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Klever v. Klever

Court of Appeals of Arkansas, Division I

May 24, 2017

JOHN D. KLEVER APPELLANT
v.
KIMBERLY A. KLEVER APPELLEE

         APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43DR-08-747] HONORABLE JASON ASHLEY PARKER, JUDGE

          Bridges, Young, Matthews & Drake PLC, by: Michael J. Dennis, for appellant.

          The Miller Firm, by: Carla L. Miller, for appellee.

          Whiteaker and Murphy, JJ., agree.

          BART F. VIRDEN, Judge.

         This appeal arises out of a Lonoke County Circuit Court order dismissing John Klever's motion for abatement or reduction of alimony. On appeal, John argues that the circuit court erred in determining that the provision in the Klevers' divorce decree regarding alimony could not be modified. We reverse and remand.

         John and Kimberly Klever were divorced by a decree entered on December 5, 2008. The decree sets forth that

[t]he Defendant shall pay to the Plaintiff the sum of $2000 each month until one party either dies or the Plaintiff remarries . . . . Defendant shall make this payment in lieu of making child support payments, and it is acknowledged by the parties that this amount is in excess of what would be required by the Arkansas Family Support Chart. Further, this amount shall continue to be paid after the minor child turns eighteen (18) years of age and graduates from high school. Defendant shall also continue to provide health insurance coverage for both Plaintiff and the minor child through his employer for as long as the insurance provider will allow.

         The Klevers' son, who is autistic and has Down Syndrome, was seventeen years of age at the time of the divorce.

          On February 19, 2016, John filed a motion to reduce or abate alimony. He asserted that three changes of circumstances had occurred and that these changes merited reduction in the amount or abatement of alimony. First, John asserted that their son receives SSI benefits. Second, John stated that he believed Kimberly had inherited some money following the death of her mother. Third, John asserted Kimberly was employed by the school district.

         Kimberly responded with a motion to dismiss, stating that John had failed to state facts upon which relief could be granted.[1] She requested a hearing regarding her motion to dismiss.

         On June 21, 2016, the circuit court held a telephone hearing during which it heard arguments of counsel for both parties and Kimberly's testimony. John was represented by counsel and did not testify. It is not clear from our review whether he was present at the hearing.

         Counsel for Kimberly argued that the alimony agreement had been negotiated by the parties and approved by the court and thus alimony could not be modified except by consent of the parties. Counsel for John responded that John's alimony payments should be reduced or abated because the parties' son was twenty-four years old and "not a child anymore." Counsel also asserted that John believed that Kimberly or their son would inherit Kimberly's mother's estate. Last, counsel argued that the alimony agreement the parties signed and incorporated into the divorce decree was an award of the court and therefore is capable of modification without the approval of both of the parties.

         Kimberly testified at the hearing on her motion to dismiss. She explained that the divorce decree provided for payments in lieu of child support because both she and John understood that if their son accepted SSI benefits before he was eighteen years of age, he would receive a reduced amount of SSI benefits. Kimberly testified that she and John agreed that John's child-support payments would be categorized as alimony to maximize their son's SSI benefits. Kimberly stated that John earned $4000 a month, and the parties agreed that $2000 would go to her and Jacob. Kimberly testified that the parties never agreed that the rate of alimony would be reduced when Jacob began receiving SSI benefits and that the agreement stated that alimony would continue until either party died or Kimberly remarried. She testified that both parties had signed the document setting forth their agreement. Kimberly testified ...


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