{
  "id": 6139274,
  "name": "Harold L. BARKER v. Syble D. BARKER",
  "name_abbreviation": "Barker v. Barker",
  "decision_date": "1999-04-28",
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  "first_page": "187",
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  "casebody": {
    "judges": [
      "Hart, Rogers, and Stroud, JJ., agree.",
      "Bird and Griffen, JJ., dissent."
    ],
    "parties": [
      "Harold L. BARKER v. Syble D. BARKER"
    ],
    "opinions": [
      {
        "text": "Margaret Meads, Judge.\nHarold and Syble Barker married on November 9, 1970, and separated on March 3, 1997. A decree of divorce was entered in the Union County Chancery Court on April 9, 1998, granting appellant a divorce, dividing appellant\u2019s pension equally between the parties pursuant to a qualified domestic relations order, awarding appellee alimony of $100 per week, and dividing the marital property unequally in favor of appellee due to appellant\u2019s depletion of the parties\u2019 savings account shortly before he filed for divorce. Appellant appeals the $100 per week alimony award, asserting that the chancellor abused his discretion in determining the amount of alimony to be paid. We agree, and we reverse and remand this issue to the chancellor.\nAn award of alimony is not mandatory, but is solely within the chancellor\u2019s discretion, and such an award will not be reversed absent an abuse of that discretion. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). If alimony is awarded, it should be set at an amount that is reasonable under the circumstances. Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1998). The purpose of alimony is to rectify, insofar as is reasonably possible, the frequent economic imbalance in the earning power and standard of living of the divorced parties in light of the particular facts of each case. Id.; Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998).\nThe primary factors to be considered in awarding alimony are the need of one spouse and the other spouse\u2019s ability to pay, Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996), but certain secondary factors may be considered in setting the amount of alimony. See, e.g., Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980); Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997). These secondary factors include (1) the financial circumstances of both parties, (2) the amount and nature of the income, both current and anticipated, of both parties, and (3) the extent and nature of the resources and assets of each of the parties. Id. Ordinarily, fault or marital misconduct is not a factor in an award of alimony. Mitchell, supra.\nIn the present case, the parties had been married for approximately twenty-seven years. Both parties are retired; appellant receives $675 per month from his Teamster\u2019s pension and $872 monthly in Social Security benefits, and appellee receives $447 per month in Social Security benefits. There are no other sources of income. At the hearing, the chancellor ordered the marital home to be sold; because appellant had failed to preserve marital assets by spending most of the parties\u2019 savings at casinos, he further ordered that appellee receive the first $7,500 in profit from the sale of the house, with the balance of the profit, if any, to be divided equally. The remainder of the personal property was divided equally among the parties, with the exception of those items that were non-marital property. The chancellor ruled appellant\u2019s pension was marital property and ordered that it be divided equally between the parties. In awarding alimony, the chancellor\u2019s order provides, \u201cThere is a substantial disparity in incomes of these parties and [appellant] should pay to [appellee] the sum of $100.00 per week alimony.\u201d\nWithout the alimony award, adding each party\u2019s Social Security check and one-half of the pension yields the following monthly income:\n$872.00 + 337.50 = $1209.50 Appellant:\n$447.00 + 337.50 = $ 784.50 Appellee:\nWe agree that these figures reflect a substantial disparity in the incomes of the parties, and therefore we find that an alimony award is justified.\nHowever, the chancellor\u2019s award has resulted in an even greater disparity in the parties\u2019 incomes and has not rectified the economic imbalance between the parties. Taking into consideration the alimony award ordered by the chancellor, the parties\u2019 monthly income is:\nAppellant: $1209.50 - $433.40 = $ 776.10\nAppellee: $ 784.50 + $433.40 = $1217.90\nAppellee argues that the chancellor awarded her alimony to compensate for appellant squandering the parties\u2019 retirement savings immediately prior to filing for divorce. We disagree. The chancellor addressed that concern separately when he ordered that appellee be given the first $7,500 in profit from sale of the marital home. The sole basis stated by the chancellor for awarding alimony was to address the substantial disparity in the parties\u2019 income.\nFor the reasons stated above, we find that the chancellor abused his discretion in ordering appellant to pay $100 per week alimony, and we reverse and remand to the chancellor for a determination of the proper amount of alimony.\nReversed and remanded.\nHart, Rogers, and Stroud, JJ., agree.\nBird and Griffen, JJ., dissent.",
        "type": "majority",
        "author": "Margaret Meads, Judge."
