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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2010-2011

2090587

Robert Ford B u r k e t t v. Anne Winkler B u r k e t t Appeal from Madison C i r c u i t (DR-07-351) Court

PITTMAN,

Judge. Ford Burkett ("thehusband") appeals from a

Robert

j u d g m e n t d i v o r c i n g h i m f r o m Anne W i n k l e r that, among other things, divided

Burkett

("the w i f e " ) marital of the

the parties' p h y s i c a l custody

property

and a s s e t s , awarded p r i m a r y

2090587
parties' children to the wife, and o r d e r e d t h e husband to pay policy

c h i l d s u p p o r t and t o m a i n t a i n a $500,000 l i f e - i n s u r a n c e for the b e n e f i t The during son, parties of the were children. i n 1 9 9 1 ; two was children born

married

were

born and a

t h e m a r r i a g e : a d a u g h t e r , who was as born an the i n 1998. agent the The and

i n 1994 been

who

husband an

had

selfbanker his

employed throughout

insurance marriage;

investment

evidence established $3,105.50 i n 2007 and employed by

that

g r o s s m o n t h l y income had been in 2008. The wife had been

$3,666.17 County the

the Madison

C o m m i s s i o n f o r most o f t h e m a r r i a g e ; a t t h e t i m e o f t r i a l , w i f e was s e r v i n g as t h e c o u n t y ' s e c o n o m i c - d e v e l o p m e n t

director

and had e a r n e d a m o n t h l y g r o s s income o f $5,235.43 $5,470.54 In i n 2008. 2007, the husband filed a

i n 2007 and

March

complaint

seeking, joint

among o t h e r t h i n g s , legal and physical of the

a divorce from the w i f e , custody of the and

an a w a r d o f an

children, an

equitable of filed the a of

division marital

marital The wife

assets, filed an

allocation also

debts.

a n s w e r ; she

counterclaim the children,

i n w h i c h she

sought primary

physical

custody

an a w a r d o f c h i l d

s u p p o r t , an e q u i t a b l e

division

2

2090587
o f t h e m a r i t a l a s s e t s and an award of attorney instruct the allocation The wife of the m a r i t a l debts, also requested the that and the

fees.

trial

court

the p a r t i e s to s p l i t of was the

household

costs

equally A

during pendente the of

pendency order

divorce

action. in June 2007 during the that the wife to and in who and

lite

entered the

instructed pendency requested assess the

p a r t i e s to m a i n t a i n litigation. trial of the court In

s t a t u s quo 2008, special

the the

January a

that

appoint

master agency matter, master

value

husband's

insurance on the

investment October was the at

business. the trial

Following court

a hearing

2008,

appointed the

a special

i n s t r u c t e d to

determine

both

"fair

market v a l u e "

" f a i r v a l u e " of the husband's b u s i n e s s e s the divorce a trial. Subsequently, judgment against the

for consideration filed a motion his

wife

seeking

contempt

the

husband

for

a l l e g e d f a i l u r e to maintain expenses the the rata trial pendente court lite.

t h e s t a t u s quo

regarding

household 2009,

Following the

a hearing lite

i n March by

modified share the

pendente

order

ordering on a pro

p a r t i e s to basis.

monthly household i n s t r u c t e d the checking

expenses to

The

order

husband account,

deposit

$1,437.08 m o n t h l y i n t o

a joint

d i r e c t e d the

3

2090587
wife to deposit $3,353.17 monthly be into the same account, and

mandated t h a t a l l monthly b i l l s required The October that accurate trial records was

p a i d from that account, a c c o u n t be

of t h a t

maintained. and the

divorce 1,

c o n d u c t e d b e t w e e n S e p t e m b e r 29 that ore tenus proceeding, the

2009.

During

p a r t i e s , t h e c h i l d r e n ' s p a t e r n a l g r a n d m o t h e r , and teenaged daughter testified. and Dr. In addition, John

parties' a

McKinney,

vocational evaluator, testified. D u r i n g the experienced daughter's fly he into stated trial,

Joan K e r r ,

a child

psychologist,

the husband t e s t i f i e d about He the parties' that the him

t h a t he

had during

first the

concerns infancy.

marriage wife and would

stated

typically objects; about wife's he and one had the

hysterical that,

rages,

hitting

throwing

although f o r the

those

rages of

had the

occurred marriage, until, any by

only the

once each y e a r temper had

first

part

become could

progressively not tolerate her

worse

2005, longer

reportedly

tantrums

began p l a n n i n g

to seek a d i v o r c e .

