ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION II

HOWARD JERRY WOODALL

APPELLANT

V.

JEANNA ANN WOODALL

APPELLEE

CA03-33

September 3, 2003

APPEAL FROM THE INDEPENDENCE COUNTY CIRCUIT COURT

HON. KEITH RUTLEDGE, JUDGE

DR-02-236-4

AFFIRMED

Larry D. Vaught, Judge

This is an appeal from a divorce decree. Appellant raises three points of appeal: (1) the trial court erred in granting alimony; (2) the trial court erred in granting an attorney's fee to appellee; (3) the trial court erred in not dividing the personal property equitably between the parties. We disagree with appellant's arguments and affirm.

Appellant Howard Jerry Woodall, Jr. and appellee Jeanna Ann Woodall married on July 31, 1991, and separated on April 5, 2002. No children were born during the marriage. Appellant filed a complaint for divorce, and appellee counterclaimed for divorce and asked for temporary and permanent alimony. After a hearing, a temporary order was entered awarding appellee $100 per week in alimony. A trial was held on July 29, 2002. After taking the case under advisement, the court entered an order on October 1, 2002, granting appellee's counterclaim for divorce. The order equally allocated the debt incurred between the date of marriage and separation, and awarded appellee alimony of $300 per month. In making the alimony determination, the court considered appellee's inability to engage in gainful employment due to the bone disease osteochondroma, as well as appellant's ability to pay. The court also found that the parties had no real property and that the personal property had been previously divided and that the division was equitable.

Appellant first argues that the trial court erred in awarding alimony to appellee. The decision whether to award alimony is a matter that lies within the trial court's sound discretion, and on appeal we will not reverse a trial court's decision to award alimony absent an abuse of that discretion. Ellis v. Ellis, 75 Ark. App. 173, 57 S.W.3d 220 (2001). The purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case; the primary factors that a trial court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse's ability to pay. Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998). A court may also consider other factors including, among other things: (1) the parties' financial circumstances; (2) the amount and nature of the parties' income, both current and anticipated; (3) the extent and nature of the parties' resources and assets; (4) the parties' earning ability and capacity. Ellis, supra.

At trial, appellee testified that she had been married to appellant for approximately ten years before they separated. At the time they married, she had the bone disease osteochondroma, which made her bones grow weak and worsened over time. She cannot stand for long periods of time. She had the disease since she was a child, and appellant was aware of her condition prior to marriage. She also had a three-year-old son at the time of the marriage. She testified that she was unable to work because of her disease and her only income was the $40 per week child support she received for her son from a previous marriage. She had not worked since August 2001. In July 2001, she worked for a gas station for a month and a half, and worked at the hospital prior to that job. She stated that she had $125 taken out of her paycheck twice a month when she worked at the hospital to pay for medical bills incurred due to her disease. She filed for disability and was denied, and an appeal was pending at the time of the divorce trial. She stated that appellant encouraged her not to work because of the problems she was having with her disease and because he did not want to pay more hospital bills. Appellee's father also testified that she was unable to work. There was also testimony that the parties owned a truck that was in the garage at the time of separation, and that appellee's father gave her $2000 to pay the repair bill to get the truck back. She testified that she spoke with appellant about filing for bankruptcy but that he would not discuss it with her. She sought $150 a week in support, which she stated would probably be enough to "get by." If she were to get disability, she thought it would be about $680 a month.

At trial, appellant testified that he earned $12.55 per hour and averaged $400 per week including overtime pay. He worked approximately 50 to 60 hours a week at GenCorp, where he had worked for four years. As of July 14, 2001, his gross earnings were $23,101.64, which would translate into about $46,000 per year. He stated that he had insurance and union dues taken out of his paycheck. His health insurance was about $7 per week. For his expenses, he stated that he lived with a friend's mother. He paid $250 in rent, plus utilities that ran about $100 per month. He stated that he spent about $150 a week in groceries and $200 a month in gas. He borrowed a vehicle from his friend's mother and paid $130 a month for insurance. As for the marital debts, he indicated that they owed $2000 on a $3000 note to the bank, $5000 for a trailer that had been repossessed, and the outstanding medical bills. He indicated that he was not sure of the total amount of their outstanding debts, but thought that it probably exceeded $40,000. He testified that appellee could work as long as she was sitting down and that he never encouraged her not to work. He stated that appellee quit her job because she was "stressed."

In making the alimony determination, the court considered the testimony regarding appellee's inability to engage in gainful employment due to her bone disease, as well as appellant's testimony of his earnings, expenses, and debts. While appellant challenged appellee's inability to work, the court obviously found her testimony to be credible. Based on the testimony at trial, we cannot say that the court abused its discretion in awarding alimony.

For his next argument, appellant contends that the trial court erred in granting an attorney's fee to appellee. Arkansas Code Annotated section 9-12-309(2) (Repl. 2002) provides that the court may award a reasonable attorney's fee in the final decree of an action for absolute divorce. An award of an attorney's fee is within the discretion of the trial court in a divorce case and will not be reversed absent an abuse of discretion. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).

In the present case, the trial court awarded appellee $750 in attorney's fees. Appellant, while recognizing the disparity between the parties' incomes, contends that an onerous burden has been placed upon him to pay appellee alimony of $300 per month, $750 in attorney's fees, and all the marital debt. Although appellant speculates that he will ultimately have to pay all of the marital debt because appellee does not have any income, the trial court did not order him to do so. The evidence reflected that appellee's only income was $40 per week child support for her son and alimony. Because of the disparity in the parties' income and appellee's health problems, as discussed above, we hold that the trial court did not abuse its discretion in awarding $750 in attorney's fees.

Lastly, appellant argues that the trial court erred in not dividing the personal property equitably between the parties. The divorce decree provides that "the parties owned no real property and the personal property of the parties has previously been divided, and the court finds that there was an equitable division and each party shall retain the personal property now in their possession."

Appellant contends that the trial court's finding of fact that the personal property had previously been divided equitably is not supported by the evidence and is clearly erroneous.

At the beginning of trial, appellant's counsel stated that property division was an issue to be litigated. However, the only evidence introduced on this issue came from appellee, who testified that she had the household furnishings, the 1993 Ford, and appellant's guns and tools. In his testimony, appellant neither asked for any property in his wife's possession, nor did he testify regarding the parties' marital property. While the trial court's finding that the personal property had been previously divided is not supported by the record, there was no evidence of what marital property existed from which the trial court could have divided the property. The burden is upon the appellant to bring up a record sufficient to demonstrate that the trial court was in error. Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986). The appellant has failed to make an adequate record to warrant reversal on this point.

Affirmed.

Baker and Roaf, JJ., agree.