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Mason v. Mason

Supreme Court of Arkansas

June 22, 2017



          James Law Firm, by: Bobby R. Digby II, for appellant.

          Hilburn, Calhoon, Harper, Pruniski & Calhoun, LTD., by: Sam Hilburn and Scott Hilburn, for appellee.

          SHAWN A. WOMACK, Associate Justice

         Debra Mason appeals from an order in the Pulaski County Circuit Court terminating her previous alimony award pursuant to Ark. Code Ann. § 9-12-312(a)(2)(D) (Repl. 2015). She argues that the statute may not be applied retroactively to divorce decrees entered prior to a statutory amendment, the statute is unconstitutionally vague, and the circuit court's previous order stated the only grounds upon which alimony would terminate, rendering the statute inapplicable.[1] We accepted certification of this case from the court of appeals on the basis that it involves issues of first impression; significant issues needing clarification or development of the law; and substantial questions of law concerning the validity, construction, or interpretation of an act of the General Assembly. See Ark. Sup. Ct. R. 1- 2(b)(1), (5), & (6); Ark. Sup. Ct. R. 1-2(d). We hold that the mandatory termination language in the statute does not apply retroactively to automatically terminate alimony awards entered before the 2013 amendment. We therefore remand to the court of appeals to address the merits.[2]

         On March 24, 2010, Charles Mason filed a complaint for divorce in the Pulaski County Circuit Court. On August 4, 2011, the court entered a divorce decree and noted that Charles is a physician who makes between $350, 000 to $380, 000 per year, while Debra, who has an accounting degree, had not worked substantially during the marriage and made approximately $39, 000 per year. Considering the economic discrepancy, the court awarded Ms. Mason $3, 500 per month for thirty-six months and then $1, 500 for an additional sixty months or until she remarried.[3] On February 5, 2014, Debra filed a motion to modify the alimony award, and Charles responded that, based on a revision to Ark. Code Ann. 9-12-312(a)(2), his obligation to pay alimony terminated as an operation of law when she began living with her boyfriend. Debra responded by arguing that applying a 2013 statute to a 2011 divorce decree would apply the statute retroactively, the statute was unconstitutionally vague, and the court "otherwise ordered" that the alimony award would not terminate.

         On August 1, 2014, the circuit court entered an order finding that the statute was not unconstitutionally vague, that Debra and her boyfriend cohabitated full-time, and that she was not entitled to any increase in alimony. On October 29, 2014, the circuit court held that applying the act to the divorce decree would not have a retroactive effect and that Charles' obligation to pay alimony ceased as a matter of law. Debra appealed, but the court of appeals dismissed for lack of a final order. Mason v. Mason, 2015 Ark.App. 644. The circuit court entered a final order on February 23, 2016, and Debra timely appealed that order.

         Retroactive Application

         The relevant statute provides:

Unless otherwise ordered by the court or agreed to by the parties, the liability for alimony shall automatically cease upon the earlier of:
(D) The living full time with another person in an intimate, cohabitating relationship.

Ark. Code Ann. § 9-12-312(a)(2)(D) (Repl. 2015). The circuit court determined that applying the statute to the divorce decree would not amount to retroactive application because it would only affect future alimony payments. See Bethell v. Bethell, 268 Ark. 409, 415, 419, 597 S.W.2d 576, 579, 581 (1980) (entitlement to alimony vests "as the payments accrue" and a cause of action and right to payment accrues as of that date).

         Retroactivity is a matter of legislative intent. Bean v. Office of Child Support Enf't, 340 Ark. 286, 296, 9 S.W.3d 520, 526 (2000). Generally, statutes are construed as having only a prospective operation, unless the purpose and intention of the legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used. Bolin v. State, 2015 Ark. 149, at 4, 459 S.W.3d 788, 791; Bean, 340 Ark. at 296, 9 S.W.3d at 526; Gannett River States Pub. Co. v. Ark. Judicial Discipline & Disability Comm'n, 304 Ark. 244, 248, 801 S.W.2d 292, 295 (1990). In the absence of such legislative intent, we have observed a strict rule of construction against retroactive operation and indulge in the presumption that the legislature intended statutes, or amendments thereof, to operate prospectively only. Evans v. Hamby, 2011 Ark. 69, at 11, 378 S.W.3d 723, 730.

         Here, rather than analyzing for a change in circumstances that would cause it to exercise its sound discretion to terminate alimony, the circuit court's order applied a 2013 statutory amendment to automatically terminate the alimony provision of its previous divorce decree based on a ground that did not require automatic termination when the decree was entered. This termination as a matter of law amounted to a retroactive application of the current statute. Neither party argues, and nothing in the statute or the legislative history indicates, that the General Assembly intended for this statute to apply to previous alimony ...

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