APPEAL
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72DR-02-1692]
HONORABLE JOANNA TAYLOR, JUDGE.
Hall,
Estill, Hardwick, Gable, Golden & Nelson, P.C., by:
Curtis E. Hogue and M. Scott Hall, for appellant.
Taylor
Law Partners, LLP, by: Scott E. Smith, for appellee.
KENNETH S. HIXSON, Judge.
Appellant
Roger D. Becker and appellee Patricia Becker (now
McCoy)[1] were married in 1982 and divorced in 2003.
There are no minor children of the marriage. The divorce
decree, entered on May 20, 2003, divided the parties'
property, including Roger's retirement accounts by means
of a Qualified Domestic Relations Order. The divorce decree
contained the following provisions with respect to alimony:
The Court further considered [Patricia's] request for
alimony and after considering all relevant factors, including
those recited from the bench in open court, the Court finds
that [Patricia] has proven by a preponderance of the evidence
that she needs alimony and the evidence has further
established that [Roger] is earning sufficient income to
demonstrate his ability to pay alimony. The Court further
considered whether rehabilitative alimony was appropriate and
finds that it is not. . . . [Roger] should be, and hereby is,
ordered and directed to pay alimony in the sum of $1059.00
per month beginning May 5, 2003 and continuing on the same
day of each month thereafter throughout the life of
[Patricia] or upon her subsequent remarriage or upon a
sufficient showing of a material and substantial change in
circumstances to warrant modification of this award.
On July
6, 2017, Roger filed a petition to modify alimony. In his
petition, Roger alleged that he had recently been terminated
from his employment. Roger alleged that his unemployment left
him without the ability to pay the court-ordered alimony and
constituted a material change in circumstances that warranted
a modification.
After a
hearing, the trial court entered an order on April 2, 2018,
denying Roger's request to modify alimony. In its order,
the trial court made these pertinent findings:
4. That [Roger] has not challenged [Patricia's]
continuing need for alimony and the Court finds that
[Patricia] still has an ongoing need for alimony in the sum
of $1059.00 per month.
5. The Court finds that, while [Roger] is not presently
employed, he has the financial resources to continue to pay
alimony to [Patricia] as ordered. Accordingly, [Roger's]
Petition to Modify Alimony is hereby denied.
Roger
now appeals from the order denying his petition to modify
alimony. Roger asserts that he no longer has a job and is
living off his retirement assets, which were divided upon
divorce and subsequently increased in value. Roger argues
that the trial court should not have considered his
retirement savings in determining his ability to pay, and he
contends that by continuing to receive alimony Patricia is
getting a windfall by receiving the increased value of
marital assets previously divided by the court. We find no
error and affirm.
An
award of alimony is always subject to modification upon
application of either party. Ark. Code Ann. § 9-12-314
(Repl. 2015). Such modification must be based, however, on a
change in the circumstances of the parties. Bracken
v. Bracken, 302 Ark. 103, 787 S.W.2d 678
(1990). The primary factors to be considered in making or
changing alimony are the need of one spouse and the ability
of the other spouse to pay. Id. A decision regarding
alimony is a matter that lies within the trial court's
sound discretion and will not be reversed on appeal absent an
abuse of that discretion. Rawls v. Yarberry, 2018
Ark.App. 536, 564 S.W.3d 537.
Roger
testified that he was employed as an instructor of ammonia
refrigeration at Northwest Technical Institute (NTI) for
twenty years before being terminated in June 2017. Roger
stated that he was terminated for teaching classes outside of
NTI, but he claimed that these classes did not take business
away from NTI and that he had periodically taught outside
classes the entire time that he worked for NTI. After his
termination, Roger filed for unemployment benefits but was
denied. He stated that since his termination he has looked
for employment in his field but has not been successful.
Roger
testified that before being employed at NTI, he worked at
Tyson Foods for seventeen years. Roger had a retirement plan
with Tyson, which he rolled over into a retirement plan with
NTI. At the time of the hearing, Roger had retirement savings
of about $336, 000. In his affidavit of financial means,
Roger reported $35, 000 in a bank account. Roger testified
that he recently became eligible for early retirement at age
59 1/2 and that he receives $1500 in net monthly retirement
income. Roger indicated that his monthly expenses of ...