ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION II

TERRY GIBSON,

APPELLANTS

v.

PAT GIBSON,

APPELLEE

CA03-268

OCTOBER 29, 2003

APPEAL FROM CLEVELAND COUNTY CIRCUIT COURT,

NO. E-2001-80-2,

HONORABLE EDWARD P. JONES, CIRCUIT JUDGE

AFFIRMED ON BOTH DIRECT APPEAL AND ON CROSS-APPEAL

Sam Bird, Judge

This appeal arises out of a divorce action. Appellant Terry Ann Gibson raises issues concerning the valuation and distribution of marital property, the calculation of appellee's income for child-support purposes, and the trial court's decision not to award appellant alimony. Appellee Pat Gibson cross-appeals, raising other property issues, as well as challenging the trial court's decision awarding custody of the parties' minor children to appellant and the trial court's award of attorney's fees to appellant. We affirm.

The parties married in July 1990 and separated in July 2001. The parties had separated several other times during the marriage. Two children were born of the marriage: a daughter, Frances, born in 1991, and a son, Pat C. Gibson, IV, born in 1994. During the marriage, appellee operated a successful logging business while appellant cared for the children and was not employed outside the home. Appellant helped keep the books for the logging business. In addition, appellee assisted his father in raising cattle until the father's death in 2001. Appellee

took over the cattle operations after his father's death and testified that he shut down the logging business because of market conditions in 2000, but this testimony was contradicted by appellant's testimony and by logging contracts entered into after the time appellee said that he ceased logging operations.

On July 23, 2001, appellant filed her complaint for divorce and, in addition, sought custody of the minor children, child support, alimony, and a division of the parties' marital property. Appellee answered, denying that appellant was entitled to any relief, and counterclaimed, seeking custody of the minor children. Appellee also requested that his separate property be returned to him and that the marital property be divided.

Based upon a finding that appellant was the primary provider for the children and that appellee had lived away from the marital home for substantial periods of time, the trial court granted custody of the minor children to appellant. In its opinion, the court also found appellee's net monthly income to be at least $2,500 and set his child-support obligation at $671 per month; denied appellant alimony; found that certain farm equipment and cattle were marital property; ordered the marital property to be divided equally; ordered the marital property sold and the net proceeds divided equally if the parties could not agree upon a division of such property; and awarded appellant an attorney's fee of $2,500 to be paid by appellee. A decree was entered incorporating these findings. This appeal and cross-appeal followed.

Appellant raises three issues on appeal: that the trial court erred in its ruling on the proper amount of child support; that the trial court erred in not awarding permanent alimony; and that the trial court erred in not considering the $300,000 appellee lost in the stock market in dividing the marital debts.

On appeal, equity cases, such as divorces, are reviewed de novo. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 738 (2001). We review the trial judge's findings of fact and affirm them unless they are clearly erroneous. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Huffman v. Fisher, 343 Ark. 737, 38 S.W.3d 327 (2001). In order to demonstrate that the trial court's ruling was erroneous, an appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Skokos v. Skokos, supra.

Appellant first argues that the trial court erred in setting appellee's child-support obligation. Specifically, appellant argues that the trial court erred in failing to impute income to appellee and set child support accordingly. Appellant claims that appellee intentionally reduced his income in an effort to reduce his child-support obligation. The trial court, in the portion of its letter opinion dealing with child support, stated:

The amount of child support lies within the sound discretion of the trial judge, and the judge's finding will not be reversed absent an abuse of discretion. McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). The trial judge is required to refer to the child-support chart, and the amount specified in the chart is presumed to be reasonable. Smith v. Smith, supra. However, the presumption that the chart is correct may be overcome if the trial judge provides written findings that the chart amount is unjust or inappropriate. Id.

It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Stepp v. Gray, 58 Ark. App. 229, 947 S.W.2d 798 (1997). The version of the child-support chart applicable when this case was tried is found at In re: Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. (January 31, 2002). In section IIIc, the guidelines provide that for self-employed payors, the amount of support shall be calculated based on the last two years' federal and state income tax returns:

