JOHN D. KLEVER APPELLANT
KIMBERLY A. KLEVER APPELLEE
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.
Miller Firm, by: Carla L. Miller, for appellee.
Whiteaker and Murphy, JJ., agree.
F. VIRDEN, Judge.
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.
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.
Klevers' son, who is autistic and has Down Syndrome, was
seventeen years of age at the time of the divorce.
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.
responded with a motion to dismiss, stating that John had
failed to state facts upon which relief could be
granted. She requested a hearing
regarding her motion to dismiss.
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.
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
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 ...