Johnson v. Johnson
Johnson v. Johnson
Opinion of the Court
Phyllis Johnson appeals from the Garland County Circuit Court order denying her request for alimony. On appeal, Phyllis argues that the circuit court failed to consider testimony and evidence regarding her need for alimony and her ex-husband's ability to pay. We affirm.
On February 16, 2017, after fifty-eight years of marriage, Phyllis Johnson filed a complaint for divorce from bed and board against Walter Johnson. Later, after Walter counterclaimed for divorce, Phyllis amended her complaint to a claim for absolute divorce.
The parties negotiated a partial settlement agreement that was entered on September 19, 2017. Phyllis received a total value of assets of $869,715 that included a Merrill Lynch IRA, a Merrill Lynch Roth IRA, three Bank of America accounts, the cash value of an insurance policy, the debt-free marital home and contents, a subdivision lot, her car, a pontoon boat, one-half of a State Farm insurance policy, and one-half of the "Harris" bank account. Walter received $827,193 in assets that included two Merrill Lynch IRA accounts, three Merrill Lynch "kids" accounts, an Arvest account, the cash value of the "MTL" insurance policy, the cash value of the Northwestern Mutual Whole Life policy minus the costs of funding the State Life policy,
The circuit court held a bench trial regarding the issue of alimony. At the trial, Phyllis testified that on October 31, 2015, Walter left her and began living with his girlfriend in her home where he does not pay rent or utilities. Phyllis testified that she had been a homemaker, a wife, and a mother from the time she and Walter married in 1957 until their separation. When the children left the home, Phyllis attended college part time and earned a bachelor's degree in accounting. Phyllis explained that she did not go to school with the intent of making a career out of her degree but simply to "have at least as much education as [her] children." In 1995, Phyllis obtained an associate degree in interior design and worked part time on *913her own and for an interior-design firm. Phyllis testified that for the four to five years that she worked, she earned $20 an hour and divided her income into thirds: one-third for grandchildren, one-third for taxes, and one-third for spending money. Later Phyllis obtained certification as a Feldenkrais instructor, but she had not been "very successful" in this endeavor and had lost money on it. Phyllis testified that she receives $725 per month in social security benefits, which was her only income, and Walter receives $2,049 per month in social security benefits. Phyllis stated that she understood that she was eligible for an increase in the amount of social security benefits she receives. Phyllis testified that during the marriage, she used her inheritance to purchase and remodel their marital home, which she would not have done if she had known that Walter was going to leave her.
Phyllis submitted an affidavit of financial means showing $4,950.23 in monthly expenses, and she requested $4,000 in alimony to maintain her lifestyle. Phyllis asserted that Walter received a far greater monthly income, averaging around $8,725 according to the income tax returns from 2012 to 2016. Phyllis also argued that Walter had fewer expenses than she did and that he owned a condo in Chicago.
Walter testified that he was still paying the $800-a-month mortgage (plus $400 monthly POA due) on the Chicago condo and still owed around $52,000 on it. He explained that he planned to sell the condo and live off the proceeds. Walter described Phyllis's assets as "basically ... non-taxable" and estimated that "the balance would be $100,000 maybe $150,000 in her favor considering the tax vulnerability on the property items that are on my list." Walter testified that while they were married, their monthly expenses were in excess of $5,000 and that Phyllis's estimation of monthly expenses was reasonable. Walter explained that he did not think he and his girlfriend were going to break up, but if they did, he would have nowhere to live and would have to pay rent or a mortgage and utilities and related expenses. Walter did not provide a monthly budget, but he had previously stated that his monthly household expenses were around $840. At the hearing, he described various monthly expenses totaling around $2,600 including the condominium-related payments. He asserted that if he were required to pay the alimony Phyllis requested, "it would be skimpy for me," and he would have nothing left to leave the grandchildren.
