Bohannon v. Bohannon

Donald L. Corbin, Judge. Appellant, Alton Bohan-non, appeals a decision of the chancellor requiring appellant to pay appellee, Jewell Bohannon, alimony in the sum of $400.00 per month and the award of possession of the marital home to appellee. We affirm the chancellor’s decree in both respects. At the time of the hearing on November 17, 1983, appellee was seventy years of age and the parties had been married for 48 years. The record reflects that appellee was in poor health, unable to work and had a monthly income of $141.00. Appellee’s testimony established her monthly expenses at over $500.00, which figure excluded gasoline, car upkeep and insurance expenses. Appellant did not choose to testify, the proof of more than three years separation having been stipulated by the parties and verified by appellee in her testimony. It was also stipulated by the parties that appellant’s monthly income amounted to $1,291.00 It is well settled that while chancery cases are tried de novo on appeal, the findings of a chancellor will not be reversed unless clearly against a preponderance of the evidence. Since the question of the preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); A.R.C.P. Rule 52(a). The award of alimony in a divorce action is not mandatory but is a question which addresses itself to the sound discretion of the chancellor. We do not reverse the chancellor’s determination unless we find a clear abuse of that discretion. Weathers v. Weathers, 9 Ark. App. 300, 658 S.W.2d 427 (1983); Neal v. Neal, 258 Ark. 338, 524 S.W.2d 460 (1975). Among the factors considered by the courts in fixing the amount of alimony are the financial circumstances of both parties, the financial needs and obligations of their past standard of living, the value of jointly owned property, the amount and nature of the current and anticipated income of each, the extent and nature of the resources and assets of each that is spendable, the amounts, after entry of the decree, which will be available to each for the payment of living éxpenses, the earning ability and capacity of both husband and wife, property awarded or given to one of the parties by the court or the other party, the disposition made of the homestead or jointly owned property, the condition of their health and medical needs, the relative fault of the parties and their conduct before and after separation to each other and to the property of one or both, the duration of the marriage and amount of child support. Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). In Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982), the Arkansas Supreme Court deleted the relative fault of the parties as a factor considered by the courts in fixing the amount of alimony. It has also been stated that the primary consideration is the ability of the husband to pay regardless of what other factors may indicate. Boyles, supra. Although appellant in the instant case had the opportunity to present evidence of his financial condition, he elected not to testify. From our de novo review of the evidence presented, we cannot say that the chancellor’s award of alimony was an abuse of discretion. Appellant also contends that the court erred in awarding appellee the use and possession of the marital home. The abstract of the record reflects that a decree of separate maintenance was entered on May 20, 1981, wherein appellee was granted separate maintenance. The decree recites that the parties, together with their then respective attorneys, were present and that the parties had agreed in open court upon a settlement of their property rights, among other things. Pursuant to this agreement,. appellee was placed in possession of four acres and a residence, title to which was in the name of appellant. The agreement was approved by the court and incorporated in the decree. In his complaint for divorce, appellant alleged that property rights had been adjudicated and settled between the parties. Appellee, in her response to appellant’s complaint for divorce, stated that a decree of separate maintenance previously issued by the trial court on May 20, 1981, incorporating a property settlement agreement should be enforced and continued; and additionally, stated that if the court didn’t enforce the agreement, that additional property issues existing between the parties should be settled. On the date set for hearing, appellant’s attorney announced that three issues were to be decided. These included the divorce, alimony and attorney’s fees. The record reflects that appellant’s attorney did not raise the issue of possession of the marital home at this time. This argument was raised for the first time on appeal. We do not consider matters raised in such a manner. Bull v. Brantner, 10 Ark. App. 229, 662 S.W.2d 476 (1984). Affirmed. Cooper and Mayfield, JJ., dissent.