Eubanks v. Eubanks, CA 07-1119 (Ark. App. 4/29/2009)
| Decision Date | 29 April 2009 |
| Docket Number | CA 07-1119 |
| Parties | Kenneth Dewayne EUBANKS, Appellant, v. Holly Jean Clem EUBANKS, Appellee. |
| Court | Arkansas Court of Appeals |
Appeal from the Craighead County Circuit Court, No. DR-2003-1013, Honorable Lee Fergus, Judge.
Affirmed.
Appellant Dewayne Eubanks appeals the divorce decree ending his marriage to appellee Holly Eubanks. For reversal, he challenges the circuit court's award of alimony to appellee, the court's valuation of his interest in a limited-liability company, and the court's allowance of attorney's fees to appellee. We affirm.
The parties to this appeal married in December 1982. During the marriage, appellant went to medical school and is now a board-certified neurosurgeon. Appellant is the sole shareholder in his medical group known as Spine-Arkansas. Spine-Arkansas also employs a chiropractor, Dr. Terry Barnett. Appellant, Dr. Barnett, and accountant Stan Lamb are each one-third members of a limited-liability company known as Black Dog Development, LLC (Black Dog). The three members formed Black Dog to facilitate the purchase of unimproved real estate upon which to build a clinic. In 2003, Black Dog purchased a parcel of land for $288,000, and the land remained unimproved at the time of trial.
Prior to the parties' separation, appellee stayed at home to raise the parties' five children, three of whom have reached their majority. The parties separated in January 2003 because appellant started living with another woman, Debra West. Appellant introduced West to representatives of medical device companies, and she became a sales representative for those companies. Appellant helped West form a limited-liability company, DL Medical, through which West distributes medical devices. Although West is a regional sales representative, appellant is her only client.
Appellee filed her complaint for divorce on December 30, 2003. Appellant answered, denying the material allegations of the complaint. After the court began hearing testimony, appellee filed a supplemental third-party complaint against Spine-Arkansas, West, and DL Medical, asserting that appellant used West and the other entities to shield appellant's assets and income from appellee. The supplemental complaint sought the imposition of a constructive trust on West's income and that of the associated entities.
The trial spanned eleven days, which extended over a period of eighteen months. In the divorce decree entered on March 30, 2007, the circuit court found appellant's income to be $171,853 per year, or $14,321 per month, and the court ordered appellant to pay child support of $3,007 per month. The circuit court also ordered appellant to pay appellee alimony of $5,155 per month. The court ruled that the alimony award would not automatically cease if appellee remarried but rather that it would be reduced by fifty percent upon her remarriage. In valuing appellee's marital share in Black Dog, the court cited testimony that appellant currently owned a one-third interest in the corporation and testimony that appellant might acquire the interest of Stan Lamb in the future. The court then referred to testimony that appellee's marital share would be worth $30,688 if appellant retained a one-third interest and $54,000 if appellant acquired a one-half interest. The court "split the difference" and valued appellee's share at $42,344. The court also directed appellant to pay a $9,000 loan received from appellee's mother. Additionally, the circuit court ordered appellant to pay $60,000 towards appellee's attorney's fees and $11,726 in fees for her accountant. Finally, the circuit court denied appellee's third-party complaint seeking the imposition of a constructive trust.
On April 12, 2007, appellant filed a motion for a new trial and request for specific findings of fact. In his motion for a new trial, appellant asserted that irregularities in the proceedings deprived him of a fair trial; that the circuit court's division of marital property and the awards of child support and alimony were made under the influence of passion or prejudice; that the court's rulings were clearly contrary to the evidence and the law; and that errors of law occurred at trial to which he raised objections. On April 25, 2007, appellant filed a notice of appeal from the decree of divorce. The circuit court held a hearing on appellant's new-trial motion on April 30, 2007. On May 16, 2007, the court entered an order granting the motion in part and denying the motion in part. The court reduced appellee's marital share of Black Dog to $30,688. The court also reduced the amount of attorney's fees owed to appellee to $45,000, and the court eliminated the requirement that appellant repay the debt to appellee's mother. In all other respects, the trial court denied the motion for a new trial. On May 18, 2007, appellant filed an amended notice of appeal from the order addressing the motion for a new trial.
