative alimony that required the husband
to pay the wife’s tuition for five years).
The circuit court also improperly tied its decision regarding the amount of alimony
to the children’s ages and Leah’s ability to care for them. The court even ends the alimony
once the children pass through their formative years. These factors are irrelevant to the
amount necessary to assist Leah in obtaining training, education, or advancement in
employment. It appears that the court has conflated the factors for child support, permanent
alimony, and property distribution with the single, narrow factor for statutory rehabilitative
alimony. And I find it impossible that the legislature intended to draw only a temporal
distinction between rehabilitative alimony and permanent alimony. In other words, the only
difference between the two cannot be that one ends and the other does not. This distinction
preceded the 2013 amendment,1 and so the newly added phrase “concerning rehabilitation”
1
During the pendency of an action for divorce, the circuit court may award funds for
maintenance. See Ark. Code Ann. § 9-12-309(a)(1)(A)(i). This temporary support is often
referred to as “temporary alimony.” See, e.g., Bennett v. Bennett, 2016 Ark. App. 308, 496
S.W.3d 409; Webb v. Webb, 2014 Ark. App. 697, 450 S.W.3d 265; see also Lewis v. Lewis,
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must mean something more. In my view, rehabilitative alimony must, at all times, promote
self-support. It cannot be used to “sustain” a former standard of living, which is the role of
permanent alimony. See Taylor v. Taylor, 369 Ark. 31, 34, 250 S.W.3d 232, 235 (2007). The
circuit court thus erred when it based the rehabilitative-alimony award upon this concern.
I recognize that a circuit court’s decision to award alimony is subject to an abuse of
discretion standard of review. Kuchmas v. Kuchmas, 368 Ark. 43, 45, 243 S.W.3d 270, 271
(2006). But an erroneous or incorrect application of a law can constitute an abuse of
discretion. See Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995). Under the
2013 amendment, alimony that has been awarded for a fixed period of time must “concern
rehabilitation.” The alimony award here does not. The court therefore abused its discretion,
and I would reverse and remand on this point.2
DANIELSON, J., joins.
HOWARD W. BRILL, Chief Justice, dissenting. The award to Leah Foster cannot
properly be categorized as rehabilitative alimony. Accordingly, I dissent.
Arkansas has long recognized a court’s authority to award alimony. See Ark. Rev.
Stat., ch. 51, § 9 (1837). When a decree of divorce is entered, the circuit court shall make
an order concerning alimony, if applicable, as is reasonable from the circumstances of the
parties and the nature of the case. Ark. Code Ann. § 9-12-312(a)(1) (Repl. 2015).
222 Ark. 743, 262 S.W.2d 456 (1953) (noting that the allowance of alimony pendente lite
was within the sound discretion of the chancellor).
2
Had the majority decided to remand, I would have also instructed the court to
consider whether ten years is “short” as discussed by Bolan, supra.
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There is a clear distinction between “permanent” alimony and “rehabilitative”
alimony. Permanent alimony is an award for continued maintenance and support of a former
spouse. See, e.g., Brown v. Brown, 38 Ark. 324 (1881) (noting that alimony is a continuous
allotment of sums payable at regular intervals for support of the former spouse). The purpose
of permanent alimony is to rectify economic imbalances in earning power and standard of
living in light of the particular facts in each case. See Taylor v. Taylor, 369 Ark. 31, 250
S.W.3d 232 (2007). The primary factors to be considered are the need of one spouse and
the other spouse’s ability to pay. See Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996).
The circuit court should also consider secondary factors, such as the financial circumstances
of both parties; 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 of the parties; and the
earning ability and capacity of both parties. Kuchmas v. Kuchmas, 368 Ark. 43, 243 S.W.3d
270 (2006); see also Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980) (listing illustrative
factors courts have used when fixing the alimony amount). In addition, this court has held
that a spouse’s status as a homemaker and stay-at-home parent can be a basis for awarding
alimony. See Taylor, 369 Ark. 31, 250 S.W.3d 232 (alimony to continue until children
reach eighteen years of age). In this case, the evidence presented to the circuit court, the
findings of the circuit court, and the foregoing factors would support an award of permanent
alimony to Leah Foster.
In contrast, rehabilitative alimony, as defined in Bolan v. Bolan, 32 Ark. App. 65, 796
S.W.2d 358 (1990), is “alimony payable for a short, but specific and terminable period of
time, which will cease when the recipient is, in the exercise of reasonable efforts, in a
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position of self support.” Id. at 67 n.1, 796 S.W.2d at 362 n.1; see also Page v. Page, 2010
Ark. App. 188, 373 S.W.3d 408 (noting that the primary purpose of rehabilitative alimony
is to afford the recipient a specific period of time in which to become self-supporting).
