                                Cite as 2017 Ark. App. 439


                 ARKANSAS COURT OF APPEALS
                                       DIVISION II
                                         CV-17-30
                                       No.

                                                OPINION DELIVERED: SEPTEMBER 13, 2017
MELISSA HUNDLEY HAYS
                               APPELLANT APPEAL FROM THE FAULKNER
                                         COUNTY CIRCUIT COURT
                                         [NO. 23DR-16-282]
V.
                                                HONORABLE DAVID M. CLARK,
                                                JUDGE
JASON LEE HAYS
                                  APPELLEE AFFIRMED




                               ROBERT J. GLADWIN, Judge

        The Faulkner County Circuit Court issued a divorce decree on October 21, 2016,

 denying permanent alimony to appellant Melissa Hundley Hays. On appeal, Melissa argues

 that the trial court abused its discretion by applying a public-policy argument to deny her

 request for permanent alimony. We affirm.

        Appellee Jason Lee Hays and Melissa married on April 26, 2009, and no children

 were born of the marriage. Jason filed for divorce on March 17, 2016, and Melissa

 counterclaimed for separate maintenance, alleging that she was disabled, unable to work,

 and had not worked during their marriage. Melissa sought temporary and permanent

 alimony, and she later amended her counterclaim to ask for a divorce. At the divorce trial,

 the parties stipulated that Melissa would be granted the divorce on her amended

 counterclaim, and Jason waived corroboration of grounds. The parties further stipulated

 that the home in which they had lived was Melissa’s premarital property.
                                Cite as 2017 Ark. App. 439

       Janet Lee Hundley, Melissa’s mother, testified that her daughter is thirty-six years old

and previously had only two short-term jobs, at Walmart and a veterinarian’s clinic, but she

had not worked since she married Jason. Ms. Hundley said that Melissa and Jason had been

together for seventeen years but had been married for only seven years. She said that Melissa

is a visual learner and has an “information processing malfunction.” She said that when

Melissa gets upset or gets “thrown” about something, she “just shuts down. She cannot

function. She suffers from severe anxiety.” She said that Jason knew about Melissa’s

disabilities, and she had explained to him that when Melissa mixes up her sentences, it is

because of her learning style. She said that Melissa had done some light filing and copying

under supervision for the family firm; however, she said that these skills would not translate

into real-world jobs.

       Ms. Hundley said that Melissa does not drink but that Jason does. Ms. Hundley said

that Melissa takes medication for anxiety and that there were times, when Melissa and Jason

were fighting, that she believed Melissa had overmedicated herself. She claimed that she

had not seen this since Melissa and Jason had separated.

       Ms. Hundley said that Jason had a new vehicle that he had purchased by trading in a

truck that had been a gift to Melissa from her and her husband. She also described the

condition of Melissa’s home when Jason left: it had paint all over the ceiling and carpet

where Jason had begun to paint; there were holes in the wall; the cabinet doors were loose;

electrical covers were broken; the dishwasher had no door; and there was only cold water

connected to the washer.




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       On cross-examination, Ms. Hundley said that Melissa could drive and that she had

passed a driver’s test when she was seventeen. Melissa had gone to college for a year but

could not make her “grades,” even with her mother’s tutoring. Ms. Hundley had not

witnessed Melissa overmedicating since her separation from Jason, but she admitted that she

had not been with Melissa all the time. She also said that Jason had emailed her about

concerns he had regarding Melissa’s overmedication. Jason had specifically asked Ms.

Hundley to help him with this more than once. However, she said that she does not believe

Melissa has a problem overusing prescription medications anymore. She admitted to having

asked Jason in a 2015 email to hide Melissa’s pills.