Appellant admitted that she did not know the parties' net income after all business expenses but argues that the tax returns show that the logging business made a lot of money and that both she and appellee wrote checks from the business account to pay family living expenses. Appellant also testified that appellee cashed several checks and pocketed the money without declaring it for tax purposes. Company-paid personal expenses are considered income for purposes of setting child support. See Weir v. Phillips, 75 Ark. App. 208, 55 S.W.3d 804 (2001). However, appellant also argues that these same returns are inaccurate and do not reflect the correct amount of appellee's income. Appellant then argues that income should have been imputed to appellee but does not suggest what appellee's income may have actually been. The parties' accountant testified that the corporation's income was not the same as the parties' individual incomes and that both parties drew money out of the business.1 The accountant also made it clear that he was discussing only the corporate tax returns and not the individual tax returns. We believe that the trial court did impute some amount of income to appellee because the trial court set appellee's obligation based on a net monthly income of $2,500, while appellee's testimony and affidavit of financial means state his net monthly income as $1,850. Appellee testified that he believed that he could earn $15 per hour, which would be approximately $2,600 in gross monthly income and a net amount somewhat less than that found by the trial court. It was appellant's duty to present sufficient evidence, argument, and citation of authority to prove her assertion that she was entitled to a greater amount of child support, Kelly v. Kelly, supra; Munn v. Munn, 315 Ark. 494, 868 S.W.2d 478 (1994); Halter v. Halter, 60 Ark. App. 189, 959 S.W.2d 761 (1998), but she has failed to do so. Appellant helped keep the logging business's books and was in a position to know the true nature of the parties' finances and incomes. Without some further information as to the parties' individual incomes, the trial court was left to determine appellee's income on its own. We affirm on this point.

For her second point, appellant argues that the trial court erred in not awarding her alimony. The decision whether to award alimony is a matter that lies within the trial judge's sound discretion, and on appeal, this court will not reverse a trial judge'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. Id. The primary factors that a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse's ability to pay. Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002). The trial court should also consider the following secondary factors: (1) the financial circumstances of both parties; (2) the amount and nature of the income, both current and anticipated, of both parties; (3) the extent and nature of the resources and assets of each of the parties; (4) the earning ability and capacity of both parties. Id. The amount of alimony should not be reduced to a mathematical formula because the need for flexibility outweighs the need for relative certainty. Id.

Appellant argues that there is an imbalance in the parties' incomes and earning capacity, thereby justifying an award of alimony. Appellant also testified that she wanted alimony in order to help support herself while she returned to school to become an X-ray technician. This is a proper consideration in determining whether to award alimony. See Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). She also admitted that she had not looked for work since the temporary hearing. Here, the trial court found that the parties were essentially bankrupt and that appellant had worked in the past and could obtain employment. Appellant does not dispute that she can work. These findings take into account most of the Davis factors listed above concerning the financial condition and earning capacity of the parties, as well as the factors of the need of appellant and appellee's ability to pay. Further, although not mentioned by the trial court, appellant was to receive monthly income of $750 from a contract for the sale of a sawmill as part of the property division. Therefore, because the trial court considered the relevant factors, we cannot say that the trial court abused its discretion in not awarding appellant alimony.

In her third point, appellant argues that the trial court erred in not considering the money that appellee lost in the stock market when dividing the marital property. A judge's decision to allocate debt to a particular party or in a particular manner is a question of fact and will not be reversed on appeal unless clearly erroneous. Ellis v. Ellis, supra. There was testimony that appellee lost $275,000 to $300,000 in the stock market during the marriage. The trial court found that the parties should equally divide the marital debt. Appellant argues that the trial court clearly erred in this finding but cites no authority for that proposition. We are unable to find any testimony that places a value on the marital property. Appellant provided a list of marital and separate property and marital debt without any values assigned to the items. Appellee testified that the marital debts totaled $682,539. 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). Appellant has failed to make an adequate record to warrant reversal on this point. Further, this court does not consider assertions of error that are unsupported by convincing legal authority or argument, unless it is apparent without further research that the argument is well taken. Grayson v. Bank of Little Rock, 334 Ark. 180, 971 S.W.2d 788 (1998).

Appellee raises three points on cross-appeal: that the trial court erred in awarding appellant attorney's fees; that the trial court erred in classifying certain assets as marital property; and that the trial court erred in awarding appellant custody of the parties' minor children.

