Cite as 2024 Ark. App. 194 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-23-94
Opinion Delivered March 13, 2024
APPEAL FROM THE PULASKI JODIE HARTMAN COUNTY CIRCUIT COURT, APPELLANT SEVENTEENTH DIVISION [NO. 60DR-19-1563] V. HONORABLE MACKIE M. PIERCE, CANDIE HARTMAN JUDGE APPELLEE AFFIRMED
CINDY GRACE THYER, Judge
Candie and Jodie Hartman were divorced by decree entered October 26, 2022, after
a sixteen-year marriage. Jodie appeals from the divorce decree, arguing that the Pulaski
County Circuit Court abused its discretion (1) in its calculation of child support; (2) in its
award of alimony; and (3) in its division of marital debt. We affirm.
Jodie and Candie were married on October 21, 2006. At the time Candie filed for
divorce in April 2019, they had three minor children, MC1, MC2, and MC3. 1 In her
complaint, Candie requested, in part, custody of the children, alimony, child support, and
the division of marital property and debt. Jodie answered and counterclaimed, also seeking
1 By the time they divorced, MC1 had reached the age of eighteen. to have the marriage dissolved. During the course of the proceedings, the court appointed
an attorney ad litem to represent the children’s interests.
A final hearing on the divorce began on March 10, 2022. At the hearing, Candie
testified that she lived with her three children (one who is now an adult) in a mobile home
purchased by her brother on her dad’s property and had done so for approximately thirteen
months.
As for income, she stated that Jodie was an assistant battalion chief at the Sherwood
Fire Department and that his usual shift is twenty-four hours on, forty-eight hours off. She
said that, throughout their marriage, Jodie earned extra income from a body-shop business
where he repaired and painted damaged vehicles and from a lawn company. She testified
that, while the body shop-work had admittedly dwindled, Jodie still worked on cars and
collected money for his work. She stated that he had worked on a car just prior to her filing
for divorce and that he worked on a couple of cars each month even in his slow times. As
for the lawn company, she stated that she was certain that he continued to mow lawns since
their separation earning $480 a month in her estimation. Her sister-in-law, Megan Fortson,
confirmed that Jodie performed body work and mowed lawns for money.
Candie also testified that they had several rental properties that produced income.
One was rented for $650 a month; one was rented for $675 a month; and one was rented
for $25 a month. She claimed that, during their separation, Jodie collected rent on those
properties but did not divide the income with her. She testified that Jodie even admitted in
discovery that he collected $1400 in rent each month. So, for approximately thirty-nine
2 months, she had not received any rental income from those properties.2 She admitted,
however, that she had not paid any of the expenses for those properties during that time
period. She asked that she be reimbursed for her portion of the past rental payments.
As for her income, Candie testified that she is currently on disability due to her
rheumatoid arthritis and accompanying neuropathy. She is on eight or nine different
medications and requires three-hour infusions every eight weeks. She stated that she has
been unable to work since 2010 and receives $949 a month ($1147.10 before deductions) in
disability payments. Her only other source of income is child support.
She testified that due to her limited income, she is unable to afford everything and
has to rely on her brother for financial assistance.3 She also claimed that she had been forced
to rely on her credit cards to make ends meet.4 Credit cards in her name totaled $33,397.93,
and the minimum monthly payments were $929.14. Jodie, on the other hand, had only
$1100.20 in credit-card debt in his name. She also testified to a joint Dillard’s credit-card
debt of $7499.40. This brought their total marital credit-card debt to $41,997.53. She asked
that the court order Jodie to pay the entire amount of marital debt because she could not
afford to. She also asked for spousal support.
2 According to Candie’s testimony, Jodie collected $52,650 in rental income during their separation. Jodie stated in his discovery responses that he collected $54,600. 3 She testified that she intended to sell the rental properties she received in the divorce in order to pay her brother back. 4 She testified that she incurred charges on her credit cards for food, gas, electricity, Christmas gifts for the children, children’s clothing, and items to set up her household.