       Ms. Hundley said that Jason had paid the mortgage payments on Melissa’s house but

had not kept the house in good repair. She also said that because of her health issues, Melissa

spent her time playing video games, watching movies, and cleaning her house. She thought

Melissa spent two or three hours per day playing video games. She said that Melissa drove

her car for grocery shopping, getting to Little Rock, or going to the doctor. She said that

she trusted Melissa to deal with her doctors and to take her medications. She said that Jason

would not go to couple’s counseling with Melissa in 2014, when Jason had filed for divorce

the first time. After they had reconciled, Jason promised to be calmer with Melissa, and

Melissa promised to find a job. She said that she had helped Melissa fill out application

forms online, but Melissa could not find a job. She also had helped Melissa fill out a Social

Security disability application, but Melissa’s application was denied.

       Jason testified that he had paid the mortgage on the house when he was living with

Melissa. He also admitted that he had caused the damage to the home depicted in


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photographs presented as evidence.      He said that he knew of Melissa’s information-

processing problem and had seen the effects of it. He said that when they had a conversation

about uncomfortable things, Melissa would shut down. He said that Melissa has trouble

getting her point across and she mixes her words up in her sentences. He claimed that

Melissa had always had these problems but that they had worsened.

       Before he married Melissa in 2009, he had been with her for twelve years. He was

aware of her two small jobs and that they had not lasted. He said that Melissa had agreed

to get a job after they married in 2009. However, from the time they were married, Melissa

had never worked. He said that he thought Melissa could be a stocker at Kroger and that

she wanted a job where she did not have to deal with people and could work on her own.

He thought that she presented well and that someone would hire her.

       Jason said that he drank to excess sometimes and that Melissa did not drink. He said

that he has a girlfriend named Susan Lambert, who is unemployed, and that he does not

support her. He said that Melissa was covered by health insurance through his employer.

He agreed that he had contributed more than $2000 a month to Melissa before June 2016.

However, he said that he had resisted paying spousal support because he thought Melissa

needed to have something to do, and if he continued “to feed that,” he was worried for her

health and safety. Jason said that he worked as a conductor for Amtrak and suffered from

PTSD because a girl had stepped in front of his train while he was training as an engineer.

He also had injured his arm in April 2015 and was off work for seven and a half months.

Recently, he had been working two jobs to cover for another conductor, so he had been

able to contribute more to Melissa. He thought that if Melissa could get a job, she could


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support herself. He paid $10,000 down on his new truck by trading in the 2013 truck he

had owned with Melissa. They got the 2013 truck by trading in her truck to make the

$1000 down payment. He owed $28,000 on his new vehicle.

       On cross-examination, Jason said that Melissa played Pictionary and Trivial Pursuit

and that she played video games that required complex thought. He said that these games

took dexterity and that she was better at them than he. Because of this, he thought she

could hold down a menial or higher-than-menial job. He had not seen any effort by Melissa

in the last four to five years to get a job. He said that Melissa did not drink but did become

intoxicated several times a week when she took her medication. He said that he had

contributed money for Melissa’s care during separation because he had not wanted her to

struggle. He tried to keep Melissa’s bank account balance at $1000.

       Melissa testified that Jason had been abusive by putting his hand on her and holding

her to the ground. She had not worked since marrying Jason except to help her mother a

little. She said that when they married, Jason told her he would take care of her and that

she did not have to work. She said that she had difficulty communicating with people and

understanding them. She had difficulty even getting on the phone. When Jason yelled at

her, or if she did not understand something, she “just fold[ed].”

       Melissa said that she saw a pain specialist for migraines and a psychiatrist for anxiety

and depression. She said that she took naproxen for arthritis in her hands and hydrocodone

for headaches. Her psychiatrist had prescribed clonazepam and Zoloft. She said that when

she had been with Jason, it may have looked like she was medicated, but she had been




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depressed and “just falling apart.” When he left, she was “so much better and did not feel

like [she] was out of it.”

       Melissa said that she had played video games to escape from Jason’s abuse and it

helped with her visual processing. She also cleaned her house, worked in the yard, and had

applied for jobs at Target and Walmart. She had a high school diploma and a year and a

half in college, where she struggled. She had no specialized training and zero income, and

she was denied Social Security disability. She said it would cost $4000 to $7000 to repair

her home. She also introduced a video containing a conversation between her and Jason in

which he kept repeating, “Apply for a job.”