Rehabilitative alimony has been described as a “bridge the gap” measure to aid the recipient
spouse in making the transition from married life to being single. Whitworth v. Whitworth,
2009 Ark. App. 410, at 7, 319 S.W.3d 269, 272 (Baker, J., dissenting). For example, this
court has affirmed a rehabilitative-alimony award of tuition, books, fees, and expenses of
the plaintiff at an accredited college, vocational-technical school, or trade school until the
plaintiff completed a course of study or for five years, whichever was less. Myrick v. Myrick,
339 Ark. 1, 2 S.W.3d 60 (1999).1
The standards for permanent alimony are well established by this court’s precedent.
But the rehabilitative alimony established by Act 1487 of 2013 has different requirements.
See Act of Apr. 22, 2013, No. 1487, 2013 Ark. Acts 6579, 6581–82. “Alimony may be
awarded under proper circumstances concerning rehabilitation to either party in fixed installments
for a specified period of time so that the payments qualify as periodic payments within the
meaning of the Internal Revenue Code.” Ark. Code Ann. § 9-12-312(b)(1) (emphasis
added). Under the amended statute, the goal is rehabilitation; there must be a rehabilitative
plan for the recipient, established by the court; the plan must be feasible; and the plan must
1
During the pendency of an action for divorce, the circuit court may award funds
for maintenance. See Ark. Code Ann. § 9-12-309(a)(1)(A)(i). This temporary support is
often referred to as “temporary alimony.” See, e.g., Bennett v. Bennett, 2016 Ark. App. 308,
496 S.W.3d 409; Webb v. Webb, 2014 Ark. App. 697, 450 S.W.3d 265; see also Lewis v.
Lewis, 222 Ark. 743, 262 S.W.2d 456 (1953) (noting that the allowance of alimony pendente
lite was within the sound discretion of the chancellor).
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have requirements for the recipient to fulfill. See id. § 9-12-312(b). In addition, if the
recipient fails to meet the requirements of the plan, the payor may petition the court for
review to determine if rehabilitative alimony shall continue or be modified. Id. § 9-12-
312(b)(3). For example, if the rehabilitative plan is for the recipient to attend law school,
become a lawyer, and thus enhance future earning potential, then the payor may be ordered
to pay for tuition and other expenses for the duration of law school. If the recipient later
drops out of law school, the payor may seek relief from the court.
Here, there is no rehabilitative plan in the circuit court’s order. Leah Foster has no
requirements to fulfill. She will receive alimony every month, even if she takes no steps to
enhance her future earning potential. She need only wait and patiently watch the movement
of hands on the clock and the turn of the calendar page. If the legislature intended the
passage of time to suffice as a rehabilitative plan, it could have said so far more precisely. A
mere definite term of years is not a plan of rehabilitation.
In this case, Leah Foster did not seek to be rehabilitated. She did not seek funds to
change her status from a real estate agent to a real estate broker. She did not seek funds to
obtain an advanced college degree. Rather, she sought funds to maintain her current status
as a stay-at-home mother, raising her three minor children, and working part-time. The
circuit court correctly considered Leah Foster’s status as a stay-at-home parent and
homemaker, but under the facts and circumstances of this case, the circuit court should have
awarded permanent, not rehabilitative, alimony.2
2
Nothing in the statute bars a circuit court from awarding rehabilitative alimony in
addition to permanent alimony. For example, a circuit court could award permanent
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The mistake of the circuit court is threefold: it used the permanent-alimony factors
when deciding whether to award rehabilitative alimony; it did not adhere to the statutory
requirement for a rehabilitative plan; and it eliminated the payor’s right to seek judicial
review if the recipient fails to meet the requirements of the rehabilitative plan. In my view,
Leah Foster is entitled to permanent alimony. The award here is not rehabilitative alimony
and should not be affirmed as such. Awarding permanent alimony under the guise of
rehabilitative alimony circumvents the legislative intent in Act 1487.
For these reasons, I respectfully dissent.
Gill Ragon Owen, P.A., by: Sharon Elizabeth Echols and Christopher L. Travis, for
appellant.
Q. Byrum Hurst, P.A., by: Q. Byrum Hurst, for appellee.
alimony and also award rehabilitative alimony for the period during which the spouse is
attending school.
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