DON A. SMITH, APPELLANT
GRETCHEN MARIE SMITH, APPELLEE
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT
[NO. 66DR-15-138] HONORABLE ANNIE HENDRICKS, JUDGE
Michael Hamby, P.A., by: Michael Hamby, for appellant.
Gean & Gean, Attorneys at Law, by: Roy Gean III, for
M. GLOVER, JUDGE
Don Smith appeals the Sebastian County Circuit Court's
denial of his request for alimony from appellee Gretchen
Smith. We affirm.
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.
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.
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.
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.
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).
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 ...