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Berry v. Berry

Court of Appeals of Arkansas, Division II

March 8, 2017

JOSEPH BERRY APPELLANT
v.
DANA BERRY APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTEENTH DIVISION [NO. 60DR-10-2467] HONORABLE RICHARD MOORE, JUDGE

          LaCerra, Dickson, Hoover & Rogers, PLLC, by: Traci LaCerra, for appellant.

          Coplin & Hardy, PLLC, by: Betty J. Hardy, for appellee.

          N. MARK KLAPPENBACH, Judge.

         This appeal concerns a request to modify alimony in a postdivorce proceeding. Appellant Joseph Berry and appellee Dana Berry were divorced by a September 2013 Pulaski County Circuit Court decree after twenty-nine years of marriage. In the decree, Joseph was ordered to pay Dana $4, 000 per month for fifteen years to be followed by $3, 000 per month until Dana's remarriage or the death of either party. There were substantial assets awarded to both parties in the divorce, and their three children were no longer minors at the time of divorce. In August 2015, Joseph filed a motion for modification of alimony, contending that there were material changes in circumstances. Specifically, Joseph claimed that Dana had inherited substantial assets from her mother and that Dana no longer had a need for alimony. After a hearing conducted in March 2016, the trial court found that although Dana had inherited assets from her mother, this was not an unanticipated material change that justified a termination or modification of alimony. Appellant appeals the order issued by the trial court. We affirm.

         The standard of review is well settled. We review domestic-relations cases de novo, but we will not reverse a circuit court's finding of fact unless it is clearly erroneous. Hunter v. Haunert, 101 Ark.App. 93, 270 S.W.3d 339 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that the circuit court has made a mistake. Id. In reviewing a circuit court's findings of fact, we give due deference to the court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008); Blalock v. Blalock, 2013 Ark.App. 659.

         The law on modification of an alimony award is also well settled. Modification of an alimony award must be based on a significant and material change in the circumstances of the parties, and the burden of showing such a change in circumstances is on the party seeking the modification. Ark. Code Ann. § 9-12-312(a)(7) (Repl. 2015); Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998). The purpose of alimony is to rectify the frequent imbalance in the earning power and standard of living of the parties in light of the particular facts of each case, and the primary factors to be considered in making or changing an award of alimony are the need of one spouse and the ability of the other spouse to pay. Herman, supra. Secondary factors that may be considered include the financial circumstances of both parties, the couple's past standard of living, the amount and nature of the parties' current and anticipated incomes, the extent and nature of each party's resources and assets, the amount of income of each that is spendable, the health condition and medical needs of each party, the duration of the marriage, the amount of child support, and the earning ability and capacity of each party. Johnson v. Cotton-Johnson, 88 Ark.App. 67, 194 S.W.3d 806 (2004). An award of alimony is a matter lying within the discretion of the trial court, and it will not be reversed absent an abuse of that discretion. Hix v. Hix, 2015 Ark.App. 199, 458 S.W.3d 743. The trial court has the authority to make an award of alimony that is reasonable under the circumstances. See Brave v. Brave, 2014 Ark. 175, at 10, 433 S.W.3d 227, 233. It is not our duty under our standard of review to simply substitute our judgment for that of the circuit court, which was in a far better position to judge the credibility of the witnesses. See Whitworth v. Whitworth, 2009 Ark.App. 410, 319 S.W.3d 269.

         With these rules to guide our decision-making, we examine the proceedings before the trial court in greater detail. In the 2013 divorce decree, Dana was awarded the marital home valued at $384, 000, free of any encumbrances.[1] Joseph was awarded the parties' townhouse in Oxford, Mississippi, that had $32, 000 in equity. The parties owned three condominium properties that were to be sold and the proceeds divided equally, after payoff of $344, 067 still owed on those properties and the expenses related to sale. Because Joseph lived rent-free in one of these properties and received rental income from a roommate, Joseph was made responsible for the costs and expenses associated with the condominiums until sold. Regarding office properties the parties owned, each was awarded $6, 871.50 in equity. The parties evenly divided the marital accounts, each receiving $183, 751.50. The vast majority of the parties' personal property remained in the marital home and was awarded to Dana. Joseph retained his accounting business, Berry & Associates, which was valued over one million dollars. Dana was awarded $105, 042 as her marital portion of the business, to be paid to Dana in monthly installments over five years.

