Burns v. Burns
383 S.W.3d 458
Ark. Ct. App.2011Background
- Rebecca Burns and Terry Burns married in 1984 and separated in 2005 (per opinion); divorce proceedings began in 2008 with a 2010 decree (marital residence and property to be sold; various property divisions and alimony set at trial).
- The 2010 decree ordered Dr. Burns to pay Mrs. Burns $81,194 equity in the Hardy residence, one-fourth of a Kubota tractor, equal division of retirement accounts, continued payment of three credit-card balances from sale proceeds, and spousal support of $2,500 monthly, with attorney’s fees reserved.
- An April 2, 2010 modification instructed Dr. Burns to assume debt on two vehicles and that Mrs. Burns waived interest in the Kubota; medical costs were placed to be paid from marital-property proceeds.
- At a May 17, 2010 letter, the court found: parties separated ~2005, Mrs. Burns has not worked significant during marriage but may be employable, Mrs. Burns has substantial marital-home equity, she has about $200,000 in cash, and Dr. Burns’s average income in recent years was $143,500.
- The court awarded alimony of $2,750 per month and $3,500 in Mrs. Burns’s attorney’s fees; Mrs. Burns appealed arguing the alimony findings were clearly erroneous and the fee award was inappropriate.
- The appellate court reversed the alimony award as clearly erroneous and remanded; the attorney’s-fees award was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Alimony amount: whether the award was an abuse of discretion | Burns argues the findings were clearly erroneous and the alimony amount was unsupported. | Burns contends the trial court reasonably considered need and ability to pay. | Alimony reversed and remanded for reconsideration. |
| Attorney’s fees: whether $3,500 is an abuse of discretion | Burns contends the fee award was improper given the evidence of costs. | Burns asserts the award was not an abuse of discretion. | Attorney’s fees affirmed. |
Key Cases Cited
- Harvey v. Harvey, 295 Ark. 102 (Ark. 1988) (alimony factors and discretionary standard)
- Rachel v. Rachel, 294 Ark. 110 (Ark. 1987) (trial court discretion in alimony and need/ability to pay)
- Bracken v. Bracken, 302 Ark. 103 (Ark. 1990) (need and ability to pay; financial circumstances)
- Hiett v. Hiett, 86 Ark.App. 31 (Ark. App. 2004) (consider earning ability and assets in alimony)
- Davis v. Davis, 79 Ark. App. 178 (Ark. App. 2002) (total income of both parties considered in alimony)