Zimmerman v. Pope

• Court: Arkansas Court of Appeals
• Writing for the Court: BART F. VIRDEN, Judge
• Citation: Zimmerman v. Pope, 2015 Ark. App. 499, 471 S.W.3d 646 (Ark. App. 2015)
• Decision Date: 23 September 2015
• Docket Number: No. CV–14–525,CV–14–525
• Parties: Gayle D. Zimmerman, Appellant, v. Samuel B. Pope, Appellee.

2015 Ark. App. 499

471 S.W.3d 646

Gayle D. Zimmerman, Appellant,

v.Samuel B. Pope, Appellee.

No. CV–14–525

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered September 23, 2015

Rehearing Denied October 28, 2015

Gayle D. Zimmerman, pro se appellant.

Byrd Law Firm “P.A.”, Hamburg, by: John Richard Byrd, Sr., for appellee.

Opinion

BART F. VIRDEN, Judge

Gayle Zimmerman appeals from the amended divorce decree entered in the Ashley County Circuit Court on March 10, 2014, that modified a prior divorce decree entered on February 28, 2013. In this amended decree, the circuit court denied Zimmerman's request for alimony and awarded her ex-husband, Samuel Pope, one-half of the money she had withdrawn from her nonvested Arkansas Public Employees Retirement System (APERS) account. Zimmerman also appeals from the circuit court's denial of attorney's fees and her motion for an order of protection; and she requests that this court allow her to supplement the record to aid in addressing this point on appeal.

We deny the motion to supplement the record. We affirm the circuit court's denial of alimony and attorney's fees. We reverse the circuit court's decision to award one-half of the funds withdrawn from the nonvested retirement account to Pope, and we remand the issue for the circuit court to enter an order consistent with this opinion.

I. Facts

Gayle Zimmerman and Samuel Pope separated in September 2011 after thirty-two years of marriage. Pope filed a petition for divorce on January 25, 2012. On April 5, 2012, Pope, Zimmerman, and Zimmerman's live-in companion, Bill Murray (hereinafter referred to as “Murray”), were involved in a verbal and physical altercation at Wal–Mart in Crossett, and on April 27, 2012, Zimmerman filed a petition for an order of protection stemming from this event. On September 10, 2012, the circuit court held a hearing on this matter, and after hearing testimony, the circuit court orally dismissed Zimmerman's petition from the bench, stating that Pope had not exhibited threatening behavior in the past six months, so there was no fear of imminent harm. No written order was entered.

On December 12, 2012, the circuit court held a hearing where it addressed the property-settlement agreement reached by the parties. The settlement agreement allotting property and debt to each party was incorporated into the divorce decree, and the decree was entered February 28, 2013. The content of the settlement agreement that relates to this appeal concerns Zimmerman's APERS account and the issue of alimony. According to the agreement, Pope would receive one-half of Zimmerman's APERS account if it vested but, “if the interest of defendant does not vest, then plaintiff is entitled to zero.” The court set temporary alimony at one dollar per month “with the issue of permanent alimony reserved for a subsequent hearing and proof. The Court retains jurisdiction over this issue.” The circuit court also found that Pope was entitled to a divorce from Zimmerman.

On August 15, 2013, an amendment to Arkansas Code Annotated section 9–12–312became effective and set forth “Unless otherwise ordered by the court or agreed to by the parties,the liability for alimony shall automatically cease upon ... living full time with another person in an intimate, cohabitating relationship[.]” Ark.Code Ann. § 9–12–312(a)(2)(D)(Supp. 2013) (emphasis added).

Despite the divorce decree being entered on February 28, 2013, on January 8, 2014, the circuit court held another hearing on the outstanding issues of property and alimony. Each party testified to his and her current and past income level, the extent of emotional and career support they had received from each other during the marriage, and the family roles and responsibilities they had assumed during their marriage. Both parties filed affidavits of financial means, tax returns and forms, and pay stubs. Zimmerman specifically testified that she had campaigned day and night for her husband during his elections, that she was the primary caretaker of the children when they were young and that she had furthered his career at the expense of her own professional advancement. Zimmerman testified that she is a licensed attorney but does not earn enough in private practice to justify keeping an office open, so she closed her practice and in 2009 began working for the Arkansas Child Support Enforcement Unit, earning around $52,000 per year and which was the source of the contested APERS account. At the time of the hearing, she testified that she had no income, that her health insurance had lapsed, and that she needed extensive dental work. Zimmerman testified that when she was fired from her job with the Arkansas Child Support Enforcement Unit, and she believed that because the account had not vested, the funds belonged solely to her. The APERS account held approximately $7300. Zimmerman also testified that she and Murray were living together in a romantic relationship and that, though Murray received income from his business and retirement from the military, he did not contribute to the household expenses. Zimmerman testified that she was actively searching for employment and was receiving unemployment benefits. She testified that she was having difficulty making her house payment, homeowner's insurance payment, and car insurance payment. Zimmerman asked that she be awarded alimony of no less than one-half of Pope's net income and for the award to last no less than thirty-three years.