The

husband s t a t e d t h a t the was fact t h a t he of

of h i s ongoing problems w i t h been reared as a Methodist

t h e w i f e was and that she

a member

4

2090587
Christian "strange" Science faith. factor the in the husband's decision to seek a Church, which he considered to be a

Another divorce with been the was

wife's The

allegedly deteriorating relationship husband and asserted that the wife had the

daughter. toward

abusive

him

the

daughter

throughout

m a r r i a g e ; h o w e v e r , he a d m i t t e d t h a t t h e w i f e h a d n e v e r i n j u r e d him physically. problems with The had the husband been wife. contended caused He by that her that the daughter's

school

deteriorating he could not over had

relationship tolerate

stated and

the arguments

between the w i f e

the daughter t h a t he

s c h o o l w o r k and c u r f e w s , and, b a s e d upon h i s b e l i e f a better changed physical The for relationship with his custody the daughter, to seek an the

husband of

orally primary

request

award

custody of the c h i l d r e n . wife stated that she had been the p r i m a r y She also caregiver testified years

the c h i l d r e n throughout the marriage.

t h a t she had been w o r r i e d before finally by taking the

about the daughter f o r s e v e r a l daughter Dr. have to a child

the

psychologist the wife

recommended thought the

husband, might

Kerr.

Initially, deficit

daughter

attention

disorder

5

2090587
("ADD"), but she learned that the daughter ("ODD"). That suffered problem from had

oppositional

defiant

disorder

caused the daughter t o defy in school because she would

her teachers not complete

and t o f a i l

subjects The

h e r homework.

wife loud

stated that, although confrontations

she and t h e d a u g h t e r had engaged i n the daughter i n school was presently after

i n the past,

learning receiving request

t o do w h a t was e x p e c t e d Dr. Kerr's help.

a n d a t home

The w i f e primary

reasserted

at t r i a l her of the

that

she be a w a r d e d

p h y s i c a l custody

children. The wife testified that she had t r i e d t o encourage the that

h u s b a n d t o f i n d more l u c r a t i v e e m p l o y m e n t , b u t s h e s t a t e d he had r e s i s t e d . She n o t e d that that, during discovery

f o rthe

divorce, more that her. than of than

she had l e a r n e d he p a i d himself

the husband had p a i d h i s business, the family

his staff

from

and she s t a t e d had disgusted less

h i s unwillingness She a c c u s e d he c o u l d

to support

the husband to force

of i n t e n t i o n a l l y h e r t o pay most, The wife

earning

i n order

i fnot a l l , and t h e

the household admitted

expenses. during

testified, that

husband had

cross-examination, the t r i a l

the husband lite

failed

t o comply

with

court's

pendente

6

2090587
order trial. to pay The as one-third wife's of the family's living that for into the not expenses husband paying before owed those without

documentation to her

$23, 624.58 household objection. The during school nights

reimbursement was

expenses

admitted

evidence

children's

paternal had

grandmother

testified

that,

t h e m a r r i a g e , she and a had

r e g u l a r l y kept the supper f o r the that,

children after two

often provided She the stated

whole f a m i l y the

week. the wife,

although

daughter better the the

disobeyed able to

paternal

g r a n d m o t h e r had behavior. In

been

control

the

daughter's stated issues wife that

addition, that

paternal daughter's

grandmother personality with the

that

she

believed from her the

stemmed

tempestuous daughter's several arm,

relationship early

dated back to that she

childhood. when her or the

She wife

said had into

remembered the

occasions digging

grabbed the the arm

daughter's the The a more

fingernails to

to

get

daughter's paternal calming was work

attention

discipline

daughter. exerted

g r a n d m o t h e r o p i n e d t h a t the h u s b a n d had influence a retired on the d a u g h t e r and she

s u g g e s t e d t h a t , b e c a u s e she could help the husband

schoolteacher,

7

2090587
through primary The the daughter's academic problems i f he received

p h y s i c a l custody of the c h i l d r e n . daughter's t e s t i m o n y was surprisingly mild in light

of the husband's c o n t e n t i o n s emotionally that the abused had her. never

that the wife the

had p h y s i c a l l y and daughter but related had only a or

Essentially, truly

wife

injured and when

her,

scratched ruler.

