Jez v. Jez

Cite as 2016 Ark. App. 594

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-191

Opinion Delivered December 7, 2016

JAMES JEZ APPEAL FROM THE PULASKI COUNTY
APPELLANT CIRCUIT COURT, THIRD DIVISION
[NO. 60DR-14-3475]
V.
HONORABLE CATHLEEN V.
COMPTON, JUDGE
ANGEL JEZ
APPELLEE AFFIRMED

LARRY D. VAUGHT, Judge

Appellant James “Jimmy” Jez appeals the Pulaski County Circuit Court’s October 13,

2015 divorce decree. Jimmy argues that the circuit court erred in awarding appellee Angel Jez

half of his one-third interest in the Jez Family Limited Partnership, in calculating child support,

and in awarding Angel alimony. We affirm.

The parties were married on September 25, 1995, and they had a son, J.J., in 2000. The

parties separated on July 19, 2014. On August 8, 2014, Angel filed a complaint for divorce,

and on August 14, 2014, Jimmy filed an answer and a counterclaim for divorce. 1

After multiple hearings, a divorce decree was entered by the circuit court on October

13, 2015. Relevant to this appeal, the decree granted Angel a divorce based on general

indignities, awarded her custody of J.J., ordered Jimmy to pay child support of $316 biweekly,

1Jimmy’s counterclaim was dismissed by an order entered on July 7, 2015.
Cite as 2016 Ark. App. 594

ordered him to pay Angel $200 per month in alimony, and awarded Angel a one-half interest

of Jimmy’s interest in his family’s partnership. Jimmy filed a notice of appeal from this order

on October 20, 2015. 2

Jimmy’s first point on appeal is that the circuit court clearly erred in awarding Angel a

one-half share of his interest in the Jez Family partnership. We review division-of-marital-

property cases de novo, but the circuit court’s findings of fact are affirmed unless they are

clearly erroneous or against the preponderance of the evidence. Sanders v. Passmore, 2016 Ark.

App. 370, at 7. A finding of fact is clearly erroneous when the reviewing court is left with a

definite and firm conviction that a mistake has been committed; in reviewing the circuit court’s

findings, the reviewing court gives due deference to the circuit court’s superior position to

determine the credibility of the witnesses and the weight to be accorded to each witness’s

testimony. Id.

Jimmy argues that the circuit court erred in finding that the partnership was marital

property and dividing it equally. He contends that his testimony and that of his father reflect

that his interest in the partnership was a gift; therefore, he claims it is his separate, nonmarital

property and, pursuant to Arkansas Code Annotated section 9-12-315, should be returned to

him.

Arkansas Code Annotated section 9-12-315 (Repl. 2015) governs the division of marital

property. Section 9-12-315(a)(1)(A) provides that marital property is to be divided equally

2Thereafter, both parties filed motions for ruling, reconsideration, and relief. On
November 19, 2015, the circuit court entered an order in response to the motions. Jimmy did
not amend his notice of appeal following entry of the November 19, 2015 order, but none of
his points on appeal challenge the new findings in that order.
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unless it would be inequitable to do so. If the property is divided unequally, then the court

must give reasons for its division in the order. Ark. Code Ann. § 9-12-315(a)(1)(B). The code

also provides a list of factors the court may consider when choosing unequal division. Ark.

Code Ann. § 9-12-315(a)(1)(A)(i)–(ix). Section 9-12-315(b)(1) excludes from the definition of

marital property “property acquired . . . by gift.” Jimmy had the burden of proving that his

partnership interest was his separate, nonmarital property. Johnson v. Johnson, 2011 Ark. App.

276, at 8, 378 S.W.3d 889, 895.

Here, the decree reflects that Jimmy’s partnership interest was marital property (not a

gift), which the court divided equally pursuant to section 9-12-315(a)(1)(A). This was not

clearly erroneous. The partnership agreement reveals that it was created on May 22, 1996,

during the parties’ marriage. The agreement further reflects that during the marriage Jimmy

contributed $11,132.21 as an initial contribution to the partnership in return for a 33% interest

in the partnership. Thus, the evidence demonstrates that he used marital funds to invest in the

partnership. Jimmy offered no evidence to the contrary. Finally, there was testimony that

Angel and Jimmy paid taxes on the partnership during their marriage. We acknowledge the

testimony of Jimmy and his father that Jimmy’s interest in the partnership was a gift; however,

in reviewing a circuit court’s findings, we give due deference to the court’s superior position

to determine the credibility of witnesses and the weight to be accorded to their testimony.

