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Ivan PHILLIPS, Sr. v. Aprises PHILLIPS
Aprises Phillips v. Ivan Phillips, Sr.
Ivan Phillips, Sr. (“the husband”), appeals and Aprises Phillips (“the wife”) cross-appeals from a divorce judgment entered by the Shelby Circuit Court (“the trial court”). The parties appeal the portions of the judgment regarding child custody, the division of marital property, and child support. We affirm the judgment regarding child custody and the division of marital property. Both parties agree on appeal that the judgment regarding child support must be reversed because the trial court did not include all the income it was required to include in its calculations. We therefore reverse that portion of the judgment and remand the cause.
Facts and Procedural History
The husband and the wife were married on February 14, 2008. The parties have three children: I.P., born on February 19, 2007, Ia.P., born on December 18, 2008, and Ika.P., born on March 1, 2010 (“the children”). The wife is the biological mother and the husband is the stepfather of T.J., who is not a minor and is not the subject of any portion of the judgment on appeal.
On December 22, 2017, the husband filed a complaint in the trial court seeking a divorce from the wife. On February 4, 2018, the husband filed a motion seeking a pendente lite order granting him custody of the children and child support and ordering the wife not to dissipate the parties' assets.
On February 15, 2018, the trial court conducted a hearing on the husband's motion. The undisputed facts elicited at the hearing include the following: the wife had moved out of the marital residence in January 2018; the husband remained in the marital residence with the children and T.J.; and the wife lived in a rental home in a different county.
During the hearing, the trial court initially considered a proposed agreement on pendente lite issues presented by the husband's counsel. The proposed agreement included a provision that would have prohibited the parties from having an overnight guest of the opposite sex during their respective custodial periods. The wife, however, would not agree to the provision prohibiting B.S. (“the paramour”) from staying in her residence overnight when she had the children. The wife further requested a provision requiring T.J. to be in the marital residence during the husband's custodial periods. In the absence of an agreement, the trial court allowed the parties to present evidence and call witnesses.
Both the husband and the wife testified at the hearing. In addition, T.J. testified that she has known the husband since she was two or three years old and considers him as her father. T.J. testified that she had never seen the husband be physically aggressive toward the wife and that the wife had initiated all the incidents resulting in the police being called to the residence. T.J. testified that the wife does not take care of the children and has told the children that they have autism. T.J. admitted that the husband had bought her a new automobile but testified that the reason he did so was because the wife had taken her automobile.
On February 16, 2018, the trial court entered a pendente lite order granting joint legal custody to the parties, sole physical custody to the husband, and visitation with the children to the wife. In the order, the trial court specified that “[n]either party shall have overnight guests of the opposite sex to whom they are not related ․ by blood or marriage when the children are in his or her possession.” The trial court ordered the wife to pay the husband $407 a month for child support. Among other pendente lite rulings regarding the parties' property, the trial court ordered the parties not to dissipate assets, ordered the husband to maintain possession of the marital residence, and ordered the wife to maintain possession of her rental home.
On July 25, 2018, the trial court conducted a trial. The husband testified that he and the wife had been in a relationship since 2002, that they had lived together before his injury resulting in the amputation of his leg in 2007, and that he had received the funds from his settlement of a claim regarding that injury in 2009 after the parties were married in 2008. The wife testified that she had signed waivers and releases regarding future claims when the funds from the settlement were disbursed. The husband could not recall the wife's having signed paperwork for the disbursement of the funds, stating: “That was more than eight years ago.” The husband testified that the funds from the settlement were used for the benefit of the entire family, including the wife, throughout the marriage and to build the marital residence in 2010.
The wife testified that the funds from the settlement were initially placed in a joint account and were later transferred into other joint accounts, accounts in her name, and accounts in the husband's name. When asked whether he and the wife had placed the funds from the settlement into jointly held certificates of deposits (“CDs”) at the time they received the funds, the husband testified that “[the] money has been changed -- I can't -- if she has the document to say that, then I agree with it. I can't recall what I did with that money nine years ago. It's kind of went through a couple of different wealth management people.” The husband later testified that the settlement funds were used to purchase CDs and that “some [of the CDs] were in mine, some was in our name jointly and then we had some that were just in my name with my children. We had some that was just in her name with our children.” According to the husband, the funds were transferred multiple times among multiple accounts of different financial institutions. When asked whether each transfer of funds to a different financial institution always involved a transfer of some funds to the wife's account, some funds to joint accounts, and some funds to his account, the husband responded: “Yes, ․ if I recall correctly.”
