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Nelson v. Nelson

Court of Appeals of Arkansas, Division III

September 21, 2016

MICHAEL E. NELSON APPELLANT
v.
JANICE NELSON APPELLEE

         APPEAL FROM THE BRADLEY COUNTY CIRCUIT COURT [NO. DR-2014-52-2] HONORABLE KENNETH JOHNSON, JUDGE

          Parker Law Firm, by: Tim S. Parker, for appellant.

          Wynne Law Firm, by: Tom Wynne, for appellee.

          BART F. VIRDEN, Judge

         The parties in this case divorced after thirty years of marriage. Appellant Michael Nelson argues that the circuit court erred in awarding permanent alimony of $2500 per month to appellee Janice Nelson. Michael also asserts that the circuit court erred in unequally distributing the marital property in favor of Janice and in ordering him to pay the greater share of the marital debt. We find no error, and we affirm.

         I. Facts

         On April 10, 2014, Janice Nelson filed for divorce on the ground of general indignities. Janice requested $4500 per month in alimony and for the court to divide the property and debt. Michael Nelson counterclaimed for divorce, and he requested that Janice's complaint be dismissed. Michael also requested that the circuit court equally divide the property and the debt. Janice filed an amended complaint for divorce on December 10, 2014, alleging adultery and again requested alimony and for the circuit court to divide the property. Michael waived corroboration of grounds.

         On April 14, 2015, Michael filed an answer and counterclaim asserting general indignities as grounds for the divorce. He asserted that Janice was a beautician and could derive substantial income from pursuing that career. Michael stated in his complaint that he was unemployed and "lacked ready cash" to pay alimony. He also argued "unclean hands" and that Janice admitted to having had an affair while they were married. Michael also claimed that if the affair had not actually occurred, then Janice committed "intentional fraud in the infliction of mental or emotional distress" by lying about the affair. Michael also asserted that Janice had not stated why she was entitled to alimony.

         In her response, Janice denied having had an affair. In an amended complaint, filed on April 20, 2015, Janice stated that she should be awarded alimony because during their thirty-year marriage, Michael had been the primary source of income, with a salary over $200, 000 for the past five years. By contrast, her income was around $20, 000. She alleged that he had the ability to pay and significantly more education and ability to earn than she did.

         On May 15, 2015, the circuit court held a hearing on the matter. Janice testified that she was the caregiver to her six-year-old granddaughter and that she did not receive child support from the child's parents. She testified that she was a licensed beautician, and she had worked off and on during their marriage; however, most recently and at the time of the hearing, she was the secretary for the City of Warren. Janice testified that she made around $18, 000, and she was receiving food stamps. She testified that her monthly expenses were around $3500, not including credit card debt, and that her monthly income was around $1500. Michael had been sending her money to pay bills since they separated, but he had ceased sending money in the spring of 2015.

         Janice testified that in 2014 Michael spent $13, 000 on his girlfriend in one nine-day period; $6000 on jewelry another time; and $3200 during a trip the two took together. She stated that Michael had also bought his girlfriend's son a car. Janice also testified about the equity in their three homes and about the debt remaining on each of the homes. Janice testified that she had not had an affair but told Michael that she had in order to upset him.

         At the hearing Michael testified that due to the nature of his work as a computer consultant, he had lived mostly in hotels over the years which were paid for as part of his work contract. He had become tired of living in hotels and had recently opted to live in a lake house and that his portion of the rent had been $450 a month. At the time of the hearing he was living with friends. Michael estimated that he owed $200, 000 on delinquent income taxes from 2013 and 2014. Michael testified that he would have his current salary for four months after the hearing and that he had been offered a job in Orlando for $120, 000 a year including moving expenses. Michael stated that his prospects for work were good, just not as good as they had been due to outsourcing his type of work to other countries. Tax returns confirmed that Michael's income had been over $250, 000 in 2009 and 2011.

         Michael admitted to the affair with Tina Martin and that he had spent around $45, 000 on her and her family in 2013-2014.

         On August 21, 2015, the circuit court entered its order. The circuit court granted the divorce to Janice on the ground of adultery. It awarded the marital residence in Warren to Janice with the instruction that she would assume the mortgage of $37, 000. The circuit court found that the equity in the marital home was $73, 000. Michael's mother's residence was awarded to Michael, and the circuit court found that the debt remaining on that house was $16, 000 and that it had equity of $59, 000. The circuit court awarded Janice's parents' home to Janice with the debt remaining on that house at $13, 000 and the equity amounting to $17, 000. The court recognized that the division of the property was unequal and noted that in apportioning the property it considered the amount of money from the marital assets that had been spent on Michael's girlfriend and her family. The circuit court also took into account the fact that Michael had taken the contents of a marital bank account. Both parties were awarded their cars and personal belongings. Michael received his boat and boat trailer and his motorcycle and its trailer. Michael was awarded the balance of the Bank of America account and half of the AFCU account as well.

         The circuit court found that on average over the past five years, Michael had earned around $250, 000 per year, and Janice had earned around $18, 000 per year. The circuit court noted that Janice was currently the secretary for the City of Warren and was receiving food stamps to supplement her income. During the marriage Janice had primarily been a housewife, and Michael had been, and was currently, a computer technology consultant. The circuit court found that though Michael had been unemployed for a time, he had ...


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