         In addressing alimony, the trial court's order recited that Joseph had historically earned four to five times more than Dana; that Joseph owned and controlled his own accounting firm and made discretionary withdrawals from the business account; that Dana was an employee at Stone Ward, which was less permanent than Joseph's situation; that the parties enjoyed a very comfortable lifestyle; that Joseph's potential was for a continuation, if not an increase, in his business income; that Joseph was ordered to assume certain debts and obligations regarding the real property; that this was a twenty-nine-year marriage wherein Dana was primarily responsible for the home and the family, although she assisted at times with Joseph's business needs; and that Dana had medical conditions that might require specialized treatment in the future. The trial court concluded that after consideration of these factors, coupled with Dana's needs and Joseph's ability to pay, alimony would be paid in the amount of $4, 000 per month for the first fifteen years, and then $3, 000 per month until Dana's remarriage or either party's death. There was no appeal from this order.

         In August 2015, Joseph filed his motion to terminate alimony, asserting that due to Dana's inheritance, she no longer had a need for alimony. In September 2015, Dana filed a response to Joseph's motion wherein she resisted his request, noting that the original award of alimony was based on a host of factors. Her response recited that "[t]he alimony awarded in this is not simply based on the Plaintiff's need, and therefore, the recent death of the Plaintiff's mother and potential inheritance is not a basis for modification."

         At the March 2016 hearing, Dana testified that she was fifty-six years old[2] and earned approximately $77, 905 in annual salary. She agreed that she had increased her retirement contributions from each paycheck, noting that she had no way to save for retirement while she was a stay-at-home mother. Dana stated that she was still paying for the parties' son's college expenses;[3] that she had ongoing house repair costs because it was a twenty-five-year-old house;[4] that she had a net worth of $735, 000; that she was still working at Stone Ward and had received raises; that she had no unsecured debt, but her 2010 model vehicle had 107, 000 miles on it; and that she hoped to continue helping pay some of their son's expenses on a monthly basis because their son anticipated going to graduate school. Dana said that she testified about her mother's ill health back in 2013 while divorce proceedings were underway, noting "her impending passing at some point in the near future." Dana said that she inherited her mother's assets, which were valued at approximately $448, 000. The assets attributable to Dana's mother included life insurance policies, checking and savings accounts, proceeds from the sale of her mother's car, proceeds from the sale of her mother's house, and proceeds from an estate sale of her mother's personalty (furniture, decorative items, etcetera). She stated that she still had problems with vertigo but that it had not often prevented her from working. She testified that she had worked at Stone Ward, a public-relations firm, for about eight years, but it was not necessarily secure and stable income because there were sometimes changes in clientele or the amount of work billed to clients.

         Joseph testified to his belief that Dana's net worth was $1, 333, 382 and that her annual gross income was actually closer to $92, 000. Joseph said that Dana's personal financial statement revealed the additional assets. Joseph stated that although Dana was helping to support their son, he was set to graduate from college in May, ending that expense. Joseph added that their son had earned about $10, 000 in an internship that would go toward graduate expenses, and he (Joseph) intended to buy their son a car upon graduation. Joseph stated that his own net worth was $694, 136, and he had significant debt, whereas Dana had no debt. Joseph asked that alimony be terminated because "a million four is adequate for any individual, " and Dana no longer had a need for alimony. Joseph testified that he built a new house in Mississippi that was worth $490, 000, and he had $390, 000 in equity. Joseph's income was over $400, 000 annually, according to a recent financial statement that he provided as an exhibit. He agreed that he had the ability to pay the alimony, but he questioned Dana's need, pointing to her having excess income at the end of every month with which she was simply funding her retirement accounts.

         At the conclusion of the hearing, Dana's attorney reiterated that a multitude of factors entered into the trial court's decision on the original award of alimony and that the only alleged change was her inheritance from her mother, which was not material enough to warrant a termination of alimony. Joseph's attorney argued that Dana's inheritance, as well as her voluntarily increasing her investments and retirement accounts, showed that she did not have any unmet needs that alimony should fill.

         The trial judge issued a letter opinion in April 2016. In it, the trial court noted that Joseph's primary contention was that Dana's inheritance from her mother constituted the material change in circumstances that warranted a modification of alimony. The trial court reiterated the division of assets in the original divorce proceedings, and it restated ...


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