Pope testified that he had received help from Zimmerman during his elections but that she had not campaigned tirelessly. He also testified he believed Zimmerman made about $1500 every two weeks working for Murray and that she had withdrawn the balance of her nonvested APERS account when she was fired. He testified about his own income and expenses as well. He testified that he paid for his son's dental-school expenses and that he supported his children financially while they pursued postgraduate degrees. Pope testified that he received a salary from his position as a circuit judge, income from a trust set up by his parents, and income from a rent house he owned. He admitted that he owed around $26,000 to Zimmerman according to the divorce decree and that he had not made all of the payments. He also submitted exhibits to the court showing that Zimmerman had a successful law practice in recent years.

In its January 31, 2014 order the court directed the parties to submit letters concerning the issues surrounding Zimmerman's nonvested APERS account funds. The court also stated that a letter would be forthcoming upon the issue of alimony.

In a letter dated February 10, 2014, the circuit court denied alimony to Zimmerman:

I have reviewed my notes and some of the exhibits from the January 8, 2014 hearing in the above referenced case....

Ms. Zimmerman admitted that she is living with a man in an intimate, cohabitating relationship. Under A.C.A § 9–12–312(a)(2)(D)she is not entitled to alimony. This was my third hearing in this case. It has been established that Ms. Zimmerman has had a sexual relationship with this man since the parties separated more than two-and-a-half years ago, although the exact date that Ms. Zimmerman started living with this man was not established, it is clear that this is a long-term relationship. The only difference between this couple and a married couple is a marriage ceremony. Therefore the Court feels that alimony would not be appropriate in this case whether this statute existed or not.

The circuit court also denied Zimmerman's January 13, 2014 motion for declaratory judgment in which she requested that the circuit court find section 9–12–312(a)(2)(D)unconstitutional.

In its letter, the circuit court also addressed the APERS account funds disbursed when Zimmerman's employment was terminated. The circuit court found that because the funds paid into the account were marital, the nonvested account was marital property, which should be divided equally. The amended decree of divorce reflecting this change and the circuit court's decision concerning alimony were entered March 10, 2014. This appeal followed.

II. Issues

A. Order of Protection

First we address the issue of Zimmerman's request for an order of protection, which the circuit court denied.¹The circuit court ruled orally from the bench, and no written order was filed of record. Arkansas Rule of Appellate Procedure—Civil 2(a)(1) sets forth that an appeal may be taken from a final judgment or decree entered by the circuit court. Without an order addressing Zimmerman's request for an order of protection, this court cannot reach this issue.

B. Alimony

Zimmerman asserts several challenges to the court's denial of her request for alimony. She challenges the constitutionality of the statute, and she also asserts that the circuit court abused its discretion in refusing alimony. Zimmerman also argues that the award of alimony should have been decided under the previous statute, which was in effect when she and Pope separated in September 2011 and at the time the original divorce decree was entered in February 2013.

1. The constitutionality of Arkansas Code Annotated section 9–12–312(a)(2)(D)

We first address the constitutionality of the amended statute. Zimmerman appeals from the circuit court's denial of her motion for declaratory judgment in which she requested that the circuit court declare section 9–12–312(a)(2)(D)unconstitutional. She argues that Arkansas Code Annotated section 9–12–312(a)(2)(D)is unconstitutional for three reasons. First, she asserts that the statute dictates that the award of alimony is automatically terminated upon the recipient's intimate cohabitation with another person, which violates the Due Process Clause. Second, she argues that the statute disproportionately affects more women than men and therefore violates the Equal Protection Clause, Third, Zimmerman argues that the circuit court's consideration of cohabitation violates the right to privacy....