h e r arm

w i t h her f i n g e r n a i l s testified that

spanked she

her with

The

daughter

misbehaved

performed poorly privileges than that resort the

i n school, her

the wife would

customarily

remove rather

or r e s t r i c t to

extracurricular activities The daughter her

corporal had

punishment.

testified her well not was

husband

made an

agreement

with

to give

certain in

privileges

i f she d i d h e r homework and p e r f o r m e d the daughter stated, she was still

school.

However,

completing failing almost had

a l l of h e r homework and, subjects. disciplined She

at the time of t r i a l , noted that the

several never had

also

husband she

her,

regardless daughter

of whether also

disobeyed his instructions.

The

testified have the

that,

a l t h o u g h she knew b o t h p a r e n t s l o v e d h e r , she w o u l d and l e s s s t r u c t u r e i f she were to l i v e with

more f r e e d o m husband.

8

2090587
Dr. had been Kerr, hired the daughter's by the wife counselor, testified and that treat she the The her

to help

diagnose

daughter before wife

the husband f i l e d asked the Dr. Kerr

h i s divorce complaint. to and help to her improve the

specifically with

relationship improve ruled

daughter

help

daughter had and the

her grades

and p e r f o r m a n c e diagnosed disorder.

i n school.

Dr. Kerr with ODD that

o u t ADD

but had explosive a

the daughter Dr. Kerr of

intermittent daughter defiance had of

noted

long-standing

pattern for

poor

cooperation, hysterical

rules,

disregard

authority,

o u t b u r s t s , and temper t a n t r u m s . being aggressive she with often her

The d a u g h t e r h a d a h i s t o r y o f and other adults; in and acted

teachers

addition, aggressively In

verbally

denigrated, and h e r

toward,

her younger b r o t h e r two and

parents. years of

reviewing

the daughter's noted that

one-half had

treatment, exhibited daughter's follow

Dr. Kerr poor

the husband in

continuously with the to

parenting

techniques concluded

dealing

problems; Dr. Kerr procedures

that

his refusal

recommended

had r e i n f o r c e d the Dr. Kerr

daughter's that, had

oppositional historically,

tendencies. the husband and

testified

the paternal

grandmother

9

2090587
allowed the daughter to act out and t o engage in verbal and

p h y s i c a l a g g r e s s i o n w i t h o u t any a t t e m p t

t o d i s c i p l i n e h e r , and more difficult. to work to had

h a d t h e r e b y made t h e w i f e ' s p a r e n t i n g e f f o r t s Dr. Kerr concluded with the that the husband's

inability

together support

the wife

to set appropriate boundaries mental-health treatment

and

daughter's

program

ultimately that, placed

delayed

the daughter's daughter

recovery. probably

Dr. K e r r request

opined to be

i f asked,

the

would

i n the custody

o f t h e h u s b a n d b e c a u s e he w o u l d l e t h e r and w o u l d n o t g i v e h e r t h e needed. he
1

do w h a t e v e r s h e w a n t e d or structure McKinney evaluate noted the t h a t she

discipline

stated that earning

had

been of

hired

by

the wife

to

capability

the

husband.

McKinney a

t h a t t h e h u s b a n d was

50 y e a r s

o l d , t h a t he h a d e a r n e d

master's he his had

degree i n economics from Fordham U n i v e r s i t y , and t h a t been employed agency i n the banking i n 1991. At industry before the time of opening the and upon

insurance

trial, company Based

h u s b a n d was served

a l s o t h e s o l e o w n e r o f an of d i r e c t o r s

investment bank.

