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Dace v. Doss

Court of Appeals of Arkansas, Division III

October 18, 2017

HAROLD R. DACE APPELLANT
v.
DEBRA (DACE) DOSS APPELLEE

         APPEAL FROM THE WHITE COUNTY CIRCUIT COURT [NO. 73DR-11-564] HONORABLE CRAIG HANNAH, JUDGE

          Harrelson Law Firm, P.A., by: Steve Harrelson, for appellant.

          Simpson & Simpson, by: James A. Simpson, Jr., and Haley Smith, for appellee.

          DAVID M. GLOVER, JUDGE.

         Harold R. Dace appeals the White County Circuit Court's denial of his request to terminate his alimony obligation to appellee Debra (Dace) Doss. Specifically, he contends (1) the circuit court erred in not terminating Doss's alimony upon her remarriage; (2) it also erred in requesting and considering evidence outside the record to determine Doss's monthly expenses; and (3) Act 1487 of 2013 calls into question the validity of permanent alimony awards. We affirm.

         Dace and Doss divorced in 2012 after a seventeen-year marriage. The circuit court awarded Doss alimony, with the divorce decree stating, "Based on [Dace's] income of $4, 000.00 per month and [Doss's] income of $800.00 per month, [Dace] shall pay [Doss] alimony in the amount of $619.00 per month for the remainder of [Doss's] life." Doss remarried on November 7, 2015; after her remarriage, Dace unilaterally terminated his alimony payments to her.

         In April 2016, Doss filed a motion for contempt against Dace, asking the circuit court to hold him in contempt for terminating her alimony payments in violation of the terms of the divorce decree. In response, Dace filed a motion to terminate his alimony obligation due to Doss's remarriage and because she no longer had a need for alimony. After a hearing on the matter, the circuit court found (1) Doss had the ability to earn at least minimum wage and imputed a monthly income of $1, 075 to her; (2) Doss had reasonable monthly expenses of $1, 309; (3) Doss had remarried and her current husband now provided housing and paid some of her other monthly expenses; and (4) Doss had a current need of $234. The circuit court reduced Doss's alimony from $619 per month to $234 per month as of May 31, 2016 (the date Dace filed his motion to terminate alimony); ordered Dace to pay Doss a total of $5, 269 in back alimony; and found Dace had an ongoing duty to pay alimony in the amount of $234 per month. Dace timely appealed the circuit court's ruling.[1]

         Standard of Review

         Appeals of domestic-relations proceedings are reviewed de novo. Nelson v. Nelson, 2016 Ark.App. 416, 501 S.W.3d 875. The decision to grant alimony lies within the sound discretion of the circuit court and will not be reversed on appeal absent an abuse of discretion. Beck v. Beck, 2017 Ark.App. 311, 521 S.W.3d 543. An abuse of discretion means discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Bennett v. Bennett, 2016 Ark.App. 308, 496 S.W.3d 409. This court has recognized that a circuit court is in the best position to view the needs of the parties in connection with an alimony award. Beck, supra. 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. Berry v. Berry, 2017 Ark.App. 145, 515 S.W.3d 164.

         The purpose of alimony is to rectify economic imbalances in earning power and standard of living in light of the particular facts of each case; the circuit court may make an award of alimony that is reasonable under the circumstances. Brave v. Brave, 2014 Ark. 175, 433 S.W.3d 227. The primary factors to be considered in determining whether to award alimony are the financial need of one spouse and the other spouse's ability to pay; secondary factors are the financial circumstances of both parties, the amount and nature of both current and anticipated income of both parties, the extent and nature of the resources and assets of each party, and the earning ability and capacity of both parties. Id. The amount of alimony should not be reduced to a mathematical formula, as the need for flexibility outweighs the need for relative certainty. Id.

         Court-ordered alimony is always subject to modification. Nelson, supra. 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. Berry, supra.

         I. Continuation of Alimony

         Dace first argues the circuit court erred in not terminating his alimony obligation to Doss. Specifically, he argues Doss no longer has a need for alimony after her remarriage in November 2015; the alimony award should have automatically terminated on her remarriage pursuant to Arkansas Code Annotated section 9-12-312(a)(2)(A); and the circuit court's use of a mathematical formula in determining a modified amount of alimony was contrary to our supreme court's holding in Brave, supra, that an alimony award should not be reduced to a mathematical formula because the need for flexibility outweighs the need for relative certainty. We cannot agree with Dace's contentions.

         Arkansas Code Annotated section 9-12-312(a)(2)(A) (Repl. 2015) provides, "Unless otherwise ordered by the court or agreed to by the parties, the liability for alimony shall automatically cease upon . . . the date of the remarriage of the person who was awarded the alimony." Dace acknowledges in his brief that the statutory provision states that alimony automatically terminates when certain events occur "unless otherwise ordered by the court, " but he contends that while the circuit court originally ordered alimony to be paid for the remainder of Doss's life, the new order, entered in October 2016, does not ...


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