ARKANSAS COURT OF APEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION III

CA 00-648

April 11, 2001

ROGER GILLIHAN

APPELLANT APPEAL FROM IZARD COUNTY

CHANCERY COURT

VS.

HONORABLE JOHN DAN KEMP

CHANCELLOR

JOANN GILLIHAN

APPELLEE AFFIRMED

In rendering a decree dissolving the parties' marriage of twenty-eight years, the chancellor ordered Mr. Gillihan to pay Mrs. Gillihan $100.00 a week in alimony. Mr. Gillihan challenges that award as his only issue on appeal. Finding no abuse of discretion, we affirm the chancellor's decision.

For a number of years, Mrs. Gillihan has worked at the Bank of North Arkansas. At the time of the divorce, she was a loan officer and vice president earning a net annual income of $22,350.96. Her monthly living expenses were estimated at $1,384.00, and during themarriage Mr. Gillihan carried her on his health insurance plan at his place of employment. She is vested in a 401k retirement plan that currently holds around $5,000.00.

Mr. Gillihan has worked at the Boeing Company for about fifteen years, and he was also vested in a retirement plan. An end-of-the-year earnings statement for 1998 showed a gross salary of $48,434.59. After appropriate deductions, his net income was $35,234.09. Mr. Gillihan testified that he would remove Mrs. Gillihan from his health insurance coverage when the divorce became final.

The parties owned two pieces of real property and had accumulated a fair amount of debt. The chancellor ordered the real property to be sold and the profits, if any, to be applied toward the marital debt. If there were any debt remaining, the parties were to share it equally.

In making the award of alimony, the chancellor stated in his letter opinion:

In the present case, the parties had been married for 28 years. The parties were accus tomed to living on two incomes. Mrs. Gillihan has worked for many years at the Bank of North Arkansas and recently vested her retirement. Mr. Gillihan will have worked at Boeing for 15 years this December.

. . . .

Mr. Gillihan has a net monthly income of $2,936.17. Mrs. Gillihan has a net monthly income of $1,857.48. The court has considered the detailed estimated monthly living expensesas contained in Defendant's Exhibit #2. The Court has also considered the testimony of Mr. Gillihan that he intends to take his wife off his health insurance at work as soon as the divorce is final. This will result in more expenses for Mrs. Gillihan's need for health insurance and less expenses for Mr. Gillihan and an even greater disparity in their economic situations.

After considering the factors in the Boyles and Barker cases, the Court will exercise its discretion and will award alimony to Mrs. Gillihan in the amount of $100.00 a week beginning September 1, 1999. This amount is a reasonable amount which will offset their economic imbalance. After payment of alimony, Mr. Gillihan will have a net annual income of $30,034.09 and Mrs. Gillihan will have a net annual income of $27,550.96.

An award of alimony lies within the discretion of the chancellor and will not be reversed absent an abuse of that discretion. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). The amount of alimony awarded also lies within the sound discretion of the chancellor. Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1998). If alimony is to be awarded, then it should be set at an amount that is reasonable under the circumstances. Holaway v. Holaway, 70 Ark. App. 240, 16 S.W.3d 302 (2000).

The purpose of alimony is to rectify, insofar as is reasonably possible, the frequent economic imbalance in the earning power and standard of living of the divorced parties in light of the particular facts of each case. Barker v. Barker, 66 Ark. App. 187, 992 S.W.2d 136 (1999). The primary factors to be considered in the award of alimony are the needs of the spouse requesting alimony andthe other's ability to pay. Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996). Certain secondary factors may be considered in setting alimony, including: (1) the financial circumstances of both parties; (2) the amount and nature of the income; and (3) the extent and nature of the resources and assets of each of the parties. Holaway v. Holaway, supra, citing Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980).

As his first argument on appeal, appellant contends that the chancellor erred by improperly focusing on the "secondary" factors outlined in Boyles v. Boyles, supra, in making the decision to award alimony, rather than considering only the "primary" factors of need and ability to pay. It is the appellant's contention that the secondary factors apply only to the decision concerning the amount of alimony to be awarded. We disagree with appellant's argument as a matter of fact and law. In both his letter opinion and the decree, the chancellor specifically referred to the need of one spouse and the other's ability to pay as the controlling considerations. Therefore, we cannot agree that the chancellor disregarded the parties' relative need or ability to pay. That the chancellor also considered the Boyles factors is not an erroneous application of the law. Those factors are not strictly confined to the issue of fixing the amount of alimony but may also have a bearing on the decision of whether or not alimony is to be awarded.

Appellant next argues that the chancellor erred in relying on the year-end earnings statement of 1998, rather than three of his most recent pay stubs. Appellant argues that the pay stubs, which indicate less earnings, more accurately reflected his income because the 1998 statement included overtime and bonus payments that he did not believe would be available to him. As we have held many times, we must take into consideration the superior position from which the chancellor evaluates the credibility of the witnesses. Lytle v. Lytle, 301 Ark. 61, 781 S.W.2d 476 (1989). Therefore, we cannot say that the chancellor erred in finding that the 1998 statement reflected an accurate assessment of appellant's income.

Affirmed.

Neal and Vaught, JJ., agree.