*1 in- lаwfully could the search scope the vehicle within containers clude Id. marijuana. contain
could case, is no there instant
In the speci for the items search
dispute that the ongoing when was in the warrant
fied time, they At the safe.
police opened listed in the the items
had found some Moreover, large the safe
warrant. drugs, drug parapherna contain
enough to handgun described the second
lia and the officers The fact that
the informant. drugs some discovered already
had them preclude did not
drug paraphernalia drugs continuing to search
from hand and the second
drug paraphernalia to an would lead otherwise
gun. To 112hold have to would search
absurd result —the discovery of initial upon the
cease It was paraphernalia.
drugs drug necessary po for the reasonably
therefore Thus, conclude we
lice to the safe. search the safe was search of the officers’ authorized of the search scope
within the warrant, court erred and the circuit
by the opened could not be that the safe ruling In view of our warrant.
without a second need not address point, we
holding on arguments. other State’s and remanded.
Reversed App. EVTIMOV, Appellant, L.
Ivan MILANOVA, Appellee.
Mariofanna G.
No. 08-36. CA of Arkansas. Appeals
Court 18, 2009.
March
HI *3 Firm, P.A., by: Lisa Jones- Abies Law Rock, Ables, appellant. Little for Clark, Betty by: J. Friday, Eldredge & Rock, appellee. Hardy, Little BAKER, Judge. KAREN R. | Appellant his de- appeals Ivan Evtimov Mariofanna of divorce from cree points three of error: Gueorgieva asserting (1) granting appel- The court erred trial appellant presented lee a divorce where residency regarding evidence insufficient (2) erred in separation; court refusing de- in income significant difference spite on future em- limitation erred The trial court ployment; proper- the marital failing equally divide find no error and ty parties. We affirm.
Appellant Ivan Evtimov and married in Gueorgieva were Mariofanna or about December 2001. Bulgaria on H3 married, Shortly they after were cou- assets. She added that appellant had Rock, Arkansas, ple moved to Little where many private teachers in addition to the appellee began working University for the English courses he took at the University. Appellee of Arkansas at Rock. filed When he was enrolled in English classes, 12Little 27, 2006, for a divorce on March he would ask her for help writing essays hearing July was held on 2007. Appel- however, and with grammar; despite the divorce; lant did not challenge the howev- fact that helped she him “a lot” and made er, he contended that he should receive a herself available to assist him in learning portion of the tax refund from the last the language, she could not characterize *4 year marriage, sought equity in the him as “eager” to learn English lan- home, marital requested spousal sup- guage. port. At the hearing, appellant a variety listed parties In purchased Toyota a of ideas that either appellee or he had Camry, which at the time of the hearing suggested as avenues of income appel- for in appellant’s possession was and worth lant. Appellant contended that he was $11,000. approximately Appellee testified unable to work for two months of those that the parties purchased a house years of marriage due to an infection in his that the purchase initial of the home was leg. Appellant aрpellee’s contradicted tes- $324,900, parties and that the slight- owed timony that he did not contribute stat- ly less on the house than it worth. was ing that he gave her, sometimes money to testimony The and evidence reflected many but rejected times she receiving appellee had retirement accounts totaling money from him. disputed He also her $92,194 $32,700 and marital totaling debts testimony that he destroyed had excluding the home mortgage. house; instead, he asserted that he was
Appellee attempting also appellant testified that maintain the by doing house yard and electrical nothing contributed to her work to using education as avoid her she maintenance position people. received her prior par- to the As for the allega- She, however, marriage. ties’ tions of his stealing, categorically had contrib- he de- education, uted to nied that he his a stole from spending great explana- her. His money many deal of on tion was that he language using and busi- was her checking ness account during pay courses for him some marriage. expenses. of his Despite appellee While expenditures opined her that appellant and efforts to capable of appellant working, appellant assist in