According to the husband, the purpose for having funds in the wife's name was not as a gift to her or for her personal use. The husband testified that, in 2010 or 2011, funds were transferred into an account in the wife's name for the purpose of generating interest income in order to qualify for an insurance program for the children. The husband, however, maintained that the funds from the settlement were initially allocated into accounts that included accounts in the wife's name. The husband submitted an exhibit containing the wife's notes that he claimed showed her calculations for generating income to qualify for an insurance program for the children. The husband admitted that only one of the financial institutions listed in the wife's notes had held funds originating from the settlement and that the funds were not transferred to that institution until 2016 or 2017. According to the wife, her notes pertained to preparations for a transfer in 2017 of funds that were already in her name to an account of another financial institution that provided monthly, rather than quarterly or yearly, interest income. The wife testified that the children were already enrolled in the insurance program at that time and that monthly income was needed to continue insurance coverage.
The husband testified that, at the time of trial, the funds originating from the settlement were in some accounts jointly held by the parties, an account in only the wife's name that contained about $400,000 in investments, and an account in only his name that contained about $500,000 in investments. The wife testified that the investment account in her name contained about $360,000. The husband testified that the parties' last jointly filed tax return indicated that the parties had received interest income of $32,000 for the year. The husband testified that, in addition to interest income, he receives $1,957 a month in Social Security disability benefits as a result of his disability caused by the amputation of his leg. According to the husband, the children each receive $333 a month in Social Security benefits resulting from his disability.
The wife testified that the only income she receives is $600 a month in interest generated from the investment account in her name. The husband testified that the wife had worked as a registered nurse, earning $34,000 a year. The husband testified that the wife had been terminated from her employment in 2009 for cause. The wife testified that her termination occurred in January 2010, and she denied that her employment had been terminated for the reason stated by the husband.
Both the husband and the wife testified that the husband had encouraged the wife to obtain employment throughout the marriage. The husband testified that, after the wife's termination from employment, he did most of the cooking and cleaning for the family. The wife testified that she took care of the household and that the husband helped when he could. The wife testified as follows as to why she did not go back to work:
“I had to clean up. I had to take care of the kids. I had to go and take lunch to the schools and eat lunch myself. So that was three trips to the school and two lunch times during the day for me. There was no job that was going to allow me to take two lunch breaks and then get there late and leave early, not in the nursing world.”
The wife testified that she had asked the husband to obtain help for taking care of the household and that he had refused.
Both the husband and the wife testified that he wrote a signed letter dated November 29, 2017, stating that he would give $57,448 to the wife once she found employment. The wife testified that she was not currently employed, that she was physically able to work, and that she had the educational background to obtain a job. The wife testified that she intended to provide for her expenses partly from the proceeds from the settlement. The wife testified that, in order to become re-employed as a registered nurse, she would have to take some online courses and have her license reinstated. According to the wife, that process would take a few months if she had custody of the children. The wife testified that she has looked into self-employment through selling items on eBay.
The husband testified that the wife's relationship with the paramour was the “final straw” in the breakdown of their marriage. According to the husband, the wife spent time with the paramour every day during the months before he filed the complaint seeking a divorce; the wife was not present in the marital residence on a regular basis; the wife talked about her relationship with the paramour in front of him and the children; and the wife had continued the relationship with the paramour up to the time of trial. The wife denied that she had told the children about the paramour before the parties' separation.
The husband testified that he thinks that the paramour is a recovering alcoholic, that the wife was trying to get him in a rehabilitation clinic, and that the wife had paid for some of the paramour's legal fees. The husband testified that he had used a tracking device that showed the wife taking the paramour to a rehabilitation facility and that the wife had told him that she was taking him to a rehabilitation facility. The wife denied that she had attempted to place the paramour into a rehabilitation facility or that she had told the husband that she was going to do so. The wife testified that she was not aware of the paramour's having drug- or alcohol-addiction problems. The paramour testified that he was arrested for public intoxication in December 2017, that he had been submitting to drug and alcohol screening, and that the results of the screenings had been negative. The wife denied paying for the paramour's legal bills.
