Preview:

REL:

3/25/11

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2010-2011 _________________________ 2090894 _________________________ Charles Mitchell v. Elaine Mitchell _________________________ Elaine Mitchell v. Charles Mitchell Appeals from Franklin Circuit Court (DR-09-41) BRYAN, Judge.

2090894 Charles Mitchell ("the husband") appeals from a judgment divorcing him from Elaine Mitchell ("the wife"), and the wife cross-appeals from that judgment. With respect to the appeal, we affirm in part, reverse in part, and remand with

instructions. With respect to the cross-appeal, we affirm. The husband and the wife married in 1992 and separated in 2008. They have one child ("the child"), a son, who was born in 1994. In 2009, the husband sued the wife for a divorce on the ground sought a of incompatibility. Counterclaiming, the wife on a the grounds trial of at incompatibility which it and

divorce

adultery.

Following

bench

received

evidence ore tenus, the trial court entered a judgment that, among other things, divorced the parties on the ground of incompatibility; awarded the wife primary physical custody of the child; awarded the husband visitation with the child; imputed gross income in the amount of $10,875 per month to the husband; ordered the husband to pay child support in the amount of $1,131 per month; ordered the husband to maintain a policy of health insurance covering the child; ordered the husband to pay periodic alimony in the amount of $1,500 per month; found that the funds in a USAA checking and savings

2

2090894 account and the funds in a Frank Templeton account were funds the husband had inherited from his mother and awarded them to the husband; divided the parties' marital property; and

awarded the wife 50% of the husband's retirement benefits. Following the entry of the judgment, both parties filed postjudgment motions. The husband's postjudgment motion

challenged, among other things, the calculation of his monthly child-support payment, the amount of alimony awarded the wife, the division of the parties' marital property, and the award of 50% of his retirement benefits to the wife. Among other things, the wife's postjudgment motion challenged the finding that the funds in the USAA checking and savings account were inherited by the husband from his mother and the award of those funds to the husband. The trial court denied both postjudgment motions; the husband then appealed to this court, and the wife cross-appealed. Because the trial court received evidence ore tenus, our review is governed by the following principles: "'"'[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.'"' Water Works & Sanitary Sewer Bd. v. Parks, 977 So. 2d 440,
3

2090894 443 (Ala. 2007) (quoting Fadalla v. Fadalla, 929 So. 2d 429, 433 (Ala. 2005), quoting in turn Philpot v. State, 843 So. 2d 122, 125 (Ala. 2002)). '"The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment."' Waltman v. Rowell, 913 So. 2d 1083, 1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So. 2d 77, 79 (Ala. 1985)). 'Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge's conclusions of law or the incorrect application of law to the facts.' Waltman v. Rowell, 913 So. 2d at 1086." Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So. 2d 924, 929 (Ala. 2007). The husband first argues that the trial court erred in calculating his monthly child-support payment because, he says, the trial court did not impute income to the wife. "The trial court is afforded the discretion to impute income to a parent for the purpose of determining child support, and the determination that a parent is voluntarily unemployed or underemployed 'is to be made from the facts presented according to the judicial discretion of the trial court.' Winfrey v. Winfrey, 602 So. 2d 904, 905 (Ala. Civ. App. 1992). See also Rule 32(B)(5), Ala. R. Jud. Admin." Clements v. Clements, 990 So. 2d 383, 394 (Ala. Civ. App. 2007). In the case now before us, the trial court had before it evidence from which it could have reasonably found that the parties had agreed in 2004 or 2005 that the wife would stay at

4

2090894 home to get the child ready for school in the morning and to take care of him when he came home from school in the

afternoon instead of working; that she had not worked since 2004 or 2005 because of that arrangement; and, therefore, that the wife was not voluntarily unemployed. Accordingly, we conclude that the trial court's refusal to impute income to the wife did not exceed its discretion. See Clements. The husband also argues that the trial court erred in calculating his child-support obligation because, he says, the trial court did not include the premium he must pay in order to maintain health-insurance coverage for the child ("the premium") in its calculation of his child-support obligation. However, given the circumstances in this particular case, the failure of the trial court to include the premium in its calculation of the husband's child-support obligation

constituted harmless error. In pertinent part, Rule 32(C)(2), Ala. R. Jud. Admin., provides: "A total child-support obligation is determined by adding the basic child-support obligation [as determined by using the Schedule of Basic ChildSupport Obligations appended to Rule 32], workrelated child-care costs, and health-insurance costs. The total child-support obligation shall be
5

2090894 divided between the parents in proportion to their adjusted gross incomes. The obligation of each parent is computed by multiplying the total childsupport obligation by each parent's percentage share of their combined adjusted gross income. ..." In the case now before us, the wife was unemployed and the trial court refused to impute income to her. Thus, the trial court implicitly determined that the husband earned 100% of the parties' income and should be responsible for providing 100% of the child's support. Because there are no work-related child-care costs,1 100% of the child's support under Rule 32(C)(2) equals the basic child-support obligation, which in this case is $1,131 per month, plus the premium.2 Although the trial court did not include the premium in its calculation of the husband's child-support obligation, it ordered the husband to maintain health-insurance coverage for the child in a

Because the wife does not work, she is free to care for the child when he is not in school. The trial court imputed gross income in the amount of $10,875 per month to the husband. The husband has not challenged the trial court's imputation of that amount of income to him. "When an appellant fails to argue an issue in its brief, that issue is waived." Boshell v. Keith, 418 So. 2d 89, 92 (Ala. 1982). The Rule 32 Schedule of Basic ChildSupport Obligations specifies a basic child-support obligation of $1,131 for one child when the parents have a combined adjusted gross income in the amount of $10,875.
6
2

1

2090894 provision of the judgment that was separate from the childsupport provision. By requiring the husband to maintain the health-insurance coverage for the child, the trial court required the husband to pay the premium. Thus, through two provisions of the judgment, i.e., the child-support provision ordering the husband to pay child support in the amount of $1,131 and the provision requiring him to maintain the healthinsurance coverage for the child, the trial court required the husband to pay the same amount he would have been obligated to pay if the trial court had included the premium in its calculation of the child-support obligation, i.e., the basic child-support obligation in the amount of $1,131 plus the premium. Therefore, the trial court's error in failing to include the premium in the calculation of the husband's childsupport obligation was harmless. See Rule 45, Ala. R. App. P. ("No judgment may be reversed or set aside ... in any civil ... case ... for error as to any matter of ... procedure, unless in the opinion of the court to which the appeal is taken ..., after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."). We reached the

7

2090894 same conclusion in Clements when the father was responsible for providing 100% of the children's support and the trial court, although it failed to include the amount the father would pay for the children's health insurance in its

calculation of the father's child-support obligation, ordered the father to pay for the children's health insurance. See Clements, 990 So. 2d at 395. The husband also presents several arguments challenging the award of 50% of his retirement benefits to the wife. One of those arguments is that that award should be reversed because the wife did not prove the amount of retirement benefits he had acquired during the marriage. We agree. Section 30-2-51(b), Ala. Code 1975, provides: "The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met: "(1) The parties have been married for a period of 10 years during which the retirement was being accumulated. "(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
8

2090894 "(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court." (Emphasis added.) This court has stated: "A reading of

Download 2090894.pdf

Alabama Law