obtaining satisfactory insisted that work, expectations and her his limitations with the English he would language contribute to the restricted his marriage financially, earning capacity. he In his affi- means, continued to refuse to In davit of financial work. addition he indicated to his failure to he netted biweekly expenses contribute to the marital with $339.41 assets, month. explained appellant $1070 assets, had wasted marital particularly The trial court appellant found that had destruction to the marital home and incur- not contributed to the marital household. ring marital explainеd debt. She also |4On appeal, appellant challenge does not appellant had her checking used account Instead, finding. challenges authorization, without her asserting that trial court’s denial of alimony arguing that stealing he was from her. it deny was error to requested alimony his | sAppeIlee’s daughter appel- reaffirmed upon based the difference in income and lant’s lack of contribution to future earning capacity. residency must be corroborated court not award ali- Proof of the trial did
While regardless of the pay appel- every action for divorcе mony, he did order Ann. to one-half of her admission. Ark.Code equal an amount defendant’s lant 9-12-306(b) fund, (Repl.2006); Hodges, supra. minus one-half the value retirement requiring one-half of the rule corrobo purpose consumer debt and The couple’s of the appellant, prevent procuring car ration di of the awarded the value collusion, monthly when it is payment though form a vorces collusion, the corrob sixty plain months at six that there is no amount of $470 only to be interest. The distribution as- oration of residence needs percent $24,000, supra. and the slight. Hodges, sets to totaled placed payment court all of the debt obli- parties’ residence evidence gation upon appellee. sufficiently corroborates residence W-2 appellee’s case. The record contains Residency 2002-2006 with each list- statements from first of error Appellant’s assertion employ- ing Little Rock address as *5 granting that the trial court erred in is residence, the notarized deed to the ee’s appellant pre a divorce where 2004, a letter house which was filed in and regarding sented insufficient evidence resi Policy of Title In- enclosing the “Owner’s dency a separation. and To obtain di appellee’s Little Rock ad- surance” sent to vorce, prove residency must in plaintiff 7, April and dated 2005. As for dress by the state either herself or defen separation, evidence of the a witness for sixty days before the commence dant appellant that lived for appellee testified residency ment of the action in the and himself, specifi- and eight six to months full the final state for three months before cally they separate that had lived and of judgment granting decree divorce. filing The apart petition. since the of 9-12-307(a)(l)(A) (Repl. Ann. Ark.Code 27, petition was filed on March 2006. 2006). alleged parties four that Paragraph living separate apart had and since been Residency proven must be and 9, 2006, January and admitted every corroborated in instance. Ark.Code allegation Accordingly, in his answer. 12—306(c)(1) §Ann. (Repl.2006); Hodges 9— finding not err in the trial court did resi- 250, Hodges, Ark.App. v. 27 770 S.W.2d adequate |fievidence dency separa- of (1989). 164 If a trial court renders tion. obtaining divorce decree without sufficient proof residency, and corroboration of Alimony jurisdic decree has been entered without Araneda, Ark.App. v. the trial court err in tion. Araneda 48 Neither did 236, (1995). alimony. A trial recognize refusing judge’s 894 146 We to award that, alimony a matter that plain regarding where it is there is no decision is collusion, and will not residency corroboration of need lies "withinhis sound discretion But, only Hodges, supra. appeal be reversed on absent an abuse of slight. Hiett, token, v. residency required same for the that discretion. See Hiett 86 (2004); and, 31, period jurisdictional 720 Dela dealing Ark.App. as it 158 S.W.3d 419, Delacey, does with the v. 155 power right cey of the trial (2004). act, court to of S.W.3d 701 An abuse of discretion corroborating evidence res exercised, idency improvidently speculative vague should not be means discretion Araneda, i.e., without scope. supra. thoughtlessly Araneda v. exercised
H5 Bell appellant’s argument due Southwestern Yel consideration. Pages, Enterprises, v. Pipkin
low
Inc.
pay alimony
should
because she can due to
(2004)
402,
Inc.,
Ark.