The husband testified that, around December 2017 or January 2018, the wife took the family automobile to visit the paramour one night and returned at 4:00 or 5:00 a.m. in time for the husband to take the children to school. According to the husband, he found a bag of marijuana and a half-smoked blunt 1 in the automobile. After showing the items to her, the husband said, the wife took them. The husband testified that “[the wife] said she didn't know whose it was. And if it was [the paramour's] maybe, she would rather [the paramour] smoke marijuana than do the hard drugs that he was on.” The husband testified that a couple of weeks later the paramour and his father drove to the marital residence where they received the items from the wife. The wife and the paramour denied that the paramour had left marijuana in a vehicle that she had driven.
The husband testified that, from the children's statements to him, he became concerned that the paramour was staying overnight in the wife's residence while the children were there, in violation of the trial court's pendente lite order, and that, therefore, he hired a private investigator. David Brooks, a private investigator, testified that he had conducted surveillance of the wife's residence and that, on the Thursday before the trial, the paramour had stayed overnight at the wife's residence while the children were there. Brooks admitted that it was possible that he would not have seen a person leaving the house through the rear exit and going through the woods. According to Brooks, the wife's residence did not have any extra garages and contained a shed in the backyard.
The husband and the wife testified without objection in regard to the February 15, 2018, hearing on pendente lite issues. The husband testified that the wife had objected to a proposed agreement because it contained a provision prohibiting overnight guests of the opposite sex while the children were staying in the house. In her testimony, the wife did not agree that the provision was a reason the parties had failed to reach an agreement. The wife testified that she was aware of the trial court's pendente lite order prohibiting overnight guests while the children were staying at her residence. The wife and the paramour denied that the paramour had lived in her residence or that the paramour had stayed overnight in her residence on the Thursday before the trial. The wife testified that, on that Thursday night, she picked up the paramour from his workplace with the children in the automobile and brought them all to her residence. The wife and the paramour both testified that the paramour had spent that night in a “back house” that was set up as a bedroom.
The husband denied having an affair before the parties' separation. The husband testified that, after the separation, he had taken three trips: two trips to visit a woman who lived in California and one trip to Florida with that woman. The husband testified that he had had sexual relations with the woman. According to the husband, he had had plans to see the woman again but had canceled those trips. The husband testified that, in addition to her weekend visitation, the wife had cared for the children while he was on two of the trips and that T.J. had cared for the children during one of the trips.
The wife testified that she was seeking a divorce because of the husband's abuse. According to the wife, the husband had grabbed her by the arm 10 years ago and had hit her sometime in 2011 because she had wanted to let down the window while they were driving. The wife testified that the husband had hit her again in 2011 for not coming to bed, that the husband had called the police, that she had told the police that she wanted to press charges because the husband had hit her and had done so before, that the husband had lied about the wife's pulling a knife on him, and that the police had arrested her. The husband testified that the parties had had an argument about tissue that he had brought into the home and that, then “[he] got [the] children and went in [the] bedroom and then [the wife] threw a camera in there and hit [the] doorway with a [butcher] knife and so [he] closed the door and called the [police department]. They came and arrested her.”
The wife testified that the next incident occurred in June 2016 when the husband slammed a hotel-room door on her leg. The husband testified that he did not close a door on the wife's leg. According to the wife, a few years before the trial, the husband became upset that the wife had not finished cleaning the house and the husband held her “by the arms hitting [her] in [her] stomach, over [her] arms, just back and forth” through a number of different rooms while she was trying to get away until he choked her and spit in her face. The husband denied that he had punched the wife in the arm and in the stomach. The wife testified that in late 2017 the husband saw that she was recording him with her cellular telephone and, she said, “he ran toward me and hit my arm and my phone fell ․” The wife further testified that, in January 2018, the husband kept her keys when she had an appointment to visit a rental place until she called the police and the police talked to him.
The wife also testified that, in February 2018, she tried to retrieve personal items from the marital residence and the husband blocked her vehicle from leaving with a golf cart. The husband testified that the wife had moved out of the marital residence at that time, that he had been granted possession of the marital residence, and that the wife showed up uninvited demanding personal items. The husband testified that they began to argue and he went outside to his golf cart to avoid interacting with her and called the police.