on t h e b o a r d

of a l o c a l

the husband's
1

e d u c a t i o n and p r o f e s s i o n a l e x p e r i e n c e ,

McKinney

I n t e r e s t i n g l y , at t r i a l , the daughter a c t u a l l y t h a t she w o u l d p r e f e r n o t t o l i v e w i t h e i t h e r p a r e n t .
10

opined

2090587
s t a t e d t h a t he c o u l d e a r n b e t w e e n $ 4 0 , 0 0 0 a n d working based on directly the for a major years insurance $42,000 a n n u a l l y In fact,

company.

husband's

of e x p e r i e n c e

in that industry, a s a l a r y i n the because of and

M c K i n n e y s t a t e d t h a t he w o u l d m o r e l i k e l y range the of $62,000 to $70,000 p e r year.

earn

Moreover, in the

husband's

management

experience

financial the

investment could earn

industries, between

McKinney $90,000 and

testified $113,000 bank. master's value fair The the

that

husband in a

annually

management p o s i t i o n According husband's insurance the to

with the

a local special the fair the

valuation of the

of

the

businesses, a g e n c y was firm

husband's of

$500 a n d was

value

of h i s share also

investment a

$170,000. with

husband paternal

jointly

owned

commercial

building

grandmother; appraised commercial share

t h a t b u i l d i n g h o u s e d h i s two at a value of $520,000.

businesses The debt

and had been on that

owed

b u i l d i n g was of the

a p p r o x i m a t e l y $139,000; thus, the husband's in that building by was ^'^). approximately The wife asked

equity

$190,500 that she

( $ 5 2 0 , 000 be awarded

- $ 1 3 9 , 000 one-half

divided of the

marital

interest

i n those

assets.

11

2090587
The had been wife testified that, although $178,000, the m a r i t a l needed residence of

appraised $20,000 The

at

i t

repairs

approximately for sale.

before

i t c o u l d be p l a c e d on t h e m a r k e t owed The about wife $45,000 asked that on that be

parties

still

property

at the time

of t r i a l .

she

a l l o w e d t o buy t h e husband's i n t e r e s t so that she could continue raising

i n the m a r i t a l the c h i l d r e n in

residence familiar

surroundings. In judgment November that 2009, the trial legal court custody entered a divorce to

awarded

joint

of the c h i l d r e n

the p a r t i e s but awarded p r i m a r y The h u s b a n d was and ordered The to awarded s t a n d a r d pay monthly

p h y s i c a l custody visitation support

to the w i f e . children of

with the i n the

child

amount

$660.

w i f e was

instructed

to maintain

medical-insurance were instructed to

coverage equally

on t h e c h i l d r e n , share

and t h e p a r t i e s

any o f t h e c h i l d r e n ' s u n c o v e r e d h e a l t h - r e l a t e d ordered to maintain life-insurance as primary child

expenses.

The h u s b a n d was

coverage of at l e a s t beneficiaries support. f o r as

$500,000 long as

listing he was

the c h i l d r e n

o b l i g a t e d t o pay

12

2090587
The ordered equity judgment awarded the m a r i t a l residence to the wife, of the a

her t o pay

the husband

$40,000

f o r h i s share

i n the residence, deed c o n v e y i n g 30 days. of

and o r d e r e d t h e husband t o e x e c u t e his interest The husband i n the residence was awarded in the 100%

warranty wife

to the of h i s

within

interest

i n both

h i s businesses

and

commercial

p r o p e r t y that housed h i s businesses. were each awarded a l l interest The

The h u s b a n d a n d t h e w i f e various bank names, moneys individual accounts but held the in

in their was

retirement opened parties their life"

accounts.

husband

awarded

i n h i s own were

name to

and

his businesses' divide the

ordered checking

equally

joint

a c c o u n t and The was Each

invested wife was

in their awarded

"wholemotor

insurance and

policies.

one

vehicle, four list to

the husband and boat.