As a preliminary matter, we must first acknowledge a jurisdictional defect concerning the circuit court's order deciding appellant's motion for a new trial. Even if not raised by the parties, the question of subject-matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can be raised by the appellate court. Zolliecoffer v. Post, 371 Ark. 263, 265 S.W.3d 114 (2007). Rule 59(b) of the Arkansas R ules of Civil Procedure requires a motion for a new trial to be filed no later than ten days after the entry of judgment. Like any motion to vacate, alter, or amend a judgment that is filed ten days after the entry of judgment, new-trial motions are deemed denied if the trial court neither grants nor denies the motion within thirty days. Ark. R. App. P.—Civil 4(b)(1). Otherwise, the trial court must decide the motion for a new trial within thirty days and enter that decision of record. Wal-Mart Stores, Inc. v. Isely, 308 Ark. 342, 823 S.W.2d 902 (1992). If the trial court does not enter the decision of record within thirty days, the court loses jurisdiction to act on the motion, and any order entered after thirty days is void and of no effect. Ark. State Hwy. Comm'n v. Ayres, 311 Ark. 212, 842 S.W.2d 853 (1992); Farm Bureau Mut. Ins. Co. of Ark., Inc. v. Suddrick, 49 Ark. App. 84, 896 S.W.2d 452 (1995).
In the present case, appellant timely filed a motion for a new trial on April 12, 2007. Thus, the trial court had thirty days after that date to decide the motion and enter that decision of record. This thirty-day time period expired on May 14, 2007. The trial court entered its order deciding the motion beyond this deadline on May 16, 2007. Therefore, the order is void because the trial court lost jurisdiction to act on the motion after the expiration of thirty days. Because the motion for a new trial was deemed denied by the court's inaction, the rulings in the divorce decree stand without alteration. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997) ().
Turning now to the first point on appeal, appellant argues that the circuit court erred in calculating his income for purposes of setting alimony and child support. He also challenges the court's award of alimony.
Appellant initially argues that the circuit court should not have imputed any income to him. In its ruling, the circuit court determined appellant's income by starting with income of $144,751 per year as calculated by his own accountant. The court imputed an additional $2,258 per month, or $27,102 of annual income to appellant to arrive at appellant's disposable income. The testimony established that West, through DL Medical, provided appellant with two credit cards used to finance trips, paid for his dental work, and provided him with a computer, among other things. Other testimony showed that appellant lived in a home owned by West and that appellant's payment of $700 in rent to West was approximately one-third of the monthly expenses. West also gave appellant money as needed to pay bills, including his child support and alimony payments.
The payment of personal expenses by third parties can be considered income for purposes of setting child support or alimony. See Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002); Weir v. Phillips, 75 Ark. App. 208, 55 S.W.3d 804 (2001). Likewise, the supreme court has held that a gift from a payor's grandparents, a certificate of deposit, and retirement payments all fell within the broad range of a payor's sources of income for child-support purposes. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). Although appellant argues that federal law prohibits a physician from benefitting financially by having a financial interest in a company that supplies medical devices utilized by the physician, see 42 U.S.C. § 1395nn, the circuit court correctly noted that the issue in this case is the amount of income available to appellant. The question of whether appellant violated federal law was not at issue. In the present case, we cannot say that the circuit court erred by imputing income to appellant based on the evidence showing a third-party's payment of his personal expenses.
As a further argument under this point on appeal, appellant contends that the circuit court erred in ordering the payment of lifetime alimony to appellee. The duration of alimony is within the circuit court's discretion. See Hiett v. Hiett, 86 Ark. App. 31, 158 S.W.3d 720 (2004). 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, 368 Ark. 43, 243 S.W.3d 270 (2006). The primary factors that a court should consider in awarding alimony are the financial need of one spouse and the other spouse's ability to pay. See id. The circuit court may also consider other factors,...
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