According to the wife, the husband had told her during their marriage that he would kill her and that no one would care if she died. The husband denied ever saying that to the wife but admitted that he probably had told her in an argument that he would be better off without her. The husband denied abusing, hitting, or striking the wife but testified that he had defended himself against her through actions like pushing her off of him. The husband testified that the wife had called the police three times: once accusing him of locking her out of the marital residence and twice accusing him of physical assault and keeping her in the marital residence. The husband denied locking out the wife or physically assaulting her. The husband testified that, after the police stated the wife's accusations, he showed the police the footage of surveillance cameras in the house and no charges were filed. The wife testified that she had called the police about the husband, but she could not answer whether charges had ever been filed against him, stating: “I don't have that information.”
The wife also claimed that the husband began physically abusing the children in the latter part of 2017. The wife testified that the husband was “[h]itting them over the buttocks, over the back, arms, legs.” The wife submitted a recording device as an exhibit that she claimed contained recordings of some of the instances of abuse and other evidence.
The husband admitted to disciplining the children by spanking them on their hands, but he stated that he did not hit the children on their arms, back, bottom, and legs. The husband denied hitting a child so hard that it knocked the wind out of her and testified that the child had fallen off some steps. The husband testified that a recording on the recording device showed the wife coaching the child into stating something against him. According to the husband, other recordings contained arguments between him and the wife, the children crying, and the children throwing temper tantrums. The husband testified that the recordings included instances in which he had pretended to admit something he had not done in order to keep the wife from harassing him.
The husband testified that he had cared for the children exclusively for a week in August 2018 when the wife was away to receive plastic surgery and that he had cared for the children after the wife began having an affair with the paramour in November 2018 and “was pretty much gone from the home.” According to the wife, the alleged abuse of the children began before she began seeing the paramour. The wife denied that she had spent a great deal of time away from the children. The wife testified that the children had been asleep and T.J. had been present most of the times that she had left the marital residence.
The wife testified that, although she had left the children with T.J., she now believes that T.J. suffers from depression. The wife denied accusing the husband of having sexual relations with T.J. The wife testified that she had only asked the husband about that matter. According to the wife, she did so because, she claims, he was abusing the children and, she believed, physical abuse and sexual abuse were generally related.
The husband testified that, in 2007, he lost part of his leg below the knee resulting in phantom pain, a bad hip, and arthritic knees. According to the husband, his doctor recommended that he limit his walking and sitting and recommended that he not lift more than 15 pounds. The husband testified that he can lift more than 15 pounds if he does not have to bend down. The husband admitted that he smoked marijuana for pain relief once or twice a week. The wife testified that the husband kept marijuana in the marital residence. The husband testified that he kept marijuana in a place that was out of reach of the children. The husband admitted that his prescription medication impacted his ability to drive but stated that he did not drive while taking the medication. The husband testified that he took the prescription medication only when the pain was unbearable and scheduled his intake around the times when he needed to drive.
The husband testified that he had cared for the children extensively the past 12 to 18 months and primarily throughout the marriage. The husband testified:
“I pretty much get my kids up for school; get them ready; take them to their school; make their snack; make their lunch; all pretty much school activities, extracurricular stuff that they do ․ all the school registration I did, typically stuff at home, they do with me.”
The husband added that he helped the children with their homework, that the children were doing well at school, and that the wife's residence is outside the county in which the children's school is located. Regarding school activities, the husband testified: “I think [the wife] might have done some stuff for the field day. She just started doing that after the divorce was filed to try to make good face.” Both parties testified that the children were thriving in their school and making good grades.
The husband testified that he became the primary caretaker of the children in 2011 when the wife became focused on a lawsuit involving vaccination of the children, which was resolved recently. According to the husband, the wife had alleged that the children received vaccinations in 2010 that caused them to develop autism and other conditions. The husband testified that the children do not have autism and that one child had received speech therapy for a time but no longer has any speech problems. The husband testified that the wife believes the children do not need vaccinations, that she does not trust opinions from doctors, and that the children now have a religious exemption at their school from receiving vaccinations. According to the husband, the wife refuses to give allergy medicine to one of the children. The husband testified that the wife has had conflicts with the children's doctors and that they had received a letter from one doctor's office telling them that the children were no longer welcome at that office.