awarded party

the p a r t i e s ' was awarded a

remaining specific ordered and two each other

vehicles

of p e r s o n a l one-half was

and h o u s e h o l d i t e m s . o f two specific

E a c h p a r t y was debts, on

pay

credit-card

party

ordered

to pay

a l l the

indebtedness

credit-card Both a

accounts. filed p o s t j u d g m e n t m o t i o n s , and, amended the judgment following to clarify

parties the

hearing,

trial

court

13

2090587
which which c r e d i t - c a r d debts were t o be split were t o be paid individually the parties. and In

equally

between

addition, Kawasaki

the husband four-wheel

was s p e c i f i c a l l y

awarded

the parties' was

all-terrain items

vehicle,

and t h e w i f e

awarded f o u r s p e c i f i c also instructed a new to loan

of marital property. the marital and

The w i f e was residence to hold by by the that

refinance solely

obtaining husband

i n h e r name debt

harmless The award,

as t o any r e m a i n i n g husband, the on appeal,

secured

property. custody

challenges division, insurance

the

childthe

marital-property $500,000 i n l i f e

and

requirement children's When

to maintain minority. appellate that was

during the

courts based

review upon

a

child-custody presented ore "'A oral on

determination tenus, custody testimony appeal.'"

evidence

we p r e s u m e t h e t r i a l determination i s Ex accorded parte Phillips

court's

decision i s correct: court entered of 2d upon

of the t r i a l a

presumption 646 So.

correctness 46,

Perkins,

47 ( A l a .

1994)(quoting Civ.

v. P h i l l i p s ,

622 S o . 2 d 4 1 0 , 412 ( A l a . i s based on t h e trial and

App. 1 9 9 3 ) ) .

"This

presumption

court's unique p o s i t i o n

to directly

observe the witnesses

14

2090587
to assess their demeanor and credibility. ... 'In child trial So. So.

custody judge 2d 2d

cases e s p e c i a l l y , great

the p e r c e p t i o n Williams 1981)." Ex

o f an a t t e n t i v e v. Williams, Fann, 402 810

i s of 1032 633

importance.'

1029, 631, The

( A l a . C i v . App. (Ala. 2001). summarizes says,

parte

husband t h a t , he the

in

his

brief

to

this

court

the wife of the The was

testimony had abused

supports and had

his contention been He the

t h a t the

daughter

underlying out

cause that

daughter's mental-health d a u g h t e r had problem equally with expressed the

issues.

also points

a d e s i r e to l i v e w i t h the husband. contention indicating is that by that the the there

husband's testimony had the

probative

daughter's husband's the wife in

mental-health failure setting

issues

been

exacerbated to

to d i s c i p l i n e academic we

d a u g h t e r and Rather

support the

goals.

than belabor that custody the

conflicting court -is i t

testimony, in the best the do

simply position

acknowledge to and make a

"[t]he t r i a l

determination

hears courts

evidence not ore Ex s i t in tenus parte

observes of the 67 6

witnesses. evidence in a

Appellate that was

judgment before Bryowsky,

disputed trial So.

presented hearing."

court 2d

custody (Ala.

1322,

1324

15

2090587
1 996); 1994). see also Ex parte Perkins, based 646 on So. 2d 4 6, 47 (Ala.

Factual

determinations

conflicting court. App.

evidence C.B.B. Based trial

are w i t h i n the v. J.S.D., 831

sound d i s c r e t i o n of the So. 2d 620, 622 we

trial

See

(Ala. Civ. cannot to

2002). that the

upon the court

record in the

presented,

conclude award

erred of

i t s determination c h i l d r e n to the

primary

physical

custody The divided

wife. trial court inequitably

husband a l s o a s s e r t s t h a t the the parties' marital assets.

