Juanita Williams Trimble v. William Trimble
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REL 06/19/2009 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 C I V I L APPEALS OCTOBER TERM, 2008-2009 2080150 Juanita Williams Trimble V. William Trimble Appeal from Chilton Circuit Court (DR-86-212.05) THOMPSON, Presiding Judge. Juanita Williams Trimble ("the former wife") appeals from the judgment of the trial court entered as to her petition for a rule expenses nisi in which from William she sought Trimble reimbursement ("the of certain former husband"). The 2080150 judgment did not grant all of the relief the former wife had sought. Specifically, issue whether the trial court determined the former husband must reimburse that the the former wife for the college expenses for one of their children was moot because, the court found, settled by income deduction." those expenses "had been The trial court also determined that the former wife and the former husband each owned a onehalf interest husband owed in the marital residence the former share of maintenance wife and that the approximately costs on the house. $6,000 former for his The judgment was silent on the issue whether the former husband owed the former wife for his alleged failure to make all of the mortgage payments on the marital residence for which he was responsible under the original divorce judgment. Evidence adduced at the hearing on the former wife's petition for a rule nisi tended to show the following. parties were divorced in August 1987. The The original divorce judgment provided that the former husband was responsible for one-half of the mortgage payments on the marital residence. The former wife testified that, in 1994, the former husband stopped making his portion of the mortgage payments. She said 2080150 that she had made the entire mortgage payment each month from 1994 to 2007, when the mortgage was satisfied. The former wife calculated that the former husband owed her $30,394.60 for the missed payments. The former husband worked for the United States Service ("USPS"). From 1994 until his retirement Postal in 2001, income was withheld from his paycheck and paid directly to the former wife to cover both child-support former husband's share of the mortgage. payments and the In 2001, the former husband said, each of the parties' children had reached the age of majority, and he contacted the former wife about selling the marital home, but, he said, he did not receive a response from continued her. The former husband said that he had to pay the former wife his share of the mortgage payment out of his retirement pay from 2001 until 2005, when his mother entered a nursing home. He said that he had stopped making the mortgage payments so that he could pay for his mother's nursing-home care. The trial court income-withholding took order judicial in the notice court's of file a June 1994 showing that income was to be withheld from the former husband's pay and 2080150 further "showing that $81.59 every two weeks was [to be] paid for the mortgage payment." As to the issue of payment of college expenses, the record indicates that, in 1997, one of the parties' children received a ("Tuskegee") . scholarship to attend Tuskegee University At that time, the former wife filed a petition to modify the terms of the original divorce judgment. trial court ordered the former husband and the former each college to pay one-half of the child's The wife expenses at Tuskegee that were not covered by the scholarship, including tuition, books, and room and board. The order provided that the former husband was obligated to pay for the enumerated expenses was as long as the child a full-time student maintaining a "C" average. At the hearing on the instant petition, the former wife testified that, of "the receipts that [she] could still find," the former husband's share of the child's incurred at Tuskegee was $4,310.30. college expenses The child only attended Tuskegee for one year before transferring to the University of Alabama at Birmingham ("UAB"). The former wife also asserted 2080150 that the former husband owed $2,411.17 "for the receipts that [she] could still find from UAB." The former husband testified that he was not consulted about whether the child should transfer from Tuskegee to UAB. The child husband did said not have that the a scholarship child became at UAB. pregnant The and former left UAB before finishing one semester there. The child had not been in college for almost ten years at the time of the hearing. According to the former husband, before filing the instant petition in July 2007, the former wife had expenses never and raised had not the told issue him how of outstanding much he owed college for such expenses. The former wife asserts that the trial court exceeded its discretion established by "disregard[ing] that the former uncontradicted husband had failed proof" to pay that the former wife one-half of the mortgage payments as ordered in the divorce judgment. She also asserts that the trial court exceeded its discretion in failing to order the former husband to pay his share of their child's college expenses 2080150 When a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So. 2d 1060, 1995). 