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Smith v. Smith

Court of Appeals of Arkansas, Division III

November 30, 2016

DON A. SMITH, APPELLANT
v.
GRETCHEN MARIE SMITH, APPELLEE

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT [NO. 66DR-15-138] HONORABLE ANNIE HENDRICKS, JUDGE

         AFFIRMED

          Michael Hamby, P.A., by: Michael Hamby, for appellant.

          Gean, Gean & Gean, Attorneys at Law, by: Roy Gean III, for appellee.

          DAVID M. GLOVER, JUDGE

         Appellant Don Smith appeals the Sebastian County Circuit Court's denial of his request for alimony from appellee Gretchen Smith. We affirm.

         Standard of Review

         The purpose of alimony is to rectify the economic imbalances in earning power and standard of living in light of the particular facts of each case. Kuchmas v. Kuchmas, 368 Ark. 43, 243 S.W.3d 270 (2006). The primary factors a court should consider in awarding alimony are the financial need of one spouse and the other spouse's ability to pay. Gilliam v. Gilliam, 2010 Ark.App. 137, 374 S.W.3d 108. The circuit court may also consider other factors, including the couple's past standard of living, the earning capacity of each spouse, the resources and assets of each party, and the duration of the marriage. Johnson v. Cotton-Johnson, 88 Ark.App. 67, 194 S.W.3d 806 (2004). We adhere to no mathematical formula or bright-line rule in awarding alimony. Valetutti v. Valetutti, 95 Ark.App. 83, 234 S.W.3d 338 (2006). The circuit court may make an award of alimony that is reasonable under the circumstances. Kuchmas, supra. The decision whether to award alimony lies within the sound discretion of the circuit court, and we will not reverse absent an abuse of that discretion. Cole v. Cole, 89 Ark.App. 134, 201 S.W.3d 21 (2005). An abuse of discretion means discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Foster v. Foster, 2015 Ark.App. 530, 472 S.W.3d 151.

         Facts

         Don and Gretchen married in November 1976 and separated in April 2015. At the divorce hearing in November 2015, Gretchen, who was fifty-eight at the time, testified her take-home pay every two weeks was $1206, and if she added her retirement contributions back in, she would take home $1400 every two weeks. She explained that while she was currently living with her mother, she hoped to move out soon and anticipated a total of $2669 in monthly expenses after she moved into her own home. According to Gretchen, although Don was receiving Social Security disability benefits, he still fished in tournaments on a regular basis and performed yard work at the marital home. Gretchen did not dispute Don was disabled-she explained that earlier in their marriage, Don had been declared disabled, but he had returned to work against doctor's advice and worked until he could work no longer; he had been declared disabled for a second time in 2010. Nevertheless, Gretchen believed Don was able to work on a part-time basis, pointing out he had received money from doing odd jobs such as consulting for remodeling or doing yard work for other people. Gretchen admitted she was currently still paying Don's gas, electricity, water, and phone bills, but she countered that when she moved out of her mother's house, she would have those expenses to pay for herself and could not afford also to pay Don alimony.

         Jason Smith, the couple's adult son, testified he had been on fishing trips with his father after Don had been determined to be disabled, and they had fished for a full day, with Don loading the fishing equipment, taking the boat off the trailer, and guiding the boat while they fished. Jason stated he had also seen his father mow and weed eat the yard and had never witnessed being limited in his ability to do things. He also admitted he and his father do not get along.

         Don testified he has been disabled since 2010 and had actually drawn Social Security disability benefits in 1981 or 1982 after having back and shoulder problems, but had returned to work against his doctor's advice. Don recounted his many health problems, including four additional ruptured discs, spondylolisthesis of the spine, depression, anxiety, high blood pressure, vascular dementia, shoulder and knee problems, Type II diabetes, and a hernia in his stomach. He stated he had undergone two surgeries that year and was scheduled for a third surgery.

         Don explained his monthly net income from Social Security disability benefits was $1115, and while the house he was currently living in was free of debt, his monthly expenses still totaled $1820. Don acknowledged that while he had been on Gretchen's health insurance during their marriage, he would no longer be able to remain on her insurance after the divorce. Don also confirmed he had Medicare Parts A and B, and $104 per month was withheld from his disability check for this insurance, but he testified he would have to pick up coverage under Medicare Parts C and D for his hospital and medical expenses, which he estimated would cost an additional $150-250 per month. Don testified his medication was not covered under Medicare, and the best plan he had been able to find cost $9839 per year for his medication. Don explained he joined his fishing clubs as a way to deal with depression and anxiety, but he had been having trouble with his back and, at times, he was unable to fish and merely had to sit and watch. He also testified he had a lot of pain when he mowed the yard. Don expressed an interest in retaining the marital home and offsetting Gretchen's interest in the house by foregoing his interest in her retirement or 401(k).

         Don's friend, Michael Hamby, a local Social Security disability attorney, testified Don's physical condition had deteriorated significantly since he met him, and there had also been lapses in Don's mental acuity and in his ability to get along with others since he had suffered a stroke. Hamby expressed an opinion that it was unusual for a person to be approved for Social Security disability benefits as quickly as Don had been approved. He explained Medicare was provided with Social Security disability benefits, and Don would be permitted to work to some extent ...


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