"The t r i a l c o u r t i s a f f o r d e d a wide degree of d i s c r e t i o n i n d i v i d i n g the m a r i t a l a s s e t s of the p a r t i e s u p o n d i v o r c e . M o o d y v . M o o d y , 641 So. 2d 818 (Ala. C i v . App. 1994). The o n l y l i m i t a t i o n on t h a t discretion i s that the division of property be e q u i t a b l e under the circumstances of the p a r t i c u l a r c a s e , and t h e t a s k o f d e t e r m i n i n g what i s e q u i t a b l e f a l l s t o t h e t r i a l c o u r t . R o s s v . R o s s , 447 So. 2d 812 ( A l a . C i v . App. 1 9 8 4 ) . T h i s c o u r t must c o n s i d e r t h e i s s u e s o f p r o p e r t y d i v i s i o n and a l i m o n y t o g e t h e r when r e v i e w i n g the d e c i s i o n of the trial court, A l b e r t s o n v . A l b e r t s o n , 678 So. 2d 118, 120 (Ala. Civ. App. 1995), and, because the facts and circumstances of each d i v o r c e case are different, t h i s c o u r t must a l s o c o n s i d e r the p a r t i c u l a r f a c t s and c i r c u m s t a n c e s of the case b e i n g r e v i e w e d . Murphy v. M u r p h y , 624 So. 2d 620 , 623 (Ala. Civ. App. 1993). In making the d i v i s i o n , the t r i a l c o u r t may consider s e v e r a l f a c t o r s , i n c l u d i n g the p a r t i e s ' respective present and future earning capacities, t h e i r age a n d h e a l t h , t h e i r c o n d u c t , t h e d u r a t i o n o f t h e m a r r i a g e , and the value and type of m a r i t a l p r o p e r t y . L u t z v . L u t z , 485 So. 2d 1174 (Ala. Civ. App. 1 9 8 6 ) . The p r o p e r t y d i v i s i o n made b y t h e t r i a l 16

2090587
court w i l l n o t be s e t a s i d e on a p p e a l p a l p a b l e abuse o f t h a t d i s c r e t i o n . I d . " Cantrell 2000); 2003). Although the husband contends was that the t r i a l we court's note court the has v. C a n t r e l l , 773 S o . 2 d 4 8 7 , 4 8 9 - 9 0 Foley, absent a

( A l a . C i v . App.

see a l s o

Ex p a r t e

864 S o . 2 d 1 0 9 4 , 1097 ( A l a .

marital-property statement the

division

erroneous,

i n C a n t r e l l to the e f f e c t that to consider The of numerous makes

the t r i a l when of

discretion

factors much

dividing overall i n the monetary that the

marital monetary divorce

property. percentages judgment;

husband marital

the

property

awarded

i n focusing

solely

on t h e r e l a t i v e to perceive

p e r c e n t a g e s e a c h p a r t y r e c e i v e d , he f a i l s trial wife court much that

a w a r d e d h i m m o r e t h a n he r e q u e s t e d less than what she had sought.

and awarded t h e The husband because 3/4

contends the to wife

the property

division

was

inequitable

was a w a r d e d ,

by h i s c a l c u l a t i o n s , a p p r o x i m a t e l y However, the wife the evidence had been between to

4/5 o f t h e m a r i t a l e s t a t e . trial wage indicated that earner

from the

lengthy primary the

the family's a n d 3/4 o f the m a r i t a l

and had p r o v i d e d by the p a r t i e s the wife 17

2/3

funds

expended

acquire

assets.

In a d d i t i o n ,

adduced

evidence i n d i c a t i n g

2090587
that the husband doing the so had in systematically order to place on the a underpaid greater himself, burden of

apparently defraying

household the

expenses was

wife. a l l of jointly his marital the and the the party

Moreover, interest paternal the i n the

husband

awarded

c o m m e r c i a l b u i l d i n g he his personal

owns w i t h accounts, review of that

grandmother, in his not assets any so two

retirement A simple

equity

businesses. the

numbers division requested

does of

support

husband's the

contention wife.

unfairly of

favored the

Neither

portion (using the

other

party's and

retirement both of to

accounts, parties' assets the

husband's the

figures

removing allocation

retirement

accounts) $245,619 t o the the

following wife and

i s revealed: Under of

the

$250,113.55 that

husband. division an

circumstances parties' property as to

presented, assets We

nearly be that

equal

remaining division. issue the

cannot

considered the

erroneous contention also

conclude

husband's The

this that

i s without court

merit. erred in by
2

husband him to

asserts his

trial

ordering acquiring

"secure"

child-support i n the

obligation

l i f e - i n s u r a n c e coverage

amount of

$500,000.

We court's
2

n o t e t h a t t h e h u s b a n d does n o t a s s e r t t h a t t h e t r i a l l i f e - i n s u r a n c e mandate i s an i m p r o p e r d e v i a t i o n f r o m
18

2090587
The A l a b a m a Supreme C o u r t has are commonly as previously as stated that "[m]inor of life to 186 life

children insurance an n.4 order

designated 'an

beneficiaries

policies

a s p e c t of c h i l d s u p p o r t ' p u r s u a n t Whitten, a party minor 592 So. 2d 183, a

of d i v o r c e . "

W h i t t e n v.