3 As for insurance, she testified that the children are covered by ARKids First for their
medical and dental insurance. She stated that Jodie had also purchased an AFLAC
supplemental insurance policy and an additional dental policy. She stated that he had not
provided her with any insurance cards on those policies.
As for Jodie’s retirement, she testified that he has a LOPFI pension but that she had
not received any documentation from Jodie as to the value of that account. She also testified
that he had been contributing to a 457(b) account worth $15,472.65. She requested that the
court award her half of the marital portion of those retirement accounts, if not more.
As for the child-support payments, Candie testified that Jodie insisted on personally
hand delivering the support checks to her and required that she sign the backs of the checks
in his presence. He would then take a picture of them after she had signed. She testified that,
on one occasion, he flicked the check at her from the window of his car, it caught the wind,
and blew underneath the car. When she went to retrieve it, he placed the car in reverse and
started moving. If she had not moved her arm quickly enough, he would have run over her
arm. As a result, she asked that his child-support payments be withheld from his paycheck.
On cross-examination, she admitted that she and the children continued to live in
the marital home with Jodie until February 2021. She stated that during that time, she paid
for household goods, food, life-insurance policies on the children, and the internet bill. She
also admitted that they had been able to pay off their credit-card debt in 2012 after she
received her disability settlement, but it was never completely paid off after that.
4 She also testified that after she left the home, Jodie moved his girlfriend and her son
into his house. She stated that she was not opposed to the girlfriend living there because she
acts as a buffer between Jodie and the children, but it did make her angry that he was
supporting them while not providing her with any financial support other than the court-
ordered child support.
Candie’s brother, Christopher Fortson, testified that he had financially assisted his
sister since her separation from Jodie by buying her a home and paying the mortgage and
some of her bills. He stated that he would be unable to do that for the rest of her life. He
stated that because his partner is unemployed due to COVID-19 and he has been helping
his sister out financially, he had been placed in a financial bind and had had to incur credit-
card debt for the first time in a long time.
The matter was continued until April 15, 2022. Jodie testified that since September
2021, he has lived in his separate residence with his girlfriend and her fifteen-year-old son.
He stated that his girlfriend moved in because her rental house was being sold, and she had
no place to stay. He testified that, although his girlfriend has a job, she does not pay any rent
or utilities because he believes it is not her place to do so. He claimed that their living with
him does not add to his expenses. He also testified that he had begun renovating his house
during this time period.
As for income, he testified that he is employed as a battalion chief for the Sherwood
Fire Department and had been with the fire department for twenty-four years. He stated that
he is on salary as a fireman and may earn some overtime but that the overtime is not
5 guaranteed. He testified that the rental properties they owned bring in $1400 a month. He
stated that he had mowed lawns for thirty years but claimed that he no longer mows lawns
or repairs vehicles for money. He further testified that his LOPFI has no cash value because
it is a pension plan and is based on his years of service at retirement. He contributes $100 a
pay period to his 457(b) plan and had purchased supplemental health and dental insurance
for the children.5
As for spousal support, he testified that he does not believe Candie is entitled to
alimony because she has other means of financial support. He asserted that she lives beyond
her means and has an unhealthy spending habit, although he could not identify which
purchases were extravagant. He acknowledged that Candie cannot survive on her disability
alone but insisted that the fact that her credit card minimum payments exceed her disability
payments is proof that she is living beyond her means. He also claimed that he had already
had to pay off $70,000 to $80,000 of her credit-card debt on three previous occasions during
their marriage. He also took issue with the fact that Candie was allowing their adult son to
live with her rent-free while he is in school. He asked that the court deny Candie’s request
for spousal support, claiming that he does not have the ability to pay it.
