Vigneault v. Vigneault

JOSEPHINE LINKER HART, Judge, dissenting.

How can anything so wrong end up so right? I agree with the majority — and Mr. Vigneault — that the trial court erred in improperly using the child-support chart to fix the amount of alimony. Given that the alimony award was based on such a fundamental error, this case should have been reversed and remanded to the trial court. It is axiomatic that appellate jurisdiction does not permit this court to retry cases or make findings of fact. Farmers Union Mut. Ins. Co. v. Robertson, 2010 Ark. 241 , 370 S.W.3d 179 ; Looper v. Madison Guar. Sav. & Loan Ass’n, 292 Ark. 225, 227-28 , 729 S.W.2d 156, 157 (1987). Yet the majority has chosen to invade the province of the trial court and engage in fact finding, ultimately concluding that the amount of alimony levied against Mr. Vig-neault was “reasonable.” One might ask how the majority could do this. It is obvious to me that the answer is: “poorly.”

One would hope that once the majority had made the decision to invade the province of the trial court, they would at least do so with a measure of circumspection. However, the majority was no more heedful of the applicable case law than the trial court. To be sure, the majority cites the axiomatic rule that “the primary factors in determining alimony are the |10financial need of one spouse and the other spouse’s ability to pay.” 1 However, it fails to properly analyze either prong. This failure is particularly egregious in that Mr. Vig-neault clearly argues that the award made to his ex-wife exceeded her stated need for alimony and failed to adequately take into account his ability to pay!

Though I am loathe to engage in the very conduct that I deride, I have to agree with Mr. Vigneault that the trial court erred in ignoring Ms. Vigneault’s stated needs. He. asserts that the amount of alimony that the trial court awarded, $4506.50 per month, 2 plus the trial court’s finding of $1577 imputed income, greatly exceeds Ms. Vigneault’s stated needs as set out in her trial exhibit, captioned “Estimated Alimony Needed,” which lists appel-lee’s post-divorce financial needs. In that document, Ms. Vigneault stated that she needed only $4850.00 per month. I submit that even that figure cannot withstand even the most cursory scrutiny. The most questionable line item is $386 in “retirement savings.” The trial court already awarded Ms. Vigneault a most generous share of Mr. Vigneault’s retirement.

lnOther aspects of the needs analysis, or lack thereof, are equally troubling. Regarding Mr. Vigneault’s argument that the trial court erred in calculating the amount of imputed income, I do not think there is any question that the trial court’s figure of $1577 is wrong, as is, interestingly enough, the majority’s. Ms. Vigneault testified that she turned down full-time employment as a phlebotomist where she was offered a starting salary of $11.38 per hour. If one were to multiply $11.38 by 40 hours per week and multiply that total by 4.334, as stated in Administrative Order 10 to get a monthly total, the gross imputed income would be $1972.84 — neither the $1820 suggested by the majority, nor the $1577 that the trial court computed. Importantly, none of these figures include the $150 per week that Ms. Vigneault claimed to have realized from her beauty shop, which in part reflects her forty-percent cut of her employee’s gross. It is simply wrong for the majority to excuse the trial court’s figures by guessing that the trial court must have been figuring net income when it concluded that the trial court’s figures were close enough. The majority failed to apprehend that part of Ms. Vig-neault’s stated “needs” was for Mr. Vig-neault to pay her taxes!

As far as not discounting Ms. Vig-neault’s purported “need” for health insurance as some kind of failure of proof, Ms. Vigneault admitted that she would have been entitled to employer-provided insurance had she accepted the phlebotomist job at a hospital. While it is true Mr. Vigneault did not pin Ms. Vigneault down to a specific dollar value of the benefit, it is not equitable for the majority to conclude it was worthless. Also not sufficiently explored was Ms. Vigneault’s beauty-shop income. She claimed that she earned only $150 per week, |12a claim that is belied by documentary evidence that her business account grew by thousands of dollars during the pendency of the divorce. Now I do not mean to suggest that this court engage in credibility determinations, but I mention this problem as a final reason to support my primary premise: this case cried out for fact-finding that was simply not accomplished at the trial court level. After all, because the trial judge set alimony by erroneously applying the Arkansas Child Support Guidelines, which does not factor in the payee’s income, the trial judge had little reason to determine the credibility of Ms. Vigneault’s testimony with regard to her income. We should have sent it back for the trial judge to do her job.

. The majority ascribes this point of law to Boudreaux v. Boudreaux, 2009 Ark. App. 685 , 373 S.W.3d 329 ; however, it could have lifted the same language from any of the eighteen other alimony cases that this court decided in the last two years.

. Incredibly, the majority asserts in its hastily-written footnote that Mr. Vigneault makes no argument on appeal contesting the propriety of the so-called lump-sum award. Suffice it to say that Mr. Vigneault added a prorated share of the $8,634 to the regular monthly alimony award of $3,787 to arrive at the $4,506.50 per month that he criticizes on appeal. Contrary to the assertions of my mathematically-challenged colleagues, I did not "artificially inflate” the alimony award— on a monthly basis, $4,506.50 is exactly what Ms. Vigneault was awarded. I merely acknowledged and examined Mr. Vigneault’s argument on appeal, as had heretofore been this court's practice.