(Ala. 1991).

"Whether to o r d e r benefit of

to maintain children is

insurance the So.

p o l i c y f o r the the

within 860

d i s c r e t i o n of 2d The 1283, 1288

trial

court." App.

K i r k l a n d v. 2003). assertion

Kirkland,

(Ala. Civ. of the

thrust

husband's

regarding total

the

insurance support However, the

requirement obligation the trial has to had and

i s that,

i n his view, be

his

child-

cannot court a

possibly

more tending

than to his

$61,000. show that

heard

evidence of not and

husband

history

meeting may

financial concluded owe In

obligations that will the be

f o r the that pre-

family the and

w e l l have will

total

amount by

husband

eventually interest. age of

enhanced the

postjudgment not the reach the

addition, until

younger c h i l d w i l l 2017, and, during

majority the

July

intervening is upwardly Moreover,

years,

husband's based upon

child-support the usual

obligation

modifiable the husband

considerations.

the

r e q u i r e m e n t s o f R u l e 3 2 ( A ) , A l a . R.
19

Jud.

Admin.

2090587
may the be r e q u i r e d t o p a y p o s t m i n o r i t y c h i l d r e n reach to secure the those age educational and support obtaining be after life

of m a j o r i t y ,

insurance if not

payments

a t a g e 58 may

difficult,

impossible. we might not have decided to levy a similar

Although insurance prevents on the

r e q u i r e m e n t on t h e h u s b a n d , n o t h i n g

i n the judgment

t h e h u s b a n d f r o m n a m i n g t h e c h i l d r e n as b e n e f i c i a r i e s existing Although insurance policies awarded to him in the

divorce. value have

the record contains evidence of the policies,

present

of the p a r t i e s ' w h o l e - l i f e insurance the face value of those policies;

we do n o t that the

i t is likely

face value equal the we

of the p r e e x i s t i n g p o l i c i e s

awarded to the husband Because issue,

o r e x c e e d t h e amount o r d e r e d not presented that the

by t h e judgment. e r r o r as t o t h i s

husband has

record

cannot conclude by ordering with

the t r i a l husband to

court

committed r e v e r s i b l e his child-support

error

secure

obligation The addition, attorney which,

$500,000 court's asks

i n l i f e - i n s u r a n c e coverage. i s due t o be affirmed. In

trial

judgment this

the wife fees

court

f o r an a w a r d court's settled

o f $5,000 i n (as t o each

f o r defending the law

the t r i a l i s well

judgment regarding

she

claims,

20

2090587
issue raised). The w i f e ' s r e q u e s t i n t h e amount f o r an a t t o r n e y - f e e a w a r d o f $2,500.

on a p p e a l

i s granted

AFFIRMED. Thompson, Moore, writing, P . J . , a n d Thomas, i n part J . , concur. and dissents i n part, with

J . , concurs Bryan,

which

J., joins.

21

2090587 MOORE, J u d g e , c o n c u r r i n g I court's concur with the to i n p a r t and majority's extent dissenting in part. affirmance that i t of the trial

judgment

the

awarded

primary the the the life

p h y s i c a l custody of the p a r t i e s ' property. majority's extent

c h i l d r e n t o t h e w i f e and

divided

I r e s p e c t f u l l y d i s s e n t , h o w e v e r , as t o of the the trial court's to judgment "maintain to

affirmance i t

that

requires

husband

insurance amount

i n s u r i n g h i s l i f e and p r o v i d i n g d e a t h b e n e f i t s i n an less than $500, 000.00 with the parties' minor

not

children being designated l o n g as c h i l d

as t h e p r i m a r y b e n e f i c i a r i e s , f o r so

support i s payable hereunder." whether to require a parent to maintain a

"Generally, life insurance

p o l i c y f o r the b e n e f i t of h i s [ o r h e r ] sound d i s c r e t i o n of the t r i a l So. 2d 403, 412 ( A l a . C i v . App.

minor

c h i l d r e n i s w i t h i n the G o e t s c h v. G o e t s c h , 990 As t h i s c o u r t has

court." 2008) .

previously held, to maintain life

the reason f o r " r e q u i r i n g insurance f o r the b e n e f i t ... to insure the 839, the

supporting parents of t h e i r that

children [ i s , ] children w i l l parent d i e s . " Civ. App.

quite obviously, receive support Jordan,

minor

i n the 688

event 2d as

supporting 842 (Ala.