As for her child-support request, he asserted that he paid all the household bills while
Candie and the boys lived with him. He later admitted that Candie had bought some of the
groceries during that time but claimed that he paid the majority of the bills, including all the
5 He testified that this AFLAC policy is basically a major accident/illness policy.
6 utilities and expenses on the rental properties. As for her testimony regarding his hand
delivery of the child-support payments, he maintained that he filmed Candie receiving the
checks only because he was concerned she would deny having received them. He also denied
almost running over her with his car.
After considering the testimony and evidence presented, the circuit court granted
Candie’s request for a divorce and awarded her primary custody subject to Jodie’s visitation.
The court reserved a ruling on the issue of child support, alimony, the division of marital
debt, and other matters, and the parties were invited to present posttrial briefs on those
issues.
On May 2, 2022, Candie submitted her posttrial brief in which she submitted three
separate options as to how the court could calculate child support and argued that the court
should consider both rental income and Jodie’s supplemental income in determining its
award. She also submitted multiple options in determining the amount of alimony to be
awarded, taking into consideration the amount of child support awarded. Finally, Candie
argued that the court should order an unequal division of the marital property and debt to
obtain an equitable result. In doing so, she requested that the court order Jodie to pay all
the marital debt.
Jodie filed his posttrial brief the same day. 6 In his posttrial brief, Jodie argued that
each party should be responsible for any and all debt accrued in his and her individual
6 He filed an amended posttrial brief the next day.
7 names. He further argued that Candie is not entitled to an award of alimony. He asserted
that (1) he does not have the ability to pay; (2) Candie will continue to receive her disability
payments and had retained income-producing properties earning $800 a month gross
pursuant to an agreed division of their rental properties; (3) it is unlikely his employment
income will increase; (4) Candie will receive child-support income; (5) Candie’s standard of
living is not substantially different from her standard of living during the marriage or from
Jodie’s standard of living; and (6) Jodie will be individually liable for the mortgage debt
associated with the marital residence.7 Jodie’s posttrial brief was silent regarding how child
support should be calculated.
On August 23, 2022, the court issued a letter opinion outlining, among other things,
its decision regarding child support, alimony, and the division of marital debt. When
calculating Jodie’s monthly gross income for child support, the court included not only
Jodie’s salary as a fireman but also $675 in rental income and $550 in imputed income for
lawn mowing, auto repair, and miscellaneous work. The rental income included in the
calculation made no allowance for insurance or other expenses related to the rental property.
On the basis of the court’s income calculations, the court determined Jodie’s child-support
obligation for the two minor children to be $1109 a month.
As for alimony, the court noted that the primary consideration in the award of
alimony is the need of one spouse and the ability of the other spouse to pay. The court found
7 It was undisputed that the marital home was Jodie’s separate property.
8 that Candie clearly has a need and Jodie clearly has the ability to pay. The court also stated
that in making an award of permanent alimony, it had considered and adopted the factors
Candie set forth in her posttrial.8 It then stated that factor number ten was most compelling
and “offensive” of all the factors listed. The court noted that Jodie had moved his girlfriend
and her son into the marital home and allowed them to reside with him rent-free, while
Candie was forced to move into a home purchased by her brother on her parents’ property.
More specifically, the court found that, while Jodie did not require his girlfriend to
contribute financially to the household expenses, Candie has had to rely on financial
assistance from her brother and on the use of credit cards to live and provide for her children.
As to the marital debt, the court stated that deciding the case had been extremely
difficult due to the various financial circumstances and issues before it. The court again
8 Candie asserted that permanent alimony was appropriate for the following reasons: (1) the parties’ marriage was of long duration; (2) she is permanently, physically disabled; (3) Jodie is in good physical health and has no employment limitations; (4) Jodie is gainfully employed and will likely continue to earn substantially more income as he advances in his career, and he has a documented history of earning substantial supplemental income from multiple sources, including a lawn-care business, auto-body-repair service, rental properties, and selling personal items; (5) she will never have any employment income due to her permanent physical disability; (6) she will receive child support from Jodie for a maximum of only four years because the parties’ youngest son will reach the age of majority and graduate high school; (7) Jodie’s standard of living (as compared to their standard of living during the marriage) has not been impacted (and, arguably, has improved) since Candie moved out of the marital residence in February 2021; (8) she has incurred excessive credit- card debt and had to rely on the assistance of her brother in order to financially survive on her disability income; (9) she will likely continue to incur substantial medical expenses; and (10) Jodie will continue to reside with his girlfriend and her son, whom he permits to reside at the marital residence rent-free and without any financial contribution to any household expenses.