Myrick v. Myrick, 339 Ark. 1, 9, 2 S.W.3d 60, 65 (1999). Therefore, based on our de novo

review, we hold that the court was not clearly erroneous in finding that Jimmy failed to meet

his burden of proving that his interest in the family partnership was a gift. Accordingly, we

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Cite as 2016 Ark. App. 594

affirm the trial court’s finding that the partnership was marital property and equally distributing

it.

Jimmy also argues on appeal that the circuit court erred in calculating his income for

child-support purposes. He claims that the evidence fails to support the finding that his

monthly “take-home pay” is $2,692.31.

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. Taku v. Hausman, 2014 Ark. App. 615, at 4. 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 accorded to their testimony. Id.

Here, the circuit court did not clearly err in awarding child support of $316 biweekly.

While the decree stated that the child-support award was based on Jimmy’s monthly “take-

home” income of $2,692.31, the support award was actually calculated based on his net income

of $2,113.50, which was the income figure the parties stipulated to at the onset of the final

hearing. The parties not only stipulated to the $2,113.50 income figure, but they further

stipulated that his child-support obligation, based on that income, was $316 biweekly. It was

Jimmy’s counsel who articulated the stipulation and made the calculations at the hearing. There

was no evidence or argument on the matter of child support thereafter. Accordingly, we hold

that the circuit court did not clearly err in relying on the parties’ income and child-support

stipulation and, accordingly, in finding that Jimmy was obligated to pay child support of $316

biweekly based on that income. Taku, 2014 Ark. App. 615, at 5. Accordingly, we affirm on

this point.

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Jimmy’s final argument on appeal is that the circuit court abused its discretion in

awarding Angel alimony of $200 per month. He argues that there is no economic imbalance

in the earning power or standard of living to justify the award; Angel’s financial condition is

better than his when child support is deducted from his income and added to hers; and he has

been ordered to pay a larger portion of the parties’ substantial debt.

An award of alimony is a question that addresses itself to the sound discretion of the

circuit court. Kuchmas v. Kuchmas, 368 Ark. 43, 45, 243 S.W.3d 270, 271 (2006). The supreme

court has held that the circuit court can make an award of alimony that is reasonable under

the circumstances. Id., 243 S.W.3d at 271. The purpose of alimony is to rectify economic

imbalances in earning power and standard of living in light of the particular facts in each case.

Id., 243 S.W.3d at 271. The primary factors that 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., 243 S.W.3d at 271. The circuit court should also consider the following secondary

factors: (1) the financial circumstances of both parties; (2) the amount and nature of the

income, both current and anticipated, of both parties; (3) the extent and nature of the resources

and assets of each of the parties; (4) the earning ability and capacity of both parties. Id. at 45–

46, 243 S.W.3d at 271–72. The amount of alimony should not be reduced to a mathematical

formula because the need for flexibility outweighs the need for relative certainty. Id. at 46, 243

S.W.3d at 272. An award of alimony will not be reversed unless there is an abuse of that

discretion. Jones v. Jones, 2014 Ark. App. 614, at 3, 447 S.W.3d 599, 601.

The circuit court took into consideration many factors in reaching its conclusion to

award alimony—Angel’s need and Jimmy’s ability to pay, the substantial debt owed by the

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parties, the lack of assets of the parties, and their twenty-year marriage. The court considered

the parties’ work history and future earning capacity. Jimmy worked throughout the marriage

and was currently working at a job where he could earn bonuses. Angel’s work history was

limited to thirteen years of the marriage. And while she was currently working, her hours had

been reduced due to her medical condition, she had been demoted, and her pay had been

reduced.

The appropriateness of an alimony award is determined in light of the facts in each

case, and the circuit court is in the best position to view the needs of the parties in connection

with an alimony award. Bennett v. Bennett, 2016 Ark. App. 308, at 14, 496 S.W.3d 409, 417. We

hold that the circuit court in this case applied the correct legal standard, found facts that were

supported by the evidence presented, and did not abuse its discretion in awarding alimony in

the amount it did to Angel. 3 We affirm the alimony award.

Affirmed.

ABRAMSON and BROWN, JJ., agree.

Alexander Law Firm, by: Hubert W. Alexander, for appellant.

Hilburn, Calhoon, Harlper, Pruniski & Calhoun, Ltd., by: Sam Hilburn and Erin W.

Lewis, for appellee.

3We reject Jimmy’s argument that the circuit court awarded Angel alimony to punish
him. There is no indication in the decree that the alimony award was an impermissible
punishment of Jimmy for his adultery. In fact, the circuit court, in its decree, expressly stated
that the fault of either party is not to be considered in the distribution of property and in
setting alimony. In making the award of alimony, the circuit court considered both parties’
testimony regarding their income, assets, work history, standard of living, living arrangements,
transportation needs, and future ability to earn money. Bennett, 2016 Ark. App. 308, at 12–13,
496 S.W.3d at 417.
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