The wife testified that she believed that the children have been harmed by vaccines they have received, that she has asked doctors to treat the children for autism, that she is opposed to the children's receiving viral vaccinations, and that she had filed a lawsuit regarding the children's receiving vaccinations. The wife testified that one of the children had adverse reactions after receiving a vaccination and that she believes that that child needs more speech therapy. The wife testified that she thinks the children need extra help with their schoolwork but that the husband disagrees. The wife denied neglecting the children to deal with the lawsuit. The wife testified that the children have a religious exemption from a rule requiring vaccinations in order to attend school, and she explained that exemption by testifying that “I just don't believe that God would want them to go through what they went through due to that particular vaccine.” The wife testified that she believes all the children have motor delays, that they cannot properly take care of themselves to an extent, and that they should not stand, walk, or run for too long. The wife denied disagreeing with the advice given by doctors but admitted receiving letters from doctors asking that the children not be brought back to the medical practice.
The wife testified that the husband has sometimes left the children unattended in an automobile while he goes to the store; that, since the husband has had custody of the children, she has had to clean the infection in one of children's ear that was pierced; that the children have had overgrown toenails; and that one of the children had a little scaling on the skin. The wife testified that, before the parties' separation, she was the children's primary caregiver and that she had brushed their teeth, combed their hair, braided their hair, made sure their faces were washed, prepared their lunches or purchased lunches from a fast-food restaurant, brought their lunches to school, picked up the children up from school, worked with them on their homework, participated in school activities, and driven the children places when the husband “could not drive because he was high off of his pills.” The wife testified that she also cooked for the children, made sure they had appropriate clothing, and took them to doctor and dentist appointments. According to the wife, when a child woke him up in the middle of the night, the husband would become upset.
On November 6, 2018, the trial court entered a judgment divorcing the parties and dividing the parties' marital property. As part of the property division, the trial court ordered the parties to sell the marital real estate and split the proceeds. Regarding financial accounts, the trial court noted that “[t]he parties have made reference to numerous accounts and balances and activities with reference to same; however, there appears to be no exhibits referencing or identifying same. This Court will therefore reference said accounts as best it is able from the testimony.” Accordingly, the trial court ordered that “[t]he Wife shall take sole title to and possession of the account into which the Husband caused to be deposited to [the] benefit of [the] wife of approximately $400,000, regardless of its current balance,” that “[t]he Husband shall take sole title to and possession of the account in which he has placed or continues to have approximately $500,000, regardless of its current balance,” and “any remaining accounts shall be the property of [the] Husband.” In the judgment, the trial court granted the husband sole legal and physical custody of the children. Regarding child support, the trial court stated:
“4. The children receive as a benefit from [the] Husband, Social Security Disability payments in the amount of $333.00 each. Due to the current amount of the Disability payments versus the amount contemplated pursuant to Rule 32, [Ala. R. Jud. Admin.], the Wife shall not have a current child support obligation to the Husband․”
On November 21, 2018, the husband filed a motion to alter, amend, or vacate the judgment. On December 5, 2018, the wife filed a motion to alter, amend, or vacate the judgment. On January 15, 2019, the trial court conducted a hearing on the parties' postjudgment motions. On February 15, 2019, the parties filed a joint motion to extend the time to rule on their postjudgment motions for an additional 30 days. On February 18, 2019, the trial court entered an order granting the motion.
On February 20, 2019, the husband prepared and submitted a Child-Support Guidelines CS-42 Form that indicated the parties' monthly gross income in the amounts of $1,957 for the husband and $2,833 for the wife. Later that day, the trial court entered an amendment to the judgment, stating, in relevant part:
“1. Testimony and evidence was presented during trial that the Wife previously earned $34,000.00 per year while working as a nurse and that she had the ability to obtain similar employment. Income is imputed to the Wife in the amount of $2,833.00 each month. The Husband receives income each month in the amount of $1,957.00. Accordingly, the Wife shall pay the Husband the sum of $753.00 per month for child support for the use and benefit of the minor children beginning February 1, 2018.”
On March 5, 2019, the trial court entered an amendment changing the starting date for child support to “February 1, 2019.”
On March 21, 2019, the husband filed a notice of appeal to this court. On April 3, 2019, the wife filed a cross-appeal. This court has jurisdiction pursuant to § 12-3-10, Ala. Code 1975.
The wife argues that the trial court should have awarded sole custody of the children to her.