9 emphasized that Jodie had not been concerned with the dire financial situation Candie had
faced since the divorce action was initiated, and such lack of concern was evidenced by the
fact that (1) Jodie moved his girlfriend and her child into a home that he will receive free
and clear of any claim by Candie; (2) he did so without requiring any financial assistance
from his girlfriend; and (3) he claimed that it was his responsibility to provide for his
girlfriend over his obligations to support his wife and family. The court then split the marital
debt according to their percentage of total income. In doing so, the court noted that Jodie is
able to earn more each month from various endeavors, but during the divorce and separation
period had claimed to have earned little to no additional income from sources other than
his primary employment. The court found Jodie’s credibility lacking on this issue; stated it
did not believe Jodie earns no additional income other than his pay as a fireman; and found
that Jodie can, and most assuredly will, earn additional income as he has done throughout
the marriage.
After setting forth the basis for its decision on the remaining issues, the court directed
Candie’s counsel to prepare a precedent in accordance with its letter ruling. Notably, the
parties were advised to alert the court if there were any additional issues the court
overlooked. Any objections were first to be directed to Candie’s counsel, and if the
objections could not be resolved, the parties were directed to schedule a Zoom hearing to
discuss the objections.
On October 11, 2022, pursuant to the court’s letter opinion, Candie’s counsel filed
a proposed divorce decree. Attached to the proposed decree was a child-support worksheet
10 showing how the parties’ gross income was determined and calculating their respective child-
support obligations. A line on the attached child-support worksheet, which specifically
indicated that spousal support was a permissible deduction from the monthly income
calculation, was left blank.
On October 24, 2022, Jodie filed his objections to the proposed decree. Relevant to
this appeal, he objected to the specific amount of rental income used in determining child
support and to the date he began paying child support. He made no further objections to
the proposed divorce decree pertinent to this appeal.
The final divorce decree was entered on October 26, 2022. In the order, the court
made several of the changes noted in Jodie’s objections. 9 The order awarded Candie child
support in the amount of $1109 a month and alimony in the amount of $1750 a month. As
for the division of marital debts, the court found that the marital debt totaled $41,997.53 of
which $40,897.42 was incurred by Candie. The court ordered Jodie to pay $29,562.20 of
Candie’s credit-card debt in addition to any individually held debt on his credit cards.
Candie was ordered to pay the remainder, including the $7499.40 in debt incurred on the
jointly held Dillard’s card.
Jodie filed a timely notice of appeal from the court’s decree. On appeal, he argues
that the circuit court abused its discretion (1) in its calculation of child support; (2) in its
9 This included the removal of a paragraph related to a prohibition on overnight guests; the transfer of title to MC2’s vehicle upon payment of loan; and the closing of the Arvest Bank account to remove Jodie’s name from the account.
11 award of alimony; and (3) in its division of marital debt. Each of these issues will be addressed
in turn.
I. Child Support
Jodie first challenges the circuit court’s award of child support, asserting the circuit
court (1) failed to consider the award of spousal support in its gross-income calculations; (2)
failed to consider “ordinary and necessary expenses” in its inclusion of rental income in the
gross-income calculations; (3) improperly imputed additional income in the gross-income
calculation when he is neither unemployed nor underemployed; (4) failed to factor the cost
of supplemental insurance into its child-support calculations; and (5) issued an improper
advisory opinion concerning the treatment of any future payments made outside the
clearinghouse.