As his first point on cross-appeal, appellee argues that the trial judge abused his discretion in awarding appellant $2,500 towards her attorney's fees. Appellee argues that the award of attorney's fees is inconsistent with the remainder of the decree because the financial condition of the parties was essentially equal. The courts recognize the inherent power of a trial judge to award attorney's fees in domestic relations proceedings. See Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000). In determining whether to award attorney's fees, the trial judge must consider the relative financial abilities of the parties. Id. However, attorney's fees in divorce and support cases are not awarded as a matter of right but rest with the trial judge's discretion; his decision will not be disturbed unless that discretion is abused. Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983). In Jablonski, supra, this court reversed an award of attorney's fees in a divorce case where the trial court failed to consider the relative financial positions of the parties even though the trial court had made an equal division of the marital property. In the present case, we believe that the trial court did consider the parties' financial condition when it relied on the fact that appellant was without income, except for child support and income from the marital property, and that appellee had an income stream in concluding that appellee should pay a $2,500 fee. We affirm on this point.

For his second point, appellee argues that the trial court erred in finding that a tractor, two attachments for the tractor, and the cattle herd were marital property instead of his separate property. Appellee contends that the items were replacements for similar items he owned prior to marriage and were therefore his separate property under Ark. Code Ann. § 9-12-315(b)(2) (2002). That section excludes from the definition of "marital property" any property that was acquired in exchange for property acquired prior to marriage. The trial court's letter opinion discussed these items as follows:

Appellee argues that he and his witnesses presented evidence in support of his claim that the items were replacements for property he owned prior to marriage. However, appellee ignores evidence that appellant presented to the contrary, such as that appellee paid his father for the disk during the marriage in order to keep another farmer from borrowing it, that appellee did not own any cattle when the parties married, and that a tax return indicated that the older tractor, replaced by the 1995 tractor, was actually purchased in 1992, after the marriage.2 Appellee's mother testified that appellee had cattle prior to his marriage but also admitted that her husband and appellee had commingled their cattle. Appellee testified that there were periods when he did not have cattle because he would sell the herd and purchase more cattle a few months later. Appellee also testified that he may have forgotten to depreciate the cattle on his 1989 tax return, the last return prior to the marriage. Appellee also stated that the tax return was incorrect in showing the older tractor that was replaced as being purchased in 1992 but offered no proof of the correct purchase date. The burden was on appellee to establish that the farm equipment and cattle were his separate nonmarital property. Davis v. Davis, supra; Aldridge v. Aldridge, 28 Ark. App. 175, 773 S.W.2d 103 (1989). The trial judge's findings as to the circumstances warranting a property division will not be reversed unless they are clearly erroneous. Dennis v. Dennis, 70 Ark. App. 13, 13 S.W.3d 909 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed. Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001). The trial court's decision was, effectively, a decision that appellee failed to prove that the farm equipment and cattle were his separate property. The trial court heard the conflicting testimony. When the evidence is evenly poised, judgment shall be against the party with the burden of proof. See Hays v. Williams, 115 Ark. 406, 171 S.W. 882 (1914); see also Ark. Code Ann. § 16-40-101 (1999). We affirm on this point.

In his third point, appellee argues that the trial court erred in awarding custody of the minor children to appellant. We give a trial judge's custody decision much deference and will not reverse his findings unless they are clearly erroneous. Taylor v. Taylor, 345 Ark. 300, 47 S.W.2d 222 (2001). There is no other case in which the superior position, ability, and opportunity of the trial judge to observe the parties carries a greater weight than one involving the custody of minor children. Id. The best interest of the child is the polestar in every child-custody case; all other considerations are secondary. Id.

Here, appellee cites testimony from witnesses that, he contends, supports an award of custody to him. The trial court relied upon the fact that appellant had been the primary caregiver for the children, a proper consideration. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). The trial court also made note of appellee's drinking alcohol and prohibited the consumption of alcohol around the children. This issue clearly turned upon the trial court's superior position to determine the credibility of witnesses and the weight of their testimony. Taylor, supra. Given the deference due the trial court's credibility determinations, we affirm.

Affirmed.

Gladwin and Robbins, JJ., agree.

1 According to the tax returns, the company's taxable income was $11,100 in 2001; $171,024 in 2000; $37,750 in 1999, with a cash flow of $155,000; $188,574 in 1998, with a cash flow of $320,000. The 1997 taxable income was $9,015, after a net operating loss of $81,776 was carried over from 1996.

2 Moreover, appellee testified that he sold the premarital tractor and used the money received to pay part of the purchase price of the new tractor. In such a situation where both marital and nonmarital funds are used, the tractor would be both marital and nonmarital. See Williford v. Williford, supra; Jablonski, supra. Under Ark. Code Ann. § 9-12-315(a)(2) (2002), all separate property is to be returned to the party who owned it prior to the marriage unless the court deems some other division to be equitable. The tractor could have been found to be marital property, and the trial court could still have reached the same result under the statute.