DEBRA L. MASON APPELLANT
CHARLES F. MASON APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60DR-10-1318]
HONORABLE VANN SMITH, JUDGE CERTIFIED QUESTION ANSWERED;
REMANDED TO THE COURT OF APPEALS.
Law Firm, by: Bobby R. Digby II, for appellant.
Hilburn, Calhoon, Harper, Pruniski & Calhoun, LTD., by:
Sam Hilburn and Scott Hilburn, for appellee.
A. WOMACK, Associate Justice
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. 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.
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. 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.
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.
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,
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).
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.
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 ...