Our standard of review for an appeal from a child-support order is de novo on the
record, and we will not reverse a finding of fact by the circuit court unless it is clearly
erroneous. Cathey v. Altazan, 2023 Ark. App. 314, at 5, 669 S.W.3d 614, 617. However, a
circuit court’s conclusions of law are given no deference on appeal. Id. at 6, 669 S.W.3d at
618. In reviewing a circuit court’s findings, we give due deference to that court’s superior
position to determine the credibility of the witnesses and the weight to be given to their
testimony. Id. at 5–6, 669 S.W.3d at 617–18. In a child-support determination, the amount
of child support lies within the sound discretion of the circuit court, and the court’s findings
will not be reversed absent an abuse of discretion. Id., 669 S.W.3d at 618. An abuse of
discretion generally occurs when the circuit court’s discretion is applied thoughtlessly,
12 without due consideration, or improvidently. Grynwald v. Grynwald, 2022 Ark. App. 310, at
3, 651 S.W.3d 177, 180.
A. Consideration of Spousal Support
Jodie first argues that the circuit court erred in failing to take into consideration the
award of spousal support in its calculation of child support. Under revised Administrative
Order No. 10, if a parent is paying spousal support and child support to the same person,
then the amount of alimony a payee spouse receives shall be reduced from the payor’s gross
income and added to the payee’s gross income for purposes of determining income under
the child-support calculation. He argues that the circuit court did not do so here.
Jodie’s argument, however, is not preserved on appeal because he never made this
argument to the circuit court. The parties were invited to file a posthearing brief on the issues
to be decided by the court. Jodie elected not to address the issue of child support in his
brief, nor did he respond to the options for child-support calculations that Candie proposed
in her posttrial brief. Then, when the circuit court issued its letter opinion setting forth its
gross-income calculations for purposes of child support, Jodie again failed to object on this
ground. When Candie submitted her proposed divorce decree incorporating the court’s
child-support calculations, Jodie objected only to the specific amount of rental income used
in determining child support and to the date he began paying child support. This is despite
the inclusion of a child-support worksheet detailing the court’s calculation of gross income
and despite a line item on the worksheet specifically designated for spousal support. Here,
Jodie had ample opportunity to object to the court’s calculations prior to the entry of the
13 divorce decree and did not do so. Arguments not raised at trial will not be addressed for the
first time on appeal, and parties are bound on appeal by the scope and nature of the
objections and arguments they presented at trial. Rudder v. Hurst, 2009 Ark. App. 577, at 13,
337 S.W.3d 565, 574.
B. Rental-Property-Related Expenses
Jodie next argues that the circuit court included only the gross monthly rental
payments in income and failed to take into consideration expenses related to those properties
in violation of Administrative Order No. 10. Jodie argues that the court acknowledged that
the rental properties incurred expenses, including taxes, insurance, and repair fees but failed
to exclude these expenses in the calculation of income for purposes of the child-support
guidelines. As a result, he contends that the parties’ combined incomes were inflated,
resulting in a higher overall support obligation.
Jodie, however, failed to provide any documentation related to those expenses. He
did not document any of these expenses on his affidavit of financial means, and when asked,
could not declare how much income he received from those rental properties after expenses.
As a result, the court was provided with the amount of rental income the parties collected
on their investment property but was left to speculate on the expenses related to those
properties. Because the court had no basis on which to calculate expenses, it was left to
include the entirety of the rental income in the child-support calculation.
Jodie also argues that the circuit court erred in assigning him $675 a month in rental
income and Candie $725 a month in rental income. He argues that the evidence reflects
14 that Candie receives $750 a month in rental income and he receives only $650. However, as
Candie states in her brief, Jodie fails to show how these minor discrepancies affected the
amount of child support owed.
C. Imputation of Income
Jodie next argues that the circuit court erred in imputing income to him because he
is neither unemployed nor underemployed. Pursuant to the guidelines, income may be
imputed to a parent if the court finds that the parent is unemployed or underemployed.