We cannot trial in that this judge denying ap abused his discretion distribution addressed appellant’s pellant’s alimony. for request The crux of for judge immediate need cash.1 The trial Despite failing grant alimony. 1. the trial court's immediate distribu- in Neither dissent appellant’s appellee's of tion retire- a sup- interest cites case with similarities to factual interest, Furthermore, accruing alimony. port ment and award of the the of dis- award senting judges assert that this supporting court should neither dissent cites a case the find that the prоviding appellant monthly trial court abused its discretion contention that
116
pursue
the
allowed
appellant less than
home
found
specifically
also
her
provided
credentials that
him much
obtain the
not afford
forthcoming and did
Rectifica-
higher earning capacity.
and income issues. with a
on the debt
credibility
not
is
neces-
tion
economic imbalances
decision, we are mindful
reaching
In
our
marriage
the
rela-
when
sarily appropriate
not
alimony is
mandato
the award of
not
the imbalances
tionship did
influence
discretionary,
is instead
ry, but
earning capacity.
regarding any suсh
decision
trial court’s
not
reversed absent
will
be
Furthermore,
in the context of
Powell,
82
Powell
abuse of discretion.
it is clear that
alimony,
rehabilitative
290
Dis
S.W.3d
living to maintained
is
standard
flexibility
are critical to
cretion
marriage.
Our
achieved
standard
to make
ability
court’s
dissolution
trial
initially recognized rehabilitative al
courts
marriage
possible.
as
1990, when this court considered
imony in
Mitchell,
in Mitchell v.
explained
weAs
Bolan,
ArkApp.
Bolan v.
(1998),
nei
964 S.W.2d
ArkApp.
Rehabilitative
court,
court, has
supreme
ther this
nor
short,
a
for
payable
is
reduce the amount of
attempted
ever
Bolan,
specified duratiоn
time. See
Pre
alimony to a mathematical formula.
1,n.
117 Likewise, not spouse where the has been we find no error in long period work force for a of time. the trial court’s division of marital proper ty. The judge’s distribution of prop An award of rehabilitative is permit spouses erty former balances in designed also favor with the dеvelop free property their own lives from distribution and the allocation of obligations to each other. Rehabilitative Alimony property debt. divisions are “bridge-the-gap” is a measure complementary devices that a trial judge recipient spouse making to aid employs to make the dissolution of a mar being transition from married life to sin- riage equitable possible. See Davis gle. Davis, 178, v. 79 (2002). purposes Other judge’s rehabilitative A decision to allocate debt following: intended to serve include the to a particular party or in a particular manner a question of fact and will not give spouse paying predict- some appeal reversed on ability concerning obligations, clearly financial unless errone Ellis, 173, prevent possible appear- further court ous. Ellis v. 75 Ark.App. 57 (2001). by permitting ances the court to take 220 S.W.3d The allocation of debt reasonably into consideration foresee- is an essential issue to be resolved in a changes able in the recipient spouse’s case, id., divorce and the overall distribu encourage recipient circumstances to property tion of must be considered in that spouse employment to find or comрlete allocation. See Boxley Boxley, 77 Ark. training leading employ- education or (2002). App. 19 S.W.3d ment. case, In this the division of (footnotes
AMJUR omit- DIVORCE property any inequities addressed without ted). alimony. award of This court reviews say We cannot the trial court division of marital cases de novo. abused its in denying alimony discretion Glover, 4 Ark.App. Glover v. challenge when does not the trial The trial S.W.2d court has finding court’s the appellant provided no powers broad to distribute or contribution to the marital assets and evi- der to achieve an distribution. dence merely depleted indicated that he Keathley Keathley, ArkApp. Although resources. he asserted The overriding pur that his earning capacity was limited *8 pose of Arkansas Code Annotated section skills, poor English his the evidence estab- | i2(Repl.20Q2) 9-12-315 is to enable the appellee