Berry v. Berry
2017 Ark. App. 145
Ark. Ct. App.2017Background
- Joseph and Dana Berry divorced in September 2013 after a 29‑year marriage; decree awarded Dana the marital home and substantial assets and ordered Joseph to pay alimony: $4,000/month for 15 years, then $3,000/month until remarriage or death.
- Both parties received significant asset allocations; Joseph retained a profitable accounting business; Dana received cash, personal property, and monthly installments from the business.
- In August 2015 Joseph moved to modify/terminate alimony, asserting Dana had inherited about $448,000 from her mother and therefore no longer needed support.
- At the March 2016 hearing, Dana (age 56) testified to steady employment (~$78–83k/year), ongoing home and child/education expenses, and an approximate net worth (post‑inheritance) the court found to be ~$735,000.
- Joseph claimed Dana’s net worth and income were higher and argued the inheritance and her increased retirement funding eliminated her need for alimony; he contended the inheritance was unanticipated and material.
- The trial court found the inheritance had been contemplated at the time of the divorce, was not an unanticipated material change, and denied modification; Joseph appealed.
Issues
| Issue | Joseph's Argument | Dana's Argument | Held |
|---|---|---|---|
| Whether Dana’s inheritance is a material change of circumstances warranting termination/modification of alimony | The inheritance is a substantial, unanticipated change removing Dana’s need for alimony | The original award considered multiple factors; the inheritance was contemplated and does not eliminate need | Inheritance was contemplated at divorce; not a material, unanticipated change — modification denied |
| Whether trial court clearly erred in factual findings (net worth/income comparisons) | Court miscredited evidence; Dana’s net worth and income were higher than found | Court credited testimony and exhibits showing more modest figures for Dana | No clear error; credibility determinations upheld |
| Whether Dana’s income changed post‑divorce so as to negate need for support | Dana’s increased retirement funding and inheritance show she can meet needs and save | Dana’s salary is steady with little probability of marked increase; expenses remain (home upkeep, child support/education) | Court reasonably found Dana’s income essentially unchanged; no basis to modify |
| Whether appellate record supports reversal | Joseph failed to supply a record proving trial‑court error regarding what was known at divorce | Trial court’s finding that inheritance was contemplated is supported and appellant bears record burden | Appellant failed to meet burden; affirmance required |
Key Cases Cited
- Hunter v. Haunert, 101 Ark. App. 93, 270 S.W.3d 339 (appellate review standard in domestic‑relations cases)
- Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (alimony modification requires significant, material change)
- Johnson v. Cotton‑Johnson, 88 Ark. App. 67, 194 S.W.3d 806 (factors for making/changing alimony awards)
- Hass v. Hass, 80 Ark. App. 408, 97 S.W.3d 424 (changes contemplated at time of award are not material)
- Dodge v. Lee, 352 Ark. 235, 100 S.W.3d 707 (appellant’s burden to supply adequate record)
- Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (deference to trial court on credibility and factual findings)
- Brave v. Brave, 2014 Ark. 175, 433 S.W.3d 227 (trial court discretion to fashion reasonable alimony)