Jodie contends that because there was no evidence that he was either unemployed or
underemployed, the court’s imputation of income was erroneous.
Again, Jodie failed to raise this specific argument with the circuit court. While he did
argue to the circuit court that he no longer engaged in his auto-body work or mowing
businesses and, therefore, no longer earned income from them, he did not argue, as he does
here, that the court erred in the imputation of income or the amount imputed to him. Again,
Jodie had ample opportunity after the court’s letter opinion to object to the court’s award
and to ask for reconsideration, arguing that the court could not impute income because he
was neither unemployed nor underemployed. He did not do so.
In any event, there was evidence presented that Jodie worked one out of every three
days as battalion chief for the fire department, performed body work on cars, and that for
thirty years before Candie moved out of the residence, he supplemented his income mowing
yards. While Jodie testified that he is no longer engaging in the latter two businesses, the
circuit court found his testimony to be not credible. As stated above, we give due deference
15 to that court’s superior position to determine the credibility of the witnesses and the weight
to be given to their testimony.
D. Supplemental Insurance
Jodie next argues that the circuit court erred in failing to deduct his payments for the
children’s supplemental health-insurance policy. He argues that the guidelines provide that
health-insurance premiums shall be added to the worksheet and must be considered by the
court when determining the total child-support obligation.
Jodie readily admitted at trial, however, that the AFLAC insurance policy is a
supplemental accident policy, not health insurance. It is a policy that pays out a certain
amount to the policyholder above and beyond what is covered by health insurance upon an
accident or emergency. Under that policy, AFLAC will pay Jodie if the kids become ill and
have to be hospitalized. Jodie acknowledged that it does not pay for the children’s routine
doctor or dental visits. The children’s actual health insurance is covered by ARKids First and
is provided at no cost to either party. Moreover, even if the AFLAC policy is considered
supplemental health insurance, nothing in Administrative Order No. 10 requires the court
to deduct the cost of supplemental health insurance from the calculation of child support.
Thus, the court did not abuse its discretion in the calculation of child support on this basis.
E. Advisory Opinion
Jodie’s final argument with respect to the court’s award of child support relates to the
court’s statement that any funds paid outside the clearinghouse would be considered a gift.
16 Jodie claims this amounts to an improper advisory opinion as to a future hypothetical
situation.
Here, the circuit court did not render an impermissible advisory opinion. A decision
that cannot affect the legal rights of the parties is an impermissible advisory opinion as are
opinions on abstract legal questions. 16 C.J.S. Constitutional Law § 390 Westlaw (database
updated Mar. 10, 2024). At the hearing, Candie presented evidence that Jodie would hand
deliver the child-support payments to her and record their interactions. She testified he once
almost ran over her arm when she leaned over to pick up a check that had fallen to the
ground. Jodie testified that he felt it necessary to hand deliver the support payments and
record their interactions because he believed Candie might not deposit the checks and claim
he had not made the required payments. To prevent a future dispute over the payment of
child support, the court ordered that all payments be made through the clearinghouse. Thus,
the court’s statement clearly related to an issue in dispute and was not an impermissible
advisory opinion.
Regardless, Jodie never made this argument to the circuit court, despite having the
opportunity to do so. He made multiple objections to the proposed order that contained the
same disputed language but did not make the objection he now asserts on appeal. Issues not
raised or ruled on in the circuit court will not be considered for the first time on appeal. In
re Est. of Reinkoester, 2023 Ark. App. 517, 678 S.W.3d 97; Holliman v. Johnson, 2016 Ark.
App. 39, 480 S.W.3d 903.
II. Spousal Support
17 Jodie next maintains that the circuit court erred in its award of alimony. He contends
that, in awarding Candie $1750 a month in permanent alimony, the court failed to consider
his ability to pay and only did so as a means of punishing Jodie for marital misconduct.