1062 (Ala. Civ. correctness is based ability observe evaluate to their App. in part the on parties credibility and This the and "presumption trial the court's witnesses of unique to Littleton demeanor." and v. Littleton, 741 So. 2d 1083, 1085 (Ala. Civ. App. 1 This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. V. McCoy, 777 So. 2d 141, 142 The judgment Somers (Ala. Civ. App. 2000). on the former wife's petition for a rule nisi states that the former husband and the former wife each owned a one-half interest in the marital residence. The judgment contains no specific finding as to whether the former husband was in arrears on his share of the mortgage payments, but the former wife was not awarded any money mortgage payments. for past-due The law is settled that, in the absence of 2080150 an order severing "judgment will a claim be or ordering deemed a final a separate judgment on trial, a all issues pleaded and any claims which are not specifically disposed of in the judgment will be deemed to have been rejected or denied." Poston v. Gaddis, 372 So. 2d 1099, 1101 (Ala. 1979); see also MBNA America Bank, N.A. v. Bodalia, 949 So. 2d 935, 938 (Ala. Civ. App. 2006); and Valley Steel Constr., Inc. v. Addison Fabricators, Inc., 658 So. 2d 352 (Ala. 1994) . In this case, the trial court clearly intended its judgment to be a final disposition of the matter. this case, we past-due trial conclude mortgage court took that payments judicial the was Under the circumstances of former wife's denied notice by that request for implication. The income was being withheld from the former husband's paycheck from the USPS for his share of the mortgage, but the former husband retired in 2001. There was no evidence indicating that money had been withheld fact, the from the former former husband husband's admitted retirement income. In that he did not pay his share of the mortgage from 2005 until 2007, when the house was paid off. 2080150 The uncontroverted husband evidence indicates that the former failed to make his share of the mortgage payments for two years. The original divorce judgment required the former husband to make those payments. The trial court's failure to award the former wife the money owed for those missed payments or to otherwise former wife order for those the former payments husband is so to reimburse unsupported evidence as to be plainly and palpably wrong. by the the Therefore, the trial court's judgment is due to be reversed as to this issue, and the cause is remanded to the trial court for the entry of a judgment that determines the amount of past-due mortgage payments the former husband owes the former wife. As to the payment of college expenses for the child who was a student at Tuskegee, we agree with the former husband that the former wife failed to meet her burden of proof that the former husband owed any money pursuant to the 1997 order requiring the parties to divide expenses for tuition, books, and room and board that was not covered by the child's scholarship. In this case, the former wife bore the burden of proving that the former husband owed her $4,310.30 for expenses the 2080150 child had receipts incurred at Tuskegee, a figure the former wife that is based "could still find" some ten on years after the payments they represented were allegedly made. See ArvinMeritor, Inc. v. Handley, So. 3d , [Ms. 2050951, Nov. 16, 2007] (Ala. Civ. App. 2 007) ; and Ex parte McFadden Eng'g, Inc., 835 So. 2d 996 (Ala. 2002). However, the record on appeal does not indicate that those receipts were admitted into evidence. Further, there was no testimony regarding what expenses the receipts memorialized. The 1997 order only obligated the former husband to pay toward expenses for tuition, books, and room and board. Also, there was no evidence presented indicating that, when the alleged expenses were incurred, the child was a full-time student at Tuskegee and maintaining a "C" average -- the conditions the trial court required to be met before the former husband obligated to pay the enumerated expenses. The former was wife simply failed to prove that the former husband owed her money pursuant to the 1997 order regarding college expenses. We refusing note the that the former reason wife's given request by the for trial court for reimbursement of college expenses was that those expenses, as well as child- 2080150 support payments, had been settled by income deduction. Because we conclude that the former wife failed to meet her burden of proving that the former husband owed her money for college expenses pursuant to the 1997 order, we need not determine whether those expenses were the subject of income withholding. 630, 634 See Wilson v. Athens-Limestone Hosp., 894 So. 2d (Ala. 2004) (noting that an appellate court "can affirm a trial court's judgment for any reason, even one not specifically given by the trial Stevenson, 820 So. 2d 810, 814 For the reasons set forth court" (citing Taylor v. (Ala. 2001))). above, that portion of the trial court's judgment finding that the former wife was not entitled to reimbursement of the child's college expenses is affirmed. However, to the extent that the judgment failed to order the former husband to reimburse the former wife for his share of the mortgage payments on the marital residence that he admitted he did not make, the judgment is reversed and the cause is remanded for the entry of a judgment consistent with this opinion. The former husband's request appeal is denied. 10 for an attorney fee on 2080150 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. Pittman, Bryan, and Thomas, JJ., concur. Moore, J., concurs in the result, without writing 11
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