APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTEENTH DIVISION
[NO. 60DR-16-3859] HONORABLE MORGAN E. WELCH, JUDGE.
Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by:
Sam Hilburn and Tetiana Fayman, for appellant.
Coplin
& Hardy, PLLC, by: Betty J. Hardy, for appellee.
RITA
W. GRUBER, CHIEF JUDGE.
Elwyn
Perser appeals from a divorce decree entered May 18, 2018,
ending his twelve-year marriage to Whitney Perser. He argues
four points on appeal: (1) the circuit court erred by
awarding Whitney $52, 000 from his separate nonmarital
residence; (2) the circuit court erred by awarding Whitney
$100, 000 from his separate nonmarital medical practice; (3)
the circuit court's awards of child support and alimony
should be reversed due to the court's use of incorrect
net income; and (4) the circuit court's award of alimony
is clear error because the amount is unreasonable. Whitney
argues on cross-appeal that the circuit court erred in not
awarding her half of the value of the parties' marital
residence. Elwyn filed a motion to dismiss her cross-appeal,
which this court passed to the panel to be heard on
submission. Having conducted a de novo review, we affirm on
direct appeal. We deny Elwyn's motion to dismiss and also
affirm the cross-appeal.
The
parties married on February 10, 2006. Throughout their
marriage, Elwyn practiced medicine at, and was the sole owner
of, Edwin N. Barron, Jr., MD, PA, d/b/a Office Park Family
Practice, which Elwyn had purchased from Whitney's
father, Dr. Barron, in 2003. Whitney, her father, and her
mother continued to work in the business after Elwyn's
purchase and during the parties' marriage. Whitney, who
does not have a college degree but has attended several years
of college, worked at the business since 1999 and was the
office manager during the parties' marriage. She had
never worked anywhere else.
When
the parties married, Whitney had an adopted daughter, AP-born
January 10, 2001-whom Elwyn also adopted after he and Whitney
married. The parties have no other children. AP has emotional
deficiencies, has been diagnosed on the autism spectrum, and
was undergoing inpatient treatment at Youth Home at the time
of the divorce hearing. Incidents with AP include sexting
strangers, vandalizing the house, running away, and stealing
money from Whitney's purse. Whitney was diagnosed with
breast cancer in March 2016, had a bilateral mastectomy,
underwent six rounds of chemotherapy, and had reconstructive
surgery throughout the spring and summer of 2016. Her final
reconstructive surgery occurred in October 2016. She
testified that because of the type of cancer she had, her
physicians had recommended additional surgery to remove her
ovaries, which she had not scheduled at the time of the
hearing.
Elwyn
filed a complaint for divorce against Whitney in May 2016,
which he dismissed several months later. The parties got into
a physical and verbal altercation on October 1, 2016. On
October 3, Elwyn filed another complaint for divorce and
fired Whitney from the business. Whitney and AP lived with
Whitney's parents for a month and then moved back into
the marital residence in November 2016. Elwyn stayed at the
Office Park Family Practice during the pendency of the
divorce.
After a
hearing, the circuit court entered a temporary order on
February 16, 2017, in which it ordered Elwyn to pay child
support of $1816 per month based on net annual income of
$150, 000 and to pay all other household expenses. Pursuant
to Elwyn's motion to reduce support, the court held
another hearing and entered a temporary order on March 7,
2018, reducing his child-support obligation to $1566 per
month based on net income of $130, 000 per year.
On May
18, 2018, after a final hearing on March 28, the court
entered a final decree of divorce. Relevant to this appeal,
the court awarded sole custody of AP to Whitney with
supervised visitation to Elwyn as recommended by the attorney
ad litem. Elwyn was ordered to continue paying child support
in the amount of $1566 based on monthly net income of $10,
498.18. The court found that the parties' marital
residence on Van Lee Drive was Elwyn's nonmarital
separate property but found that Whitney had made
contributions of $52, 000 toward the purchase of the house.
The court ordered Elwyn to reimburse her for that amount with
interest within 180 days of the decree, giving Whitney a lien
on the home until it was paid. The court also ordered Elwyn
to pay Whitney rehabilitative alimony of $2000 per month for
seven years based upon the disparity in income of the
parties, the length of the marriage, and the health of the
parties. In awarding alimony, the court was specifically
"mindful" that Elwyn retained the marital home
without a mortgage payment and that Whitney would be
incurring an additional monthly housing expense. Finally, the
court ordered Elwyn to pay Whitney $100, 000 as her marital
portion of his medical practice. Elwyn filed this appeal from
the court's decree. Whitney filed a cross-appeal.
I.
Medical Practice
We turn
first to Elwyn's argument on appeal that the circuit
court erred by awarding Whitney $100, 000 from his separate
nonmarital medical practice. Specifically, he argues that an
equitable distribution of the business was improper because
the medical practice carries no goodwill independent of his
name. He also contends that it was improper and unreasonable
because Whitney received other significant assets making it
inequitable to award her part of his medical
practice.[1] These are the circuit court's findings
regarding the medical practice:
The Court finds [Elwyn] is one hundred percent (100%) owner
(stockholder) of Edwin Barron, Jr., MD PA, d/b/a Office Park
Family Practice and that he purchased the practice prior to
the parties' marriage. The court further finds that much
of the goodwill of the practice was intertwined with the
'Barron' name and that [Whitney's] father
remained with the practice for some time during the marriage,
working with both [Elwyn] and [Whitney](who was an employee).
The Court finds the practice had a goodwill value
"independent" of [Elwyn].
The court further finds from the testimony and exhibits
demonstrate that, during the marriage, [Elwyn] paid debt on
the practice with marital funds and that the business has
assets, including loans to stockholder, retained earnings,
office equipment and accounts receivable which are to be
considered in a divorce proceeding.
This Court is given broad powers to distribute both marital
and nonmarital property to achieve an equitable division.
Box v. Box, 312 Ark. 550 (1993); [t]he Court
acknowledges that all nonmarital property shall be returned
to the party who owned it prior to the marriage unless the
court shall make some other division it deems equitable. See
Ark. Code Ann. § 9-12-315(a)(1)(B)(2) (Repl. 1998). The
trial court may find that a non-owning spouse is entitled to
some benefit by reason of marital funds having been used to
pay off debts on the owning spouse's property. Fell
v. Fell, supra.
As the Arkansas Appellate Courts have stated, our property
division statute does not require mathematical precision in
property division, but only that property be distributed
equitably. Hoover v. Hoover, 70 Ark.App. 215, 16
S.W.3d 560 (2000). The evidence is clear in this case that
[Whitney] worked in [Elwyn's] medical practice during the
marriage and even before the marriage and that she
contributed to the value of the business. Also, the testimony
reflects that [Elwyn] used marital funds to pay the amount
owed for the medical practice.
The
circuit court is given broad powers to distribute both
marital and nonmarital property to achieve an equitable
division, and the overriding purpose of the property-division
statute is to enable the court to make a division that is
fair and equitable. Steeland v. Steeland, 2018
Ark.App. 551, at 8, 562 S.W.3d 269, 274. We review
division-of-marital-property cases de novo, but we will not
reverse the circuit court's findings of fact unless they
are clearly erroneous or against the preponderance of the
evidence. See Hernandez v. Hernandez, 371 Ark. 323,
327, 265 S.W.3d 746, 749 (2007). A finding is clearly
erroneous when the ...