First, he claims that the amount awarded does not rectify the economic imbalance
between the parties because he cannot afford to pay $1750 a month in alimony and because
the court’s calculation grossly overcompensates Candie for the inequity in the parties’
earning abilities. He further argues that Candie was awarded half the marital assets, including
rental properties, and half of his marital share of his LOPFI pension and his Arkansas
Diamond 457(b) retirement plan. Thus, she will gain a significant boost in income once he
retires.
He further contends that the court based its alimony award on facts unsupported by
the record. For example, the court stated that Candie had amassed substantial credit-card
debt because she could not afford to eat and keep a roof over her head on $900 to $1000 a
month. However, Jodie claims it is impossible to determine how much of the $40,000 in
credit-card debt preceded her separation from Jodie and how much was accrued after. He
further contends that the circuit court had no basis for concluding that Candie would likely
incur more medical expenses in the future.
Finally, Jodie argues that the court awarded Candie an excessive amount of spousal
support as a means of punishing him for his “offensive” actions in moving his girlfriend and
her son into his home before the divorce was final. He points to the court’s statements from
the bench chastising him for the example his actions set for his children.
18 The purpose of alimony is to rectify the economic imbalances in earning power and
standard of living in light of the particular facts in each case. Chekuri v. Nekkalapudi, 2020
Ark. 74, at 16, 593 S.W.3d 467, 477. Alimony is not awarded as a reward to the receiving
spouse or as punishment of the spouse against whom it is charged. Drummond v. Drummond,
267 Ark. 449, 453, 590 S.W.2d 658, 661 (1979). We have held that 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. Chekuri, 2020 Ark. 74, at 16–17, 593 S.W.3d at 477.
In addition, the following secondary factors should be considered: (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 parties; (11) the duration of the marriage;
and (12) the amount of child support. Id. at 17, 593 S.W.3d at 477.
A circuit court’s decision regarding alimony is a matter that lies within its sound
discretion and will not be reversed on appeal absent an abuse of that discretion; an abuse of
discretion is discretion exercised thoughtlessly and without due consideration. Roberts v.
Roberts, 2023 Ark. App. 438, 676 S.W.3d 381.
19 Jodie’s claim that the circuit court awarded alimony to punish him for his marital
misconduct is misplaced. In its award of alimony, the court stated that it had considered the
requisite factors in making an award of alimony and determined that those factors
substantiated an alimony award. The court did note that Jodie’s decision to financially
provide for his live-in girlfriend while forcing his disabled wife to rely on financial assistance
from family and credit cards to survive was offensive. However, rather than viewing this as
a decision to punish Jodie, it could also be seen as the court’s awareness that he has an ability
to provide for someone other than himself and that he is voluntarily reducing his disposable
income by financially supporting his girlfriend and her son. Jodie testified that his girlfriend
is gainfully employed and was living on her own and paying her own rent prior to moving in
with Jodie. Jodie testified that he did not require her to contribute to the household because
he believed it was his responsibility to do so. Thus, the record does not demonstrate that the
circuit court’s rulings were motivated by a desire to punish Jodie; therefore, we reject this
contention.
As for his claim that he cannot afford to pay the alimony award on the basis of his
net take-home pay, his calculations fail to take into account the additional income the court
determined he is or could be making from his side businesses. Moreover, his claim that
Candie will gain a substantial boost in income once he retires is not supported by the record.
He presented no testimony as to how much his pension would be worth upon retirement.
Additionally, while Jodie claims that Candie received income-producing property in the
divorce, Candie testified that she intended to sell the property in order to reimburse her
20 brother for the money he had loaned her. As to her medical expenses, the circuit court heard
evidence that Candie has rheumatoid arthritis and is unable to work. She is under the regular
care of a rheumatologist and is on eight or nine different medications for her disease.