provided lished that ample oppor- property court to make a division of that is tunity language for him to learn the equitable specific fair and under the cir through private tutoring university cumstances. Id. Arkansas Annotat Code classes. professed Whether ed section that marital provides 9-12-315 | uinability effectively to communicate in property еqually is to be divided unless it English was a result of disinterest or ina- inequitable Harvey would be to do so. v. bility, nothing in the record indicates how 102, 89 Harvey, 295 747 S.W.2d improve English further classes would his (1988). property unequal If the is divided earning pow- skills in order to increase his Furthermore, ly, give er. then the court must reasons for its testimony there was no explaining how division in the Ann. 9- English his limited skills order. Ark.Code 12-315(a)(l)(B) earning (Repl.2002); Harvey would affect his v. capacity should country. return to his Harvey, supra. provides home The code also 118 HART, J., may dissenting. when the court consider
list of factors Ann. unequal division. Ark.Code choosing today’s majority opinion, Prior to our 12—815(a)(1)(A)(i)—(ix) (Repl.2002). § 9— lаw was so well settled as to be axiomatic This list is not exhaustive. property and the division of Annotated Arkansas Code “complimentary award of were de mathe compel does not section 9-12-315 judge employs vices that a trial make in the distribution of precision matical marriage equitable the dissolution of a simply requires that marital property; it (Emphasis supplied.) Har 'possible.” property equitably. be distributed Cre 308, vey Harvey, v. 298 Ark. 766 S.W.2d Creson, 41, 917 ArkApp. son v. 53 (1989); 120, Boyles Boyles, 935 v. 268 Ark. (1996). 553 The trial court S.W.2d (1980); Ferguson Fergu 594 17 v. S.W.2d flexibility ap vested with a measure of 585, (1971); son, 251 Ark. 473 869 S.W.2d portioning the total assets held Scott, 120, Ark.App. 161 Scott v. 86 S.W.3d divorcе, upon marital estate and the criti Cole, (2004); 47, Ark.App. 307 Cole 82 are inquiry cal is how the total assets (2003): Davis, 310 Davis v. 79 110 S.W.3d added.) (Emphasis These divided. Id. 178, (2002); 447 Ark.App. 84 S.W.3d statute, include powers, broad under Means, ArkApp. Mearns v. of all in divorce distribution (overruled on another S.W.2d non-marital, cases, marital and in order law); Tortorich, point of Tortorich v. to achieve an distribution. Id. 114, 902 Ark.App. case, presented Under the facts this majority Now the has sanctioned trial we find no error the trial court’s distri unequal property courts to use settlements property. judge’s bution of A trial un and the denial of as a one-two division of marital will not equal punch. clearly it erroneous. reversed unless Cole, Cole v. 201 S.W.3d majority It is not clear where the has The trial court in this case acquired authority to overrule cases specifically any found that sale of the mari court, supreme from our but I note that deficiency tal residence would result in a hitherto, it pri- was settled law that which could not contribute. mary |14in factors to be considered | ^accordingly The trial court awarded the were the needs of the residence, was deeded to which spouse requesting alimony and the other only, her name as her sole and See, spouse’s ability pay. e.g., Mulling separate property, free and clear of Mulling, 323 Ark. by appellant. claims None of the debt (1996). It was uncontroverted at the hear- obligation for the residence allocated ing Ms. Milanova’s financial resources appellant. may have While result many were than Mr. greater times Evti- distribution, ed in unequal we cannot mov’s, jobs, despite working two say that the division of the total assets and *9 struggling get by. majori- he was to clearly debt allocation was erroneous and ty’s ratification of the trial court’s so-called inequitable appellant. toward finding that “appellant providеd no contri- Affirmed. justification bution to marital no assets” is denying alimony for to Mr. Evtimov. VAUGHT, C.J., MARSHALL and HENRY, JJ., agree. was, prior today’s it at to Again, least ROBBINS, JJ., opinion, purpose
HART black-letter law that the and dissent.