J o r d a n v. In

So. case,

1997).

the

present

22

2090587 husband correctly points out, the total amount of child

s u p p o r t he w i l l be r e q u i r e d t o p a y u n d e r t h e d i v o r c e is $60,720;
3

judgment the

however,

the

divorce

judgment

requires

husband t o m a i n t a i n

a l i f e - i n s u r a n c e p o l i c y on h i s l i f e i n t h e than

amount o f $500,000, an amount more t h a n 8 t i m e s g r e a t e r

t h e t o t a l amount o f c h i l d s u p p o r t he i s r e q u i r e d t o p a y u n d e r the d i v o r c e judgment. A l t h o u g h i n t e r e s t w o u l d a c c r u e on any the husband might f a i l any accrued t o make, i t i s would total

c h i l d - s u p p o r t payments highly improbable that

interest

$439,280.

Further, although

t h e main o p i n i o n a s s e r t s t h a t t h e

h u s b a n d ' s c h i l d - s u p p o r t o b l i g a t i o n may be m o d i f i e d i n a f u t u r e a c t i o n o r t h a t he may be r e q u i r e d t o p a y p o s t m i n o r i t y support,

I c o n c l u d e t h a t t o r e q u i r e t h e h u s b a n d t o s e c u r e an o b l i g a t i o n resulting from a p o t e n t i a l judgment i n a f u t u r e a c t i o n filed i s beyond that speculative. possibility, so. See Even that

has not y e t been trial court had

i f the have v.

considered

i t would Treusdell 1995)

exceeded Treusdell,

i t s discretion

i n doing

671 So. 2d 699, 701

( A l a . C i v . App.

("[T]he

T h e h u s b a n d ' s c h i l d - s u p p o r t o b l i g a t i o n commenced on December 1, 2009. The y o u n g e r c h i l d w i l l r e a c h t h e age o f m a j o r i t y on J u l y 16, 2017. Thus, t h e h u s b a n d w i l l be r e q u i r e d t o make 92 m o n t h l y payments o f $660, w h i c h t o t a l $60,720.
3

23

2090587 matter of c h i l d support i s d i s c r e t i o n a r y , and i n r u l i n g must c o n s i d e r t h e needs o f t h e on

that matter,

the court

child

and t h e p a r e n t ' s p r e s e n t a b i l i t y t o meet t h o s e n e e d s , w i t h o u t s p e c u l a t i o n r e g a r d i n g t h e f u t u r e . " ( e m p h a s i s a d d e d ) ) ; Tatum v. Carrell, 897 So. 2d 313, 324 ( A l a . C i v . App. than 2004) ("A

j u d g m e n t where t h e r e must be r e v e r s e d . " ) ; 268 ( A l a . C i v . App.

i s no e v i d e n c e , o t h e r

speculation,

and G a z i p u r a v. G a z i p u r a , 1994) ("The

652 So. 2d 266, that the

mere p o s s i b i l i t y

h u s b a n d may become u n e m p l o y e d i n t h e f u t u r e i s s p e c u l a t i v e and should n o t be e f f e c t i v e i n d e v i a t i n g f r o m t h e [child-support]

guidelines."). B a s e d on t h e f o r e g o i n g , disparity between the I c o n c l u d e t h a t s u c h an e x t r e m e actual child-support

husband's

o b l i g a t i o n and t h e amount o f l i f e i n s u r a n c e maintain trial trial

he i s r e q u i r e d t o

i n o r d e r t o s e c u r e t h a t o b l i g a t i o n i s an a b u s e o f t h e discretion. judgment Accordingly, I would reverse that i t requires the the

court's court's

to the extent

husband t o m a i n t a i n life

a $500,000

l i f e - i n s u r a n c e p o l i c y on h i s

f o r the b e n e f i t of the c h i l d r e n .
Bryan, J . , concurs.

24



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