Here, the circuit court considered all the factors when making its alimony award,
including the length of the parties’ marriage, Candie’s disability, and her ability to live solely
on her disability income. The court also took into account the respective incomes of the
parties and found that Jodie has the ability to pay alimony to Candie. These facts are
supported by the evidence presented at trial. Because the circuit court considered all the
factors and based its decision on the facts presented at trial, the court did not abuse its
discretion in awarding alimony.
III. Division of Marital Debt
Finally, Jodie argues that the circuit court erred in ordering him to pay 73 percent of
the parties’ marital debt when the assets were equally divided between them. He contends
that, taking into consideration his child-support and alimony obligations, his net income is
substantially less than Candie’s.
An allocation of the parties’ debt is an essential item to be resolved in a divorce
dispute, and it must be considered in the context of the distribution of all the parties’
property. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003). A circuit court’s
decision to allocate debt to a particular party or in a particular manner is a question of fact
and will not be reversed on appeal unless clearly erroneous. Id. It is not erroneous to
21 determine that debts should be allocated between the parties because of their relative ability
to pay. Id.
Arkansas Code Annotated section 9-12-315 (Repl. 2020) provides that all marital
property shall be distributed one-half to each party unless the court finds such a division to
be inequitable, and when property is divided unequally the court must state its basis and
reasons for not dividing the marital property equally between the parties, and the basis and
reasons should be recited in the order entered in the matter. But it is well settled that section
9-12-315 does not apply to the division of marital debts. Williams, supra.
Here, Candie testified that the purchases she made on the credit cards were for
essential items, like food, gas, and clothing for the children, even while they were separated
but living in the same household. Jodie testified that Candie has a spending problem and
that the credit-card bills were due to inappropriate and excessive spending. He did not,
however, present any documentation to support his claims, and the circuit court found that
his testimony was not credible. Having reviewed the evidence before us, it is clear that the
circuit court did not abuse its discretion in its division of the marital debt.
Affirmed.
ABRAMSON, J., agrees.
VIRDEN, J., concurs.
BART F. VIRDEN, Judge, concurring. As stated in the conclusion of the majority
opinion, I do agree with the holding. What is not stated, however, is my reluctance. I agree
that the result we have announced here is merited; indeed, it is even mandated by our
22 standard of review. I write separately to highlight the importance of the decision today as
both a cautionary tale and a warning. The requirement of issue preservation is ever present
in our work. It is a well-reasoned doctrine. We should not review a decision by the trial court
when that court has not had the opportunity to rule on it first. Grynwald v. Grynwald, 2022
Ark. App. 310, 651 S.W.3d 177 (recognizing that an argument not first presented to the trial
court for a ruling is not preserved and thus not addressed on appeal). If this case had been
presented to us in a different posture, i.e., had there been a trial and then a decision issued
by the court—with nothing in between—I would argue vociferously that Jodie’s arguments
were, in fact, preserved and properly before us. Then, I would steadfastly maintain that the
trial court erred by not taking into account spousal support when setting child support. The
case would be reversed on that ground alone in my opinion.1
However, as stated in the majority opinion, that is not the situation before us. Jodie
had multiple opportunities to provide input into the decision but failed to do so. We are
not, with the majority opinion, requiring postjudgment motions to preserve an issue for
appeal. The facts of this case show that the matter was ongoing after the hearing considering
the parties’ posttrial motions, the trial court’s letter opinion, and opposing counsel’s
1 The same may be said for the imputed-income issue. Jodie’s assertion that he worked full time (sixty hours a week) was not challenged. The trial court, in essence, ordered him to work more than full time. As stated in the majority opinion, the purpose of imputing income is to account for the situation in which one is underemployed or unemployed. Jodie’s situation is neither.
23 proposed orders, and there were ample indications that the child-support calculations were
not correct as submitted.
Taylor & Taylor Law Firm, P.A., by: Tory H. Lewis, Andrew M. Taylor, and Tasha C.
Taylor, for appellant.
Kamps & Griffis PLLC, by: Adrienne M. Griffis, for appellee.