H9 alimony rectify, prescribed by insofar as is rea- course law of is to and is not to sonably frequent the economic possible, give effect to the will of the but judge, earning power and stan- of A liberty imbalance the that the law.... privilege or of living dard of the divorced husband and to decide what is fair equitable and un- See, Mitchell, e.g., peculiar wife. Mitchell v. the der circumstances of the case, I Ark.App. particular guided by spirit 964 S.W.2d find the and majority irоnic that on Mitch- principles it the relies of the law. proposition
ell the that it need not (6th 1990). Dictionary Black’s Law ed. of alimony reduce the amount to a mathe- case, Accordingly, in this the trial court In the place, matical formula. first that is had to make authority a court precisely appeals what the of did in lieu alimony, Ferguson, supra, award of importantly, that case.2 But more we are or could compensate award a not|ifiin disagreement over dollar the exact distribution, for an party unequal property alimony, amount of but rather whether it Harvey, supra, but not both deny alimony at should be all. I submit that awarded give Mr. proper Evtimov less marital calculation, mathematically certain or That ty. clearly would be an erroneous otherwise, it was error not to award alimo- law, application of which is a manifest ny. of abuse discretion. See Hall v. Kings Dist., land 56 Ark.App. School
While I concede that the decision to and divide marital judge, is left the discretion of the trial I Affirming manifestly incorrect trial majority lament has chosen to justified court decision by major is not “largess.” “discretion” as Perhaps define ity’s finding. resort to fact I am not sure majority it is time that the be reminded objeсtionable: which is the they more judicial discretion made a mistake law in they of endeav all, Rickett, means discretion bounded rules and ored to do it at O’Dell v. law, (hold principles arbitrary, of and not ca- pricious, or unrestrained. It is not the ing appellate court will not find a whim, indulgence judicial of but the ex- fact that was not found below as that judicial judgment, ercise of based on be an into the province would intrusion of court), guided by facts and law or they or that numer made just |1(iwhen proper they decision what un- mistakes fact ous of made legal findings poorly. der circumstances. It is dis- these so Regarding in disсerning point, majority cretion be exercised latter states Ms. Mitchell, quote following just daughter. 2. I from for herself and her At trial she my point: illustrate expenses totaling submitted a list $3,700.00 per month. This included antici- gross [Mr. income at the time of Mitchell’s] pated expenses future which the chancellor $129,000.00 approximately per trial was consider, leaving declined total year pay with net take-home $2,800.00 monthly expenses for as the Mrs. $83,000.00. Mrs. Mitchell has a master’s considering Mitchell and child.... After degree in food nutrition has factors, appropriate all the we conclude hospital worked as a dieticiаn. Since the that the awarded amount parties' daughter, birth Mrs. Mitchell circumstances, excessive. Under these stayed approxi- has at home and earned review, $1,300.00 may on de novo we set the amount mately per year. time At the *10 alimony.... of the we During the In case at bar find employed. divorce she was not divorce, $2,100.00 alimony per pendency the the that be set at of Mitchell should Mrs. $3,000.00 per support received month as month. breathtaking the ma- “position” prior legerdemain, to her With obtained Milanova which, they opine without to the fact that marriage, jority attempts obscure the еquita authority, negates “any statutory that requires of Mr. equity citation and law in the services ble claim” that of equal receive both an share the Evtimov pursue to and ob home allowed see Arkansas Code An- property, marital provided that her with the credentials tain (Repl.2008), 9-12-315 and notated section find capacity. This fact higher earning Annotated alimony, see Arkansas Code argument an that Mr. does not counter ing (Repl.2008), by character- section 9-12-312 makes, I and while am loathe Evtimov of marital izing unequal the distribution com practice, in I feel engage the same that something into “resembles” point that while Milanova pelled out Ms. It alimony. as- award of rehabilitative prior her mar her credentials obtained patently unsound decision to cribes while was riage, her career flourished she Mr. recognition the trial court’s of Evti- matrimony. of salutary state for cash.” It mov’s “immediate need finding majority’s No less infirm is the Evtimov be obvious that Mr. would should Mr. Evtimov somehow benefitted cash” not have an “immediate need for if the having pay portion from not alimony. Again, we must con- received the marital indebtedness on residence primary front law that the that black-letter awarded her sole Ms. Milanova was alimony for an award of considerations is all furnish- property, not