“When evidence in a child custody case has been presented ore tenus to the trial court, that court's findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination--it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing. See Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994), wherein this Court, quoting Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App. 1993), set out the well-established rule:
“ ‘ “Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So. 2d 440 (Ala. Civ. App. 1989), and Vail v. Vail, 532 So. 2d 639 (Ala. Civ. App. 1988), and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow. Gamble v. Gamble, 562 So. 2d 1343 (Ala. Civ. App. 1990); Flowers v. Flowers, 479 So. 2d 1257 (Ala. Civ. App. 1985).” ’ ”
Ex parte Bryowsky, 676 So. 2d 1322, 1324 (Ala. 1996). We also note that, “[w]hen a trial court does not make specific findings of fact concerning an issue, an appellate court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.” McGough v. McGough, 710 So. 2d 452, 453 (Ala. Civ. App. 1997) (citing Ex parte Bryowsky, 676 So. 2d at 1324).
“ ‘When the trial court makes an initial custody determination, neither party is entitled to a presumption in his or her favor, and the “best interest of the child” standard will generally apply. Nye v. Nye, 785 So. 2d 1147 (Ala. Civ. App. 2000); see also Ex parte Byars, 794 So. 2d 345 (Ala. 2001). In making an initial award of custody based on the best interests of the children, a trial court may consider factors such as the “ ‘characteristics of those seeking custody, including age, character, stability, mental and physical health ․ [and] the interpersonal relationship between each child and each parent.’ ” Graham v. Graham, 640 So. 2d 963, 964 (Ala. Civ. App. 1994)(quoting Ex parte Devine, 398 So. 2d 686, 696–97 (Ala. 1981))․ Other factors the trial court may consider in making a custody determination include “the sex and age of the [children], as well as each parent's ability to provide for the [children's] educational, emotional, material, moral, and social needs.” Tims v. Tims, 519 So. 2d 558, 559 (Ala. Civ. App. 1987). The overall focus of the trial court's decision is the best interests and welfare of the children.’ ”
Morrow v. Dillard, 257 So. 3d 316, 324 (Ala. Civ. App. 2017) (quoting Steed v. Steed, 877 So. 2d 602, 604 (Ala. Civ. App. 2003)).
The wife asserts that she can provide for the needs of the children, that the husband did not take an active role in the children's well-being, that the husband cannot physically care for the children, and that the husband uses marijuana and takes pain medication that affects his ability to drive. The wife further asserts that the husband abused her and the children and that the husband's adultery had a detrimental effect on the children.
By granting the husband sole legal and physical custody of the children, the trial court implicitly determined that the husband had the ability to care for the children. The husband testified that he has been the children's primary caretaker since 2011 when the wife became focused on a lawsuit involving the children's vaccinations, that he cared for the children when the wife left the marital residence for long periods to be with the paramour, and that he cared for the children extensively when the wife moved out of the marital residence. The husband testified that he did not drive while using marijuana or taking pain medication.
The wife testified that she thinks the children need extra help with their schoolwork and that one of the children continues to have speech problems. The husband denied that that child continued to need speech therapy, and both the husband and the wife testified that the children made good grades at school. The wife testified that the husband did not groom and bathe the children properly and that she had driven the children to places when the husband had taken his pain medication.
We are mindful of the ore tenus presumption in favor of the trial court's custody determination.
“This presumption is based on the trial court's unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So. 2d 1029, 1032 (Ala. Civ. App. 1981).”
Ex parte Fann, 810 So. 2d 631, 633 (Ala. 2001). Our role does not involve reweighing the evidence received by the trial court. See Ex parte Bryowsky, supra. We conclude that the evidence does not support overturning a determination that the husband was active in the children's lives and had the ability to care for them.
Although the wife testified regarding instances of alleged abuse, the husband denied abusing the wife or the children. The trial court also received testimony that the conflicts involving the police were initiated by the wife. The husband testified that the wife had been arrested during one incident in which she allegedly used a knife during a dispute. The wife denied using a knife during the incident and claimed that she had been abused. “[T]he resolution of conflicting evidence is within the exclusive province of the trial court ․” Hedgemon v. United Parcel Serv., Inc., 832 So. 2d 656, 659 (Ala. Civ. App. 2002). Thus, the trial court could have rejected the wife's contentions, and we cannot overturn the trial court's decision that was made following the presentation of the disputed evidence in this case.