       Melissa testified on cross-examination that she was asking for $1800 a month in

alimony for life. She said that she was seventeen years old when they began dating, and

Jason was twenty-six. Jason moved in with her and her parents and began attending ITT;

her parents paid for everything. She denied having a problem with prescription drugs. She

said that she did not think she could work “right now” and that she could play video games

but not for long because her fingers would hurt.

       On re-direct examination, Jason said that he had counted Melissa’s pills in the past

and knew that she would run out of her pills two or three weeks before time to get a refill,

especially the clonazepam. He said that she took so much that she lost track of days and

would be in a slump and a stupor when he would get home. He said he had tried to get

her to go to rehab, but she had no interest in it, and he thought that she would overdose

and kill herself. He said he was not asking for any interest in the house that she owned with

her parents and that the Duncan Law Firm was handling their case over the oil spill in


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Mayflower. He also said that Melissa played video games in marathon sessions, five or six

hours every day. He thought the pain in her hands was from holding the controller all day.

       Regarding alimony, the trial court ruled from the bench as follows:

               In doing my Franklin [v. Franklin, 25 Ark. App. 287, 758 S.W.2d 7 (1988)]
       analysis, I think what I want to do in discussing permanent alimony is to discuss what
       this case is not. It is not a case where one spouse has sacrificed their dreams and
       desires to provide for the other spouse to achieve their goals. No career was
       sacrificed; there are no children of the marriage.

              The parties have not become accustomed to living a lavish lifestyle. This is
       not a case where one party suffers some catastrophic injury that precludes them from
       doing anything.

              If I were to completely believe Melissa’s version of events, then if this marriage
       had not occurred, she would still be living with her parents. If I believe her version
       of events and if I deny spousal support, she would walk away in the exact same
       position that she entered the marriage.

               You have to look at this from a procedural or from a policy standpoint. If we
       were to burden a spouse to be completely obligated to support his ex-spouse for
       conditions that spouse had when they entered into the marriage, we discourage
       marriage. I don’t know if “until death do us part” is still alive, but I want to still
       believe that everyone enters into marriage thinking that’s what’s going to happen.
       But if we are in a position that it is known that if you’re marrying someone who has
       special needs and abilities and you’re going to try to make that work but it doesn’t
       work, when the marriage dissolves you’re on the hook for life, it’s going to be a
       disincentive for those people to find marriage. I mean that’s something that will run
       through people’s minds. So, I cannot find that this is a case in which permanent
       alimony is justified.

       The trial court granted the divorce, divided the portion of retirement accrued as a

marital asset, and made Jason responsible for his debt and for his truck. Melissa was granted

judgment of $5000 for the marital property used as a trade-in on the new truck. The trial

court then awarded “bridged” alimony. The trial court considered that Jason had made

mortgage payments on the house owned by Melissa, giving her a $9000 improvement value.

The trial court directed that Jason pay Melissa $300 per pay period (biweekly) for nine

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months, after which the payment would drop to $200 per pay period for an additional two

months.

       Melissa filed a timely notice of appeal, and this appeal followed. This court reviews

cases involving alimony under the applicable law as follows:

              Appeals of domestic-relations proceedings are reviewed de novo. Wadley v.
       Wadley, 2012 Ark. App. 208, at 2, 395 S.W.3d 411, 413. The decision to grant
       alimony lies within the sound discretion of the circuit court and will not be reversed
       on appeal, absent an abuse of discretion. Taylor v. Taylor, 369 Ark. 31, 34, 250
       S.W.3d 232, 235 (2007). It should also be noted that the division of marital property
       and an award of alimony are complementary devices that a circuit court may employ
       to make the dissolution of the marriage financially equitable. Webb v. Webb, 2014
       Ark. App. 697, at 3–4, 450 S.W.3d 265, 268–69. There can be no abuse of discretion,
       and a circuit court’s decision regarding these issues cannot be overturned unless it
       can be demonstrated that it exercised its discretion improvidently or thoughtlessly
       without due consideration. Smithson v. Smithson, 2014 Ark. App. 340, 436 S.W.3d
       491.

