Barker v. Barker , 66 Ark. App. 187 ( 1999 )

Margaret Meads, Judge.

Harold and Syble Barker married on November 9, 1970, and separated on March 3, 1997. A decree of divorce was entered in the Union County Chancery Court on April 9, 1998, granting appellant a divorce, dividing appellant’s pension equally between the parties pursuant to a qualified domestic relations order, awarding appellee alimony of $100 per week, and dividing the marital property unequally in favor of appellee due to appellant’s depletion of the parties’ savings account shortly before he filed for divorce. Appellant appeals the $100 per week alimony award, asserting that the chancellor abused his discretion in determining the amount of alimony to be paid. We agree, and we reverse and remand this issue to the chancellor.

An award of alimony is not mandatory, but is solely within the chancellor’s discretion, and such an award will not be reversed absent an abuse of that discretion. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). If alimony is awarded, it should be set at an amount that is reasonable under the circumstances. Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1998). The purpose of alimony is to rectify, insofar as is reasonably possible, the frequent economic imbalance in the earning power and standard of living of the divorced parties in light of the particular facts of each case. Id.; Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998).

The primary factors to be considered in awarding alimony are the need of one spouse and the other spouse’s ability to pay, Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996), but certain secondary factors may be considered in setting the amount of alimony. See, e.g., Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980); Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997). These secondary factors include (1) the financial circumstances of both parties, (2) the amount and nature of the income, both current and anticipated, of both parties, and (3) the extent and nature of the resources and assets of each of the parties. Id. Ordinarily, fault or marital misconduct is not a factor in an award of alimony. Mitchell, supra.

In the present case, the parties had been married for approximately twenty-seven years. Both parties are retired; appellant receives $675 per month from his Teamster’s pension and $872 monthly in Social Security benefits, and appellee receives $447 per month in Social Security benefits. There are no other sources of income. At the hearing, the chancellor ordered the marital home to be sold; because appellant had failed to preserve marital assets by spending most of the parties’ savings at casinos, he further ordered that appellee receive the first $7,500 in profit from the sale of the house, with the balance of the profit, if any, to be divided equally. The remainder of the personal property was divided equally among the parties, with the exception of those items that were non-marital property. The chancellor ruled appellant’s pension was marital property and ordered that it be divided equally between the parties. In awarding alimony, the chancellor’s order provides, “There is a substantial disparity in incomes of these parties and [appellant] should pay to [appellee] the sum of $100.00 per week alimony.”

Without the alimony award, adding each party’s Social Security check and one-half of the pension yields the following monthly income:

$872.00 + 337.50 = $1209.50 Appellant:

$447.00 + 337.50 = $ 784.50 Appellee:

We agree that these figures reflect a substantial disparity in the incomes of the parties, and therefore we find that an alimony award is justified.

However, the chancellor’s award has resulted in an even greater disparity in the parties’ incomes and has not rectified the economic imbalance between the parties. Taking into consideration the alimony award ordered by the chancellor, the parties’ monthly income is:

Appellant: $1209.50 - $433.40 = $ 776.10

Appellee: $ 784.50 + $433.40 = $1217.90

Appellee argues that the chancellor awarded her alimony to compensate for appellant squandering the parties’ retirement savings immediately prior to filing for divorce. We disagree. The chancellor addressed that concern separately when he ordered that appellee be given the first $7,500 in profit from sale of the marital home. The sole basis stated by the chancellor for awarding alimony was to address the substantial disparity in the parties’ income.

For the reasons stated above, we find that the chancellor abused his discretion in ordering appellant to pay $100 per week alimony, and we reverse and remand to the chancellor for a determination of the proper amount of alimony.

Reversed and remanded.

Hart, Rogers, and Stroud, JJ., agree. Bird and Griffen, JJ., dissent.