After the hearing, the circuit court entered an order in which it found that the parties were married in 1957, Phyllis was seventy-eight years old, Walter was eighty-five years old, and they were both in good health. The circuit court found that the parties entered into a partial settlement agreement that divided their marital assets worth $1,696,908 and that Phyllis received $42,522 more than Walter. The circuit court found that each party received social security benefits but that neither party received income from a retirement plan or pension. The circuit court denied Phyllis's request for alimony, finding that "Plaintiff does not have a financial need for alimony. She negotiated a settlement with the Defendant giving her a greater amount of assets than Defendant and taking assets she wanted albeit less income producing than his."
Phyllis filed a timely notice of appeal. On appeal, Phyllis argues that the circuit court abused its discretion by not considering certain relevant factors in its denial of alimony.
Divorce cases are reviewed de novo. Webb v. Webb ,
*914Mitchell v. Mitchell ,
The division of marital property and an award of alimony are complementary devices that may be utilized by the circuit court to make the dissolution of a marriage financially equitable. Webb , supra. The purpose of alimony is to rectify the economic imbalances in earning power and standard of living in light of the particular facts of each case. Kuchmas v. Kuchmas ,
Phyllis cites Halk v. Halk ,
[a]ppellant's uncontradicted testimony was that for the duration of the marriage, she did not work at the insistence of appellee. Appellant indicated in her financial-means affidavit that she has no income. Furthermore, appellant has a medical condition that has resulted in substantial ongoing medical expenses. As noted above, the primary purpose of alimony is to rectify any imbalance in the parties' earning power and standard of living. Under the facts of this case, the denial of alimony to appellant was an abuse of discretion.
Id. at 4.
Here, the circuit court's assessment that Phyllis did not require alimony is supported by the evidence and testimony: Phyllis is in good health, does not have large medical expenses, receives social security benefits with the potential for an increased amount, and negotiated a settlement agreement for more than half of the marital assets.
Another important difference between Halk and the instant case is the circuit court's exercise of its discretion. In Halk , we found that "[i]n the decree, the circuit court simply denied appellant's request for alimony without any further explanation. Our review of the record indicates several factors that we are left to conclude were overlooked by the circuit court in deciding to deny appellant's request for alimony." Id. at 3-4. In the instant case, the circuit *915court clearly considered the length of the marriage, the parties' age and relative health, the division of the property and the assets' earning potential, each party's monthly income, and Phyllis's financial need. We recently held in Trucks v. Trucks ,
Although the facts of this case would arguably support the denial of an award of alimony if that had occurred, it is not our duty under our standard of review to simply substitute our judgment for that of the circuit court, which was in a far better position to judge the credibility of the witnesses. It is instead our duty to determine if the circuit court abused its discretion in making its findings regarding the award of alimony.
We cannot say that the circuit court abused its discretion in finding that Phyllis had no financial need for alimony.
Phyllis also argues that the circuit court erroneously failed to consider Walter's ability to pay alimony, specifically, she argues that the circuit court failed to consider the fact that Walter's girlfriend paid the mortgage and the utilities for the house in which they lived. She argues that in Craig v. Craig ,
Though we might not have come to the same conclusion as the circuit court, under the specific facts of this case we find no error in the circuit court's determination that Phyllis does not have a financial need for alimony. An award of alimony, if one is awarded at all, is measured by the particular facts and circumstances of the parties before the circuit court. Whitworth v. Whitworth ,
Affirmed.
Abramson and Hixson, JJ., agree.
During the marriage, the parties purchased a joint insurance policy intended to provide long-term care for both parties. The parties agreed that Walter would withdraw $185,000 from the Northwestern Mutual account and deposit the money into an interest-bearing account in both parties' names. The money would be used to pay the premiums on the long-term-care policy, and the parties would retain joint ownership of the policy.
On appeal, both Phyllis and Walter greatly expand the argument regarding Walter's deferred payment of income taxes. Through their testimony regarding the tax liability of the parties' assets, both parties peripherally touched on the issue of whether Walter was "consuming his estate" by making mandatory withdrawals or whether he was generating more income by reinvesting assets. The issue was not presented to the circuit court, and the record was not developed for our de novo review. This court will not consider arguments that are raised for the first time on appeal. See Taylor v. Taylor ,
Reference
- Full Case Name
- Phyllis JOHNSON v. Walter L. JOHNSON
- Cited By
- 4 cases
- Status
- Published