The wife asserts that the husband's extramarital relationship with another woman “had a detrimental affect on the children in that he failed to give [the wife] the opportunity to care for the children while he was out of town.” The evidence is undisputed that the husband left the children with T.J. during one trip with the woman but that the children stayed with the wife during the husband's two other trips since the parties' separation. We note again the husband's testimony that, before their separation, he had had to care for the children while the wife left the marital residence for long periods to be with the paramour. Furthermore, the trial court could have found from the conflicting evidence that the wife had violated the provision in the pendente lite order that prohibited the paramour from staying in her residence overnight while she had the children. See Hedgemon v. United Parcel Serv., Inc., supra.
The wife also asserts that granting her custody of the children would have involved only a minimal disruption in their lives. It is undisputed that the wife's residence was in a different county than the children's school and that the children made good grades at their current school. Thus, the trial court could have determined that granting custody of the children to the husband would result in the least disruption to their lives. Therefore, the trial court was not compelled to grant custody of the children to the wife, and we cannot reverse the judgment on that issue based on the applicable standards of review.
Both parties challenge the portion of the judgment dividing marital property.
“It is well settled that the division of the marital property is within the sound discretion of the trial court. Phillips v. Phillips, 489 So. 2d 592 (Ala. Civ. App. 1986). Furthermore, where, as here, the evidence was presented to the trial court ore tenus, this court will not reverse unless the trial court was plainly or palpably wrong or unjust. Lucero v. Lucero, 485 So. 2d 347 (Ala. Civ. App. 1986).”
Walker v. Walker, 564 So. 2d 992, 992 (Ala. Civ. App. 1990). “The division of property is not required to be equal, but it must be equitable, and the determination of what is equitable rests within the sound discretion of the trial court.” Rea v. Rea, 599 So. 2d 1206, 1207 (Ala. Civ. App. 1992).
“ ‘In making a division of property, a trial court should consider several factors, including the length of the marriage; the age and health of the parties; the future employment prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage.’ ”
Hartzell v. Hartzell, 623 So. 2d 323, 325 (Ala. Civ. App. 1993) (quoting Morrison v. Morrison, 540 So. 2d 80, 81 (Ala. Civ. App. 1989)).
In the judgment, the trial court ordered the parties to sell the marital residence, to split the proceeds of that sale, and to receive the financial accounts solely in their names. The husband received the remaining financial accounts. The husband argues that the account that contained approximately $500,000 solely in his name is separate property and not marital property and that, if the account is removed from consideration, the resulting division of marital property is inequitable. “[T]he spouse claiming that the settlement or award is his or her separate property bears the burden of proving that claim.” Smith v. Smith, 959 So. 2d 1146, 1150 (Ala. Civ. App. 2006). The wife testified that she signed waivers and releases as part of the settlement, and the husband testified that the funds from the settlement were used for the benefit of the family. The husband testified that the funds were initially transferred into accounts solely in his name, solely in the wife's name, and jointly in both of their names and that the funds in those accounts were transferred a number of times to a number of financial institutions. The wife testified that the funds were initially transferred into an account jointly held by both parties. The husband's testimony regarding past transactions was mostly prefaced with language such as “if I recall,” and the trial court noted the lack of exhibits identifying the transactions. We conclude that it was within the trial court's discretion to assess the weight of the husband's testimony and to determine whether the source of the funds in the account in his name had been kept consistently separate through all the transactions and financial institutions. The evidence did not compel the trial court to find the funds in the husband's account to be separate property.
The wife contends that the trial court should have granted her 75% of the marital assets because of the husband's misconduct. “[T]he conduct of the parties in regard to the cause of the divorce” is among the factors a trial court should consider in dividing marital property. Pilgrim v. Pilgrim, 596 So. 2d 942, 943 (Ala. Civ. App. 1992). The wife asserts that the trial court should have considered the husband's adultery and abuse. As discussed, the trial court received conflicting evidence regarding the husband's alleged abuse of the wife and the children, and we do not agree that the evidence compelled the trial court to find the alleged abuse as a primary cause of the divorce. Regarding the allegations of adultery, the husband denied having a sexual relationship with another woman before the parties' separation. Although the husband admitted to having sexual relations with a woman whom he saw on three trips since the parties' separation, abundant evidence indicates that, immediately before the divorce proceedings, the wife had had an affair with the paramour and that she would leave the marital residence for long periods to be with the paramour. The trial court could have found from the evidence that the wife's conduct with the paramour was a primary cause of the divorce. Therefore, we conclude that the wife has not demonstrated that she was entitled to 75% of the marital assets in the property division.