               An award of alimony is not mandatory but rather is discretionary, and the
       circuit court’s decision regarding any such award will not be reversed on appeal
       absent an abuse of that discretion. Smithson, supra. This court has recognized that a
       circuit court is in the best position to view the needs of the parties in connection
       with an alimony award. Id. The purpose of alimony is to rectify the economic
       imbalance in the earning power and standard of living of the divorcing parties, in
       light of the particular facts of each case. Id. The primary factors are the financial need
       of one spouse and the other spouse’s ability to pay, but other factors are the
       circumstances of the parties; the couple’s past standard of living; the value of jointly
       owned property; 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 party; the
       amount of each party’s spendable income; the earning ability and capacity of both
       parties; the disposition of the homestead or jointly owned property; the condition of
       health and medical needs of the parties; and the duration of the marriage. Id. The
       need for flexibility outweighs the need for relative certainty in assessing alimony. Id.
       If alimony is awarded at all, it should be an amount that is reasonable under all the
       circumstances. Id.

Beck v. Beck, 2017 Ark. App. 311, at 8–9, 521 S.W.3d 543, 547–48 (quoting Nelson v.

Nelson, 2016 Ark. App. 416, at 6–7, 501 S.W.3d 875, 880).




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       Melissa argues that the trial court abused its discretion by applying a public-policy

argument concerning marriage to disabled persons in order to justify refusal of a permanent

alimony award. She contends that the trial court’s decision was based on the court’s wanting

to prevent those who marry disabled persons in the future from being “on the hook” to

support their disabled spouses, regardless of promises made and reliance on those promises

and the passing of years.

       Melissa emphasizes that the purpose of alimony is to rectify any economic imbalance

in the earning power and standard of living of the parties in light of the particular facts of

the case. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). The primary factors to be

considered are the financial need of one spouse and the ability of the other spouse to pay.

Foster v. Foster, 2016 Ark. 456, 506 S.W.3d 808; Jones v. Jones, 2014 Ark. App. 614, 447

S.W.3d 599. Melissa also cites Franklin, supra, mentioned in the trial court’s ruling from the

bench, which lists possible factors for courts to consider in the award of alimony:

       Among [the factors] are the financial circumstances of both parties, the financial needs
       and obligations of both the couple’s past standard of living, the value of jointly owned
       property, the amount and nature of the income, both current and anticipated, of
       both husband and wife, the extent and nature of the resources and assets of each that
       is “spendable,” the amounts which, after entry of the decree, will be available to each
       of the parties for the payment of living expenses, the earning ability and capacity of
       both husband and wife, property awarded or given to one of the parties, either by
       the court or the other party, the disposition made of the homestead or jointly owned
       property, the condition of health and medical needs of both husband and wife, the
       relative fault of the parties and their conduct, both before and after separation, in
       relation to the marital status, to each other and to the property of one or the other
       or both, the duration of the marriage and even the amount of child support.

Franklin, 25 Ark. App. at 290–91, 758 S.W.2d at 8 (quoting Boyles v. Boyles, 268 Ark. 120,

124–25, 594 S.W.2d 17, 20 (1980)). However, Melissa contends that these are secondary




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factors, and the primary factors are the financial needs of one spouse and the other spouse’s

ability to pay. Foster, supra.

       Melissa argues that Jason demonstrated that he was able to contribute $1000 to $2000

a month for her living expenses and that she has no independent income. She contends

that he has the means to continue to support his disabled wife and that she sorely needs the

support. She maintains that the secondary factors listed in Franklin, supra, support her

position. Melissa argues that the trial court abused its discretion in making the alimony

decision, and if the ruling were allowed to stand, it would be a true signal to all disabled

persons that, if their spouses decide to abandon them in their need, the courts simply will

not assist them. She maintains that the decision here was not made given the facts of this

particular case; rather, the trial court applied a broad policy statement in the case of future

marriages of the disabled.