to mention the spouse the requesting alimony the needs of its 3014 feet ings square contained within See, spouse’s ability pay. the other and many the fact that she was saved the e.g., Mulling Mulling, supra. fact moving expenses in if thousands of dollars given that Mr. Evtimov was distribution of required premises. was to vacate the she equal proper- his than share of marital less in finding light particularly This curious ty monthly installments is rendered no Boyles supra, of the fact v. Boyles, by majority’s the conclu- less unpalatable that a it is one of the enumerated factors Ms. Milanova incurred some sion that ad- deciding trial court consider in should consequence. conclusion verse tax This In- whether should awarded.3 by or our tax supported neither the record deed, promulgated the factor only laws. Boyles weighs against an award of Despite majority’s the efforts to deni- marriage. is the duration of the Evtimov, engage grate Mr. he did not if the trial decided again, judge But even justify giving him a warranted, conduct would it was not of the lesser share marital assets.4 Al- not to award him a lessor still in his property. though share he was unsuccessful business the 117of (1) by jointly Boyles, made of the 3.The referred to are: sition hоmestead factors (10) parties; circumstances of property; financial both owned the condition health (3) (2) couple's past living; wife; standard of and medical needs both husband (4) jointly property; the value owned (11) (12) marriage; duration of income, parties’ amount and nature of support. amount of child (5) anticipated; both current and the extent nature each of the resources assets of Russell, 4.In Russell 275 Ark. (6) parties; of the the amount income of (1982), Supreme the Arkansas (7) earning ability spendable; each that is parties Court deleted relative fault (8) capacity party; of eаch with a factor considered the court re- given parties, awarded or to one of the either gard alimony. party; dispo- the other court or *11 ventures, $300,000 taining efforts that he undertook with their residence in west insistence, if not Little Rock. express agreement, years Four after settling Milanova, Little Rock absolutely parties separate Ms. there was no evi Dr. Doe engaged of mis sues for divorce. Dr. Doe dence that kind remains in the home an and Mrs. Doe supported conduct that has hitherto lives either her car or with a unequal distribution of the estate. friend. The decree of Stover, hоme, divorce Stover v. awards the marital sub- Cf. debt, ject to the (affirming unequal mortgage S.W.2d 750 divi all fur- nishings to Dr. attempted where wife have her Doe. The rest of the sion killed); marital assets are Keathley fairly evenly. divided Keathley, husband (2001) (af Mrs. Doe’s request Ark.App. is de- nied, firming unequal notwithstanding distribution where the that Dr. Doe’s in- $110,000 annum, come gambled fraudulently approximates ob per husband while part-time credit which he Mrs. Doe’s two charged jobs pro- tained cards on $100,000); her vide with an income Forsgren Forsgren, approximate- over (1982) (af ly biweekly at $400 best. Mrs. $500 appeals. Doe firming unequal distribution of stock excessively
where wife consumed alcohol facts, Upon these would our court hesitate drugs resulting massive medical to find that the trial court abused its dis- bills). 11sby cretion ordering not at least rehabili- Accordingly, what this case all boils tative in some amount? I submit majority ratifying argu- to is the down However, that we would not. with a re- ment that Ms. Milanova made the trial versal of gender comport the scenario to money court: She she should made so us, the facts of the appeal before we not it. I get keep holding submit hesitated, only we affirmed the trial court’s bring consequences will about that the ma- alimony. denial of This is wrong.
jority certаinly most did not intend. statutory authority for an award of alimo- ny gender-neutral by was rendered Acts
ROBBINS, J., joins. 1979, No. 705.5 We should evenhanded in our treatment of divorce litigants who ROBBINS, J., dissenting. navigate justice system. I would re- agree points While I with the made verse. dissent, Judge sepa- Hart in her I write HART, J., joins in this dissent. rately suggest that the trial court’s deci- sion, affirmance, and our court’s evinces an
unacceptable gender bias. Consider
following scenario:
Dr. John Doe wife and his Doe Jane in Bulgaria.
reside are married
Soon after their marriage, they relocate Rock, Arkansas,
to Little where Dr. Doe at employed professor UALR.
Although struggles Mrs. Doe to learn to
speak English have a job and does not home,
outside their she works at main- (Repl.2008).
5. See Ark.Code Ann. 9-12-312 Notes “It should be determining whether to award are recalled under domestic relations law spouse the financial need of one and the an equitable division way is a spouse’s ability pay. other Id. The trial of avoiding a need for temporary alimo- judge following should also consider the