Regarding the calculation of child support, the wife contends that the trial court should not have imputed income to her. Rule 32(B)(5), Ala. R. Jud. Admin., provides:
“If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent's imputed income. In determining the amount of income to be imputed to a parent who is unemployed or underemployed, the court should take into consideration the specific circumstances of the parent to the extent known, including such factors as the parent's assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the parent, prevailing earnings level in the local community, and other relevant background factors in the case. The court may take into account the presence of a young or physically or mentally disabled child necessitating the parent's need to stay in the home and therefore the inability to work․”
“Rule 32(B)(5) clearly requires the trial court to impute income to a parent who, it finds, is voluntarily unemployed.” T.L.D. v. C.G., 849 So. 2d 200, 206 (Ala. Civ. App. 2002). “ ‘[T]he 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.” ’ ” Turner v. Turner, 210 So. 3d 603, 610 (Ala. Civ. App. 2016) (quoting Clements v. Clements, 990 So. 2d 383, 394 (Ala. Civ. App. 2007), quoting in turn Winfrey v. Winfrey, 602 So. 2d 904, 905 (Ala. Civ. App. 1992)).
The wife argues that she was not voluntarily unemployed because, she asserts, she cared for the husband and the children after the husband's injury in lieu of being employed. The husband testified that he was injured in 2007, that the wife was terminated from her employment as a registered nurse in 2009, and that he has been the primary caretaker of the children.2 Additionally, it is undisputed that, on November 29, 2017, the husband offered to give the wife money if she obtained employment. The wife testified that she had the physical ability and educational background to work as a registered nurse, but that she would need to take online classes to regain her nursing license, and that that process would take several months if she had custody of the children. The trial court did not grant the wife custody of the children. We discern no evidence that disturbs the trial court's discretion to have imputed income to the wife.3
The wife and the husband both argue on appeal that the calculation of child support did not properly include the parties' interest income. The record indicates that, although the interest income was referenced in testimony, it was not included in the CS-42 form submitted by the husband to the trial court. The wife further argues, and the husband agrees, that the husband's gross income should have also included the Social Security benefits the children receive as a result of his disability. “In accord with Rule 32, Ala. R. Jud. Admin., the trial court must take into account all sources of income of the parents when computing support obligations. The trial court has no discretion in this matter.” Massey v. Massey, 706 So. 2d 1272, 1274 (Ala. Civ. App. 1997). Rule 32(B)(2)(a), Ala. R. Jud. Admin., provides that “ ‘Gross income’ includes income from any source, and includes, but is not limited to, salaries, wages, ․ interest, ․ [and] Social Security benefits ․” Accordingly, gross income in the calculation of child support includes interest income and Social Security benefits received by a child because of a parent's disability. Harbison v. Harbison, 688 So. 2d 876, 878 (Ala. Civ. App. 1997) (holding that, “in computing the father's monthly gross income, the court should include the amount of the monthly Social Security payments the children receive” because of the father's disability); Rogers v. Sims, 671 So. 2d 714, 716 (Ala. Civ. App. 1995) (holding that trial court's computation of child support did not properly account for father's interest income).
The evidence indicates that the parties received $32,000 in interest income during the year before the trial and that interest had been generated from the funds from the settlement for a number of years. The CS-42 form in the record indicates that the husband's monthly gross income is $1,957, the same amount he testified he received in Social Security benefits for his disability. It is undisputed that, in addition, each of the children receive $333 a month in Social Security benefits as a result of the husband's disability. We conclude that the trial court's calculation of child support does not account for the parties' interest income and the Social Security benefits the children receive. We, therefore, reverse the portion of the judgment regarding child support.
For the foregoing reasons, we reverse the portion of the judgment awarding child support, and we affirm the other portions of the judgment. The cause is remanded for further proceedings consistent with this opinion.
2180489 -- AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
2180531 -- AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
1. A blunt has been described as “a cigar filled with marijuana.” Bone v. State, 706 So. 2d 1291, 1294 (Ala. Crim. App. 1997).
2. The wife testified that her employment was terminated in January 2010.
3. The wife asserts that she is caring for a child born on May 16, 2019. That child was born after the parties filed the notices of appeal. Therefore, that circumstance was not within the trial court's consideration in entering the judgment.
Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur.
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Docket No: 2180489, 2180531
Decided: February 14, 2020
Court: Court of Civil Appeals of Alabama.
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