       In response, Jason claims that the trial court’s order should be affirmed. We agree.

In Smithson v. Smithson, 2014 Ark. App. 340, 436 S.W.3d 491, which contains similar facts

to the case at bar, the trial court denied permanent alimony to the wife after a short marriage

during which the wife did not work and had been granted Social Security disability benefits

and the husband earned a good income. The trial court granted alimony of $1000 a month

for one year. Id. On appeal, this court stated,

       A review of the overall distribution here evidences that appellant was awarded
       $10,000 cash from the nonmarital home’s equity, appellant was awarded her marital
       portion of appellee’s retirement and investment accounts, she was relieved of
       significant marital debt, appellee was ordered to pay half of appellant’s accrued rental
       indebtedness and $2000 of appellant’s attorney fees, and both parties were relatively
       young and were married a relatively short period of time. Rectification of economic
       imbalances is not necessarily appropriate when the marriage relationship did not
       influence the imbalances in earning capacity. Evtimov v. Milanova, 2009 Ark. App.

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       208, 300 S.W.3d 110. That appellee came into the marriage, and left the marriage,
       with significantly greater earning capacity does not automatically equate to a long-
       term sizable alimony award. An award of alimony, if one is awarded at all, is measured
       by the particular facts and circumstances of the parties before the trial court. We are
       not to substitute our judgment for that of the trial court; we are to determine only
       whether the alimony decision is reasonable under the circumstances. Whitworth v.
       Whitworth, 2009 Ark. App. 410, 319 S.W.3d 269. On the record presented for our
       de novo review, we are not left with a distinct and firm impression that a mistake
       was made in the award of alimony.

Id. at 8–9, 436 S.W.3d at 496–97. 1

       In Evtimov, supra, which was relied on by the Smithson court, this court affirmed the

trial court’s denial of alimony to the husband and rejected the husband’s claim that the only

consideration in determining whether to award alimony should be the difference in the

parties’ income and their future earning capacity. This court noted that the trial court had

divided the wife’s marital retirement asset and had made it a present distribution to the

husband, as well as placing the marital debt on the wife, stating, “Alimony and property

divisions are complementary devices that a trial judge employs to make the dissolution of a

marriage as equitable as possible.” Id. at 11, 300 S.W.3d at 117.

       As the trial court noted, Melissa leaves the marriage in the same or better position

than when she entered it. She gained an increase in the equity of her nonmarital house and

remains, as she was upon entering the marriage, unemployed. Thus, as Jason contends, even

though the trial court did consider its own public-policy reasoning—that a person should

not be required to support a disabled ex-spouse for life when the disability predated the


       1
       In contrast, see cases in which alimony was awarded because the marriage was the
cause of the economic imbalance and earning capacity of the parties. E.g., Murphy v.
Murphy, 302 Ark. 157, 787 S.W.2d 684 (1990); Stuart v. Stuart, 2012 Ark. App. 458, 422
S.W.3d 147; Hiett v. Hiett, 86 Ark. App. 31, 158 S.W.3d 720 (2004); Anderson v. Anderson,
60 Ark. App. 221, 963 S.W.2d 604 (1998).

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marriage because the requirement may discourage marriage—public policy was not the trial

court’s sole consideration. Further, even though we find no statute or caselaw to support

this “so called” public policy, the trial court also stated in its decree that rehabilitative

alimony was not appropriate because it did not appear that rehabilitation of Melissa’s

disability was likely. The trial court also considered that marital funds had been used to pay

down the debt on Melissa’s house and that she was retaining the $9000 benefit.

Accordingly, even considering the trial court’s unsupported public-policy reasoning, we

hold that there was no abuse of discretion because the trial court did not act improvidently

or thoughtlessly, without due consideration.

       Affirmed.

       VIRDEN and BROWN, JJ., agree.

       Satterfield Law Firm, by: Cynthia S. Moody, for appellant.

       Debra J. Reece, for appellee.




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