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Perser v. Perser

Court of Appeals of Arkansas, Division I

October 23, 2019

ELWYN PERSER APPELLANT
v.
WHITNEY PERSER APPELLEE

          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 ...


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