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Kelly v. Kelly

Court of Appeals of Arkansas, Division III

November 8, 2017

OWEN KELLY APPELLANT
v.
MANDY KELLY APPELLEE

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72DR-13-2217] HONORABLE JOANNA TAYLOR, JUDGE

          Everett, Wales & Comstock, by: John C. Everett; and Smith, Cohen & Horan, PLC, by: Matthew T. Horan, for appellant.

          Clark Law Firm PLLC, by: Suzanne G. Clark, for appellee.

          DAVID M. GLOVER, Judge.

         This is the third time appellant Owen Kelly has appealed an order to our court concerning alimony he has been ordered to pay his ex-wife, appellee Mandy Kelly. In Kelly v. Kelly, 2015 Ark.App. 147 (Kelly I), our court dismissed his appeal due to lack of a final order; on grant of petition for review, our supreme court held the decree of divorce was a final order and remanded the case to our court to render a decision. Kelly v. Kelly, 2016 Ark. 72, 483 S.W.3d 296. On remand, our court was tasked with determining whether the trial court abused its discretion (i) in setting the monthly amount of alimony initially at $9131 and (ii) in requiring Owen's initial alimony obligation to automatically increase as his child-support payments abated in order to always provide Mandy the $16, 659 per month amount of support she requested, which resulted in Owen continuously paying this monthly support amount, even after his child-support obligation had ended. Our court determined the circuit court had abused its discretion on both counts; we reversed and remanded for the circuit court to enter an order consistent with our opinion. Kelly v. Kelly, 2016 Ark.App. 272, 496 S.W.3d 391 (Kelly II).[1]

         On remand, Owen filed a prehearing brief, requesting not only a reduction of the alimony he was required to pay Mandy but also a repayment of alimony he had already overpaid. Specifically, he requested the circuit court allow him to have a credit of $1000 per month against the alimony amount he was required to pay Mandy. Mandy, in her pre-hearing brief, requested alimony of at least $6131 per month, which, when combined with child support, would give her $13, 659 per month in total support.

         At the hearing, the circuit court decreased Mandy's alimony only by the specific instances our court had listed in Kelly II. In its order, the circuit court further found Mandy "has an established need of $10, 615.50 per month for expenses as itemized from the bench. [Owen's] current child-support obligation of $7528 per month satisfies a significant portion of the monthly need. [Owen] is therefore ordered to pay $3087.50 per month in alimony to [Mandy]." The circuit court also found that it would be inequitable to require Mandy to repay the amounts of alimony Owen had overpaid and denied his request for a credit against his alimony obligation.

         Owen filed a motion to modify the circuit court's order concerning alimony, asserting the circuit court departed from our court's mandate by making a factual finding that Mandy had "an established need" for $10, 615.50 per month and using his child-support obligation as a credit against Mandy's established need. While Owen specifically stated he did not object to paying monthly alimony of $3087.50, he did object to the finding that Mandy had an "established need" exceeding $10, 600 when our court had already found $9131 in monthly alimony to be excessive. Owen also asked the circuit court to reconsider giving him a credit for excessive alimony paid for thirty-two months or, at the very least, since the date of our opinion reversing the amount of alimony as excessive, especially in light of the fact Mandy had filed petitions for rehearing and review, further delaying resolution of the matter of alimony. In an order filed February 8, 2017, the circuit court denied Owen's motion to modify without explanation. Owen filed this timely appeal.

         Owen makes two arguments on appeal. First, he contends the circuit court overstepped the limited bounds of our court's mandate by making a factual declaration that Mandy had established a need for $10, 616.50 per month in support and then applying the child support he was paying as a setoff against, but not a reduction of, of that need to derive a figure for alimony; he asserts the circuit court's finding that Mandy had a personal need for $10, 616.50 per month prejudices him in future litigation. Second, Owen maintains the trial court erred in denying him any credit against either future alimony payments for the excessive alimony he paid Mandy from March 2014 to October 2016, or at the very least, from the date of the appeal to our court until the case was heard on remand. Both of his arguments have merit; we affirm as modified in part and reverse in part.

         Standard of Review

         Appeals of domestic-relations proceedings are reviewed de novo, but a circuit court's finding of fact will not be reversed unless it is clearly erroneous. Berry v. Berry, 2017 Ark.App. 145, 515 S.W.3d 164. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that the circuit court has made a mistake. Id. Due deference is given to the circuit court's superior position to determine witness credibility and the weight to be accorded to their testimony. Id.

         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, and 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 a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse's ability to pay. Id. Secondary factors that may also be considered are (1) the financial circumstances of both parties; (2) the couple's past standard of living; (3) the value of jointly owned property; (4) the amount and nature of the parties' income, both current and anticipated; (5) the extent and nature of the resources and assets of each of the parties; (6) the amount of income of each that is spendable; (7) the earning ability and capacity of each party; (8) the property awarded or given to one of the parties, either by the court or the other party; (9) the disposition made of the homestead or jointly owned property; (10) the condition of health and medical needs of both husband and wife; (11) the duration of the marriage; and (12) the amount of child support (if applicable). Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766. 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. Dozier v. Dozier, 2014 Ark.App. 78, 432 S.W.3d 82. A circuit court abuses its discretion when it exercises its discretion improvidently or thoughtlessly and without due consideration. Id. Thus, it follows that a decision whether to require repayment of an overpayment of alimony is likewise subject to an abuse-of-discretion standard.

         Mandy's Established Need of $10, 616.50 Per Month

         First, it must be noted Owen has never contested the $7528 in monthly child support the circuit court ordered him to pay; in fact, in Kelly II, we recited that, in addition to the child support he agreed to pay, Owen further arranged to pay an additional $1000 per month for their son's private-school tuition. Likewise, Owen does ...


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