      },
      {
        "text": "Sam Bird, Judge,\ndissenting. I respectfully dissent from the majority opinion because I do not believe that the chancellor abused his discretion in determining the amount of alimony to be paid to the appellee.\nAs the majority opinion correctly points out, an award of alimony is not mandatory, but is solely within the chancellor\u2019s discretion, and such an award is not reversed unless this court determines that the chancellor abused his discretion in making the award. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). The purpose of alimony is to rectify, insofar as is reasonably possible, the frequent economic imbalance in the earning power and standard of living of the divorced husband and wife. Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1988). The alimony award must always depend upon the particular facts of each case. Dean v. Dean, 222 Ark. 219, 258 S.W.2d 54 (1953). The primary factors to consider in determining whether to award alimony is the need of one spouse and the ability of the other spouse to pay. Mitchell v. Mitchell, supra. To balance these primary factors, a chancery court should consider certain secondary factors, including the financial circumstances of both parties; the amount and nature of the income, both current and anticipated, of both parties; the extent and nature of the resources and assets of each of the parties; and the earning ability and capacity of both parties. Anderson v. Anderson, supra.\nDuring the hearing, the appellant testified that he \u201ccashed in\u201d $17,000 in his and appellee\u2019s retirement savings in 1996 or 1997, that he gave various sums to family members, and that he paid $2,000 to the IRS. Appellant admitted that he lost $10,000 of their savings at gambling casinos. According to appellant\u2019s abstract, he testified as follows: \u201cI spent several thousand dollars when I went to the casinos. I had a few drinks and I was broke. I took somewhere in the neighborhood of $10,000 with me. When I sobered up, I was broke.\u201d\nThe appellee, who was seeking $150 in alimony per week, testified that the appellant had actually squandered all of the $17,000 that they had accumulated as retirement savings, not just the $10,000 that he admitted to losing at the casino. She stated that appellant had been paying temporary alimony of $100 per week before the divorce decree was entered, some of which she used to pay their $176 monthly house payment.\nIn his order, the chancellor noted that there was a substantial disparity in the incomes of the parties and ordered appellant to pay appellee $100 per week in alimony. He also noted that the appellant\u2019s squandering of marital funds justified an unequal division of certain marital property, and stated that this division should occur when the marital home is sold. The chancellor ordered that, from the proceeds of the sale of the marital home, the appellee should be paid $7,500 and the remaining proceeds should be divided equally between the parties. It should be noted that half of that $7,500 would have been received by appellee upon the sale of the house anyway, so that the effect of what the chancellor did was to award appellee only $3,750 to compensate her for the appellant\u2019s squandering of all the couple\u2019s savings, including $10,000 that appellant admitted losing on his gambling trip.\nBased upon the testimony, I do not agree that the chancellor abused his discretion in awarding appellee $100 per week in alimony. The amount the appellant receives in social security retirement is $872; by contrast, appellee receives $447 in social security retirement. Further, appellant admitted that he lost $10,000 of the couple\u2019s retirement savings, and there was testimony that he actually squandered their entire $17,000 in savings. Without the award of alimony, the chancellor\u2019s unequal distribution of the proceeds from the sale of the home does not adequately compensate appellee for appellant\u2019s irresponsible conduct that resulted in the loss of their entire savings. Therefore, I do not believe it was an abuse of the chancellor\u2019s discretion to award appellee $100 per week in alimony, and I would affirm.\nGriffen, J., joins in this dissent.",
        "type": "dissent",
        "author": "Sam Bird, Judge,"
      }
    ],
    "attorneys": [
      "Jack W. Barker, for appellant.",
      "Ronald L. Griggs, for appellee."
    ],
    "corrections": "",
    "head_matter": "Harold L. BARKER v. Syble D. BARKER\nCA 98-838\n992 S.W.2d 136\nCourt of Appeals of Arkansas Divisions I and II\nOpinion delivered April 28, 1999\nJack W. Barker, for appellant.\nRonald L. Griggs, for appellee."
  },
  "file_name": "0187-01",
  "first_